Although holder denied that this incident occurred

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Unformatted text preview: ng environment; and (5) that the employer knew or should have known of the harassment and *378 failed to intervene. See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1279-80 (11th Cir.2003) (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002)); Succar v. Dade County School Board, 229 F.3d 1343, 134445 (11th Cir.2000) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)). [6] At issue in the instant case is whether the harassment was directed at Russell because of her gender. See Succar, 229 F.3d at 1345 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). In its Final Judgment, the trial court concluded that there was insufficient evidence to support the jury verdict because there was no evidence offered at trial to support the occurrence of "certain conduct of a decidedly sexual nature." In reaching its conclusion, it is apparent that the trial court improperly utilized a divide-and-conquer approach to separate the alleged instances of misconduct into sexual conduct and non-sexual conduct. Rather, any harassment or other disparate treatment of an employee that would not occur but for the gender of the employee may, if there is a pattern or pervasiveness in the conduct, constitute "hostile work environment" sexual harassment. Moreover, offensive conduct is not required to include sexual overtones in every instance. See Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1013 (8th Cir.1988). Thus, when analyzing the sexual harassment issue, the trial court should have guided itself with the rule that sexual harassment conduct includes conduct that is not clearly sexual in nature. See Hall, 842 F.2d at 1014; King v. Auto, Truck, Industrial Parts and Supply, Inc., 21 F.Supp.2d 1370, 1379 (N.D.Fla.1998) ("harassing behavior lacking a sexual explicit content but directed at women and motivated by animus against women satisfies the requirement"). As the Eighth Circuit Court of Appeals stated in Hall, Intimidation and hosti...
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