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Florida Human Rights Act

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					The Florida Civil Rights Act




                              By Ryan D. Barack of Kwall, Showers, Coleman & Barack, P.A.




I. INTRODUCTION


Generally, the Florida Civil Rights Act ("FCRA"), Sections 760.01 - 760.11, Florida
Statutes, is interpreted in accordance with decisions construing Title VII and other
federal employment anti-discrimination laws.


However, there are some differences between the federal anti-discrimination laws and
the FCRA. These include differences in the scope of the FCRA, differences in the
administrative scheme, and differences in the remedies available to the prevailing
plaintiff.


II. DIFFERENCES IN THE SCOPE OF STATE AND FEDERAL STATUTES


A. Size Of Employer


The definition of "employer" in the FCRA is similar to that utilized in Title VII, although
without any reference to being engaged in commerce. "'Employer' means any person
employing 15 or more employees for each working day in each of 20 or more calendar
weeks in the current or preceding calendar year, and any agent of such a person."


B. Individual Liability


Based on the widely recognized premise that the FCRA should be interpreted in
accordance with federal discrimination law, a number of decisions have held that there
is no individual liability under the FCRA.


Notwithstanding these decisions, individuals can be liable under FCRA for certain types
of discrimination. See Fla. Stat. § 760.10(5) (prohibiting discrimination against persons
seeking licenses, certificates, credentials, to pass an examination, or to become a
member of a club, where those accomplishments are required in order to engage in a
profession, occupation or trade); Fla. Stat. § 760.11(1) (complainant may bring action
against, e.g., an employer "or, in the case of an alleged violation of § 760.10(5), the
person responsible for the violation . . .").


C. The FCRA Does Not Define "Disability" Or "Handicap"
The ADA defines the term "disability" or "handicap." Incredibly, the FCRA does not. In
the absence of a definition, different tribunals have looked to different authorities to
supply the definition. Some courts have applied the federal definition to FCRA cases.


Others have used the definition from Florida's Fair Housing Act: "Handicap means: (a)
A person has a physical or mental impairment which substantially limits one or more
major life activities, or he has a record of having, or is regarded as having, such
physical or mental impairment; or (b) A person has a developmental disability as
defined in s. 393.063." Fla. Stat. § 760.22(7).


In addition, the Florida Commission on Human Rights ("FCHR"), and at least some
courts, have applied the definition from the FCHR's rules. The FCHR's definition is both
vague and overbroad. On its face, this definition seems to include minor temporary
conditions such as a broken toe. It could certainly also be construed to include
someone with slightly impaired vision or hearing.


Florida also has a separate statute that broadly prohibits discrimination based on HIV-
positive status, the belief that someone is HIV-positive, the fact that someone has
been tested for the HIV virus, or the fact that an individual is a healthcare worker who
works with HIV patients. See Fla. Stat. § 760.50. This statute makes all of the
protections of the FCRA available to such individuals, and also includes its own
remedial provisions.


D. Pregnancy Discrimination Under The FCRA


Neither the FCRA nor its predecessor, the Florida Human Rights Act, expressly
addresses discrimination based on pregnancy. Section 760.10(1)(a) of both versions of
the law contains identical words: "[i]t is an unlawful employment practice for an
employer to discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment because of such individual's race, color,
religion, sex, national origin, age, handicap, or marital status." Fla. Stat. §
760.10(1)(a).


One Florida state appellate court has held that the predecessor to the FCRA did
prohibit discrimination based upon pregnancy. Federal district courts are divided on
the issue.


E. Marital Status Discrimination


Unlike federal anti-discrimination laws, the FCRA provides protection from
discrimination based upon marital status. The Florida Supreme Court has held that
martial status "means the state of being married, single, divorced, widowed or
separated, and does not include the specific identity or actions of an individual's
spouse." Donato v. American Tel. & Tel. Co., 767 So. 2d 1146, 1155 (Fla. 2000).
III. DIFFERENCES IN THE ADMINISTRATIVE SCHEMES OF THE STATE AND FEDERAL
STATUTES


The administrative requirements and procedures of the federal statutes are
significantly different than those mandated by the FCRA, so claims that may be viable
under federal statutes may be procedurally barred under the FCRA. Plaintiff must take
certain actions to insure compliance with state law procedural requirements.


A. Basic FCRA Procedure
The FCRA gives the complainant 365 days to file a charge with the appropriate
administrative agency, a window only slightly longer than the 300 days permitted by
federal law. Filing of a timely charge with the FCHR is a condition precedent to bring
suit under the FCRA.


The FCHR is supposed to investigate the charge within 180 days and determine
whether there is reasonable cause to believe a discriminatory practice has occurred.


B. The Workshare Agreement


1. Background


While the original statutory scheme of Title VII anticipated that all claims in deferral
states would first be investigated by the deferral agency and subsequently reviewed by
the EEOC, workload considerations have caused the EEOC to utilize a work-splitting
procedure. For many years, the EEOC has entered into workshare agreements dividing
workloads between the EEOC and deferral agencies.


The workshare agreement divides the principle jurisdiction of the agencies
geographically with the FCHR processing most dual-filed claims in North Florida and
the EEOC processing most claims from South Florida (with certain exceptions). As
always, each agency maintains jurisdiction to perform a substantial weight review of
the determinations of the other for the statutes over which the agency has primary
jurisdiction. The division of work is not solely based on geography. For example, the
EEOC takes charges under Title VII and the ADA which are based on events more than
240 but less than 300 days prior to the date of the charge.


2. Acceptance Of Charges Under Both Statutes


One of the most important aspects of the workshare agreement is the provision in
which the EEOC and FCHR have agreed that either agency's accepting a charge
automatically initiates the proceedings of Section 706(c) and (e)(1) of Title VII and
Section 760.6(10), Florida Statutes. In essence, each agency acts as the agent of the
other for the purposes of receiving charges and thus charges are considered to be
automatically dual filed.
3. Substantive Differences Related To The ADA


There are four substantive statutory differences between the ADA and FCRA
recognized in the workshare agreement. Specifically, the FCRA: (1) does not enunciate
a standard for evaluating safety requirements; (2) has no restrictions on inquiries into
disabilities and allows employers to require examinations; (3) does not prohibit
discrimination through contract; and (4) does not expressly prohibit discrimination
based on association with someone who has a disability. In recognition of these
differences, the FCHR will transfer back to the EEOC any initial charges it receives
involving these issues.


C. The Impact Of Determinations


The effect of the outcome of the agency determination is significantly different under
the federal and state statutory schemes. Under the federal statutes, the EEOC's finding
of cause or no cause is irrelevant to the plaintiff's right to sue. Although a
determination may be admitted into evidence in proper cases, it is not a prerequisite
to suit nor does it affect a plaintiff's right to sue.


Under Florida's statutory scheme for implementing the FCRA there are four potential
outcomes of a charge filed with the FCHR.


1. Reasonable Cause Determined Within 180 Days


First, the FCHR may investigate the charge within 180 days of the filing of the charge
and determine that there is reasonable cause to believe a discriminatory practice has
occurred. If the FCHR finds reasonable cause, the injured party has the choice of
bringing a civil action or requesting an administrative hearing.


2. No Cause Determination Within 180 Days


The second potential outcome is a finding of no reasonable cause within the 180 days,
which limits the aggrieved party's remedy to an administrative hearing, which must be
requested within 35 days of the no cause determination. The aggrieved party may not
file a lawsuit unless the no cause finding is overturned. This limitation on suit in court
was unsuccessfully challenged on an access to courts theory in McElrath v. Burley, 707
So. 2d 836 (Fla. 1st DCA), review denied, 718 So. 2d 166 (Fla. 1998).


3. No Determination Is Made Within 180 Days


Alternatively, the FCHR may be unable to complete its investigation within the allotted
180 days, in which case the aggrieved party may proceed as though reasonable cause
had been found. If the FCHR does not make a reasonable cause determination within
the 180 days then the general four-year statute of limitations for statutory violations
contained in section 95.11(3)(f), Florida Statutes applies. Thus, a potential plaintiff is
not punished for the FCHR's failure to process the charge in a timely fashion.
Unfortunately, the Florida Supreme Court has not stated when this four-year period
begins to run. Arguably, there are at least three possible dates that do not conflict with
the language of the FCRA. First, the four years could start to run when the employee
receives notice of the allegedly discriminatory action. Second, it could start to run on
the day the charge is filed. Third, it could start to run on the one hundred-eightieth
day after the charge is filed.


Precedent from the United States Supreme Court and at least one Florida district court
of appeal support the view that the four years begins to run when the employee
receives notice of the allegedly discriminatory action.


4. Determination Is Made After 180 days But Before Suit Is Filed


In Woodham v. Blue Cross & Blue Shield, 829 So. 2d 891 (Fla. 2002), the Florida
Supreme Court held that if the Florida Commission on Human Relations fails within
180 days to make a determination either way regarding whether reasonable cause
exists, the claimant may proceed to file suit regardless of whether a later no cause
determination is made.


IV. EXHAUSTION OF FCRA ADMINISTRATIVE REMEDIES


A. Dual Filing


Although a charge must be filed with the FCHR to preserve a FCRA claim, the charge
need not be initially filed with the FCHR by the complainant. Filing with the EEOC while
providing identification of the requested deferral agency on the charge and selection
of the box requesting dual filing is generally sufficient.


When a charge is dually filed with the EEOC and the FCHR, courts consider the date of
filing with he EEOC as the date of filing with the FCHR.


B. Right To Sue Letter From EEOC


Perhaps the most pervasive "deferral dilemma" is the tension between the EEOC
practice of issuing early right to sue letters either automatically or upon request of the
complaint. The FCRA, in contrast to Title VII, contains no provision for the FCHR to
relinquish jurisdiction prior to passage of 180 days without a decision on the merits or
a settlement.


There is a split of authority concerning the effect of such early right to sue letters on
FCRA claims, with the majority of federal and state courts holding that an early right to
sue letter without a decision on the merits does not terminate the FCHR's jurisdiction.


V. JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS OF STATE AND LOCAL AGENCIES
While the EEOC is not authorized to award damages, the FCRA does authorize
administrative agencies to award damages, and provides for enforcement of such
awards by the courts.


Orders of the FCHR, including orders entered following administrative hearings, may
be appealed to Florida's District Courts of Appeal. A reviewing court may not
substitute its judgment for that of the FCHR as to the weight of the evidence on any
disputed finding of fact, but should set aside the FCHR's decision and remand the case
if a material finding of fact is not supported by competent substantial evidence. A
court may also set aside an agency's findings because of an erroneous legal
conclusion. Because remedies awarded by a state agency are within the agency's
discretion, a court may not set aside an agency's award of remedies absent an abuse
of discretion.


VI. DIFFERENCES IN THE REMEDIES


Relief under the FCRA, like its predecessor the Florida Human Relations Act, is
modeled after federal law, specifically Title VII. Assuming the plaintiff is able to bring
suit in court, the plaintiff may recover damages under § 760.11(5), Fla. Stat.


A. Back Pay And Benefits


The FCRA has always been interpreted to provide relief consistent with Title VII.
However, no liability for back pay can accrue from a date more than two years prior to
the filing of the charge.


B. Compensatory Damages


The Court may award damages for "mental anguish, loss of dignity, and any other
intangible injuries." Fla. Stat. § 760.11(5).


C. Punitive Damages


No statutory standard is provided. Punitive damages awarded under § 760.11(5), Fla.
Stat. are not subject to the procedural and substantive limitations of §§ 768.72 and
768.73, but they are limited to $100,000.


The State and its agencies and subdivisions are not liable for punitive damages.


D. Reinstatement, Hiring, Promotion
The FCRA does not expressly provide for reinstatement, hiring, promotion, etc., but
those remedies are available.


E. Caps On Damages
Unlike Title VII, there is no dollar cap on compensatory damages under the FCRA. Any
downward adjustment to a compensatory damage award must be based on traditional
principles of judicial review of damage awards, as well as § 768.74, Fla. Stat.


However, the FCRA has a cap of $100,000 on punitive damages.


The FCRA also incorporates the limitations on the recovery of damages against the
State and its agencies and subdivisions set forth in § 768.28(5). Section § 768.28(5)
provides that 'neither the State nor its agencies or subdivisions shall be liable to pay a
claim or a judgment by any one person which exceeds the sum of $100,000 or any
claim or judgment, or portions thereof, which, when totaled with all other claims or
judgments paid by the State or its agencies or subdivisions arising out of the same
incident or occurrence, exceeds the sum of $200,000."


F. JURY TRIAL


The FCRA provides for right of trial by jury for claimants seeking compensatory and
punitive damages.


G. Interest On Judgment
1. Pre-judgment Interest


Generally, under Florida law, prejudgment interest is allowed from date of liquidation.


2. Post-judgment Interest


Any judgment for money damages shall bear, on its face, the rate of interest that is
payable on the judgment. The rate of interest stated in the judgment accrues on the
judgment until it is paid.


H. Attorneys' Fees


Fla. Stat. § 760.11(5) allows for the recovery of reasonable attorney's fees. The statute
provides that that "[i]t is the intent of the Legislature that this provision for attorney's
fees be applied in a manner consistent with federal case law involving a Title VII
action."


A contingency enhancement for attorneys' fees is not available in federal fee shifting
employment litigation. However, some have suggested that under Florida law a
contingency multiplier (not to exceed 2.5%) may be available.

				
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