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
1. 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.”
2. 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 . . .”).
3. 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.
4. 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.
5. 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.
1. 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.
2. The Workshare Agreement
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.
4.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
1. 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.
2. 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.
1. 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.
2. Compensatory Damages
The Court may award damages for “mental anguish, loss of dignity, and any other intangible injuries.” Fla. Stat. § 760.11(5).
3. 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.
4. Reinstatement, Hiring, Promotion
The FCRA does not expressly provide for reinstatement, hiring, promotion, etc., but those remedies are available.
5. 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.”
6. Jury Trial
The FCRA provides for right of trial by jury for claimants seeking compensatory and punitive damages.
7. 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.
8. 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.
By Ryan D. Barack
Board Certified Labor & Employment Lawyer