What Florida's Ban on Marital Status Discrimination Means (and Doesn't Mean)

The Florida Civil Rights Act prohibits marital status discrimination in employment. i.e. discrimination based on the state of being married, single, divorced or separated.  What it does not do is prohibit discrimination based on the identity or actions of one's spouse. 

That's a pretty simple concept, and it's been the clearly established law in Florida since 2000, when the Florida Supreme Court issued its opinion in Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1155 (Fla. 2000). 

But that didn't prevent the Miami-Dade County Equal Opportunity Board recently from ruling in favor of Hilda Fish, whose employment with Industrial Affiliates, Ltd. was terminated because she married Mr. Fish, one of the operating partners of the business. The MDEOB ruled in favor of Ms. Fish even though the employer had replaced her with another married woman, which seemingly proves that it had no problem with the fact that Ms. Fish was married.


Fortunately for the employer, the Third District Court of Appeals corrected the error, holding that the MDEOB's decision "represents a clear departure from the essential requirements of the law resulting in a miscarriage of justice and is therefore quashed."  In a terse decision, the court noted that the lower court, an appellate panel from the Miami-Dade Circuit Court, had denied review "for reasons unknown."  It makes you wonder, did the MDEOB and the circuit court panel read Donato


In any event, the lesson of the Fish decision for Florida employers is clear.  It is perfectly legal to have an anti-nepotism policy that prohibits the employment of relatives or spouses of employees, and to take action against spouses whose employment runs afoul of this policy.  As Donato makes clear, discriminating against an employee because of the actions or identity of the employee's spouse is legal. It is only the state of being married, single, divorced or separated that Florida's ban on marital status discrimination protects against.



Admission of "No Reasonable Cause" Determination Reversible Error, Rules 4th DCA

Fourth District Court of AppealsA trial court's decision to admit into evidence a Broward County Civil Rights Division "no reasonable cause" determination was an abuse of discretion and constituted reversible error, according to a recent decision by the Fourth District Court of Appeals

The plaintiff in the case, Cameshia Byrd, alleged that her employer, BT Foods, Inc., a Wendy's franchisee, terminated her employment because she was HIV positive. She alleged violations of the Florida Omnibus AIDS Act, section 760.50(3)(b), Florida Statutes, and the Florida Civil Rights
Act, section 760.10(1)(a).  BT Foods asserted that it took Byrd off the work schedule because she failed to produce a doctor's note following an absence from work, and that Byrd never produced a doctor's note and never returned to work. 

At trial, over the objection of Byrd's attorney, the trial court admitted into evidence a "no reasonable cause" determination that had been issued by the Broward County Civil Rights Division.  The BCCRD had determined that BT foods "discharged the Charging Party because she did not produce a note from from her doctor's office or hospital and not because of her medical condition."  Defense counsel highlighted this fact during closing argument, and the jury returned a verdict for BT Foods.

On appeal, the Fourth DCA noted that although the federal public records exception to the hearsay rule included factual findings resulting from an investigation, Florida's public records exception was narrower.  On this basis alone, the determination letter might have been inadmissible.  But Byrd's attorney did not assert hearsay as the basis for his objection at trial.

Instead, Byrd's attorney argued that the probative value of the letters was substantially outweighed by the danger of unfair prejudice.  Rejecting a per se rule on this point, the court held that the admissibility of reasonable cause determinations is an issue best left to the discretion of the trial judge.  Nevertheless, in this instance, the Fourth DCA ruled that the trial court abused its discretion in admitting the determination letter "because the conclusory nature of the BCCRD’s determination letter left it with little probative value when compared to the substantial prejudicial effect it may have had on the jury’s ultimate assessment of Byrd’s credibility and the pivotal determination as to whether Byrd had indeed provided a doctor’s note to her employer."

The Byrd decision highlights the relatively unimportant role that agency determinations typically play at trial.  Whether an agency rules there is "reasonable cause" or "no reasonable cause" (or, in the EEOC's case, that it is "unable to conclude" there was a violation of the statutes), the determination is likely to be inadmissible anyway.  Most courts seem to realize that agency investigations of discrimination complaints are often cursory and their determinations unreliable.  The limited probative value of these determinations is likely to be outweighed by their prejudicial effect on jurors, who tend to assume, erroneously, that an agency has conducted a thorough investigation before issuing its determination.  Lawyers and judges usually know better.  And in all fairness to the agencies, given the number of discrimination charges filed every year, a thorough investigation of every charge is simply not possible. 



Supreme Court Upholds Mandatory Arbitration of Discrimination Claims Under Union Contracts

The following is a reprint of a client alert authored by EBG Attorneys Michael A. Levine, Evan J. Spelfogel, and Steven M. Swirsky.  It should be of interest to all private sector Florida employers with unionized employees.

On April 1, 2009, the United States Supreme Court issued its long-awaited decision in 14 Penn Plaza LLC, et al., v. Steven Pyett et al., No. 07-581, 556 U.S. ___ (2009), upholding mandatory arbitration of statutory employment discrimination disputes under union collective bargaining agreements. This decision is of potentially great significance to those employers who are currently defending employment discrimination claims brought by employees covered by such contracts. Under the Court’s 14 Penn Plaza decision, employers may now have a basis to move to dismiss such claims on the grounds that they must be grieved and arbitrated and may not be the basis of private discrimination litigation brought by the employees. The decision also offers a way to help ensure that future employment discrimination claims proceed through arbitration, rather than through burdensome and time-consuming litigation.

The Court’s Decision

The issue before the Court in this case was whether a provision in a collective bargaining agreement ("CBA") that clearly and unmistakably required employees covered by the CBA to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 ("ADEA") was enforceable. The Second Circuit United States Court of Appeals held the Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, forbade enforcement of such arbitration provisions, stating an employee could pursue such a claim in court notwithstanding the terms of the contract between the employee’s union and employer.

The CBA was between the Realty Advisory Board on Labor Relations, Inc. ("RAB"), a multi-employer bargaining association for employers in the New York City real estate industry, and Service Employees International Union, Local 32BJ ("Union"). The CBA required covered employees to submit all claims of employment discrimination to binding arbitration under specified dispute resolution procedures. After a change in business operations, a number of jobs were reassigned and the employees filed grievances challenging the reassignments. The grievances alleged that the job reassignments violated the CBA’s seniority provisions and the ADEA’s prohibition against age discrimination. During the arbitration proceedings, the Union withdrew the age discrimination claims but continued to pursue the employees’ claims that their contractual seniority and overtime rights had been violated, which claims were subsequently denied by the arbitrator. The employees then filed a complaint with the EEOC, alleging age discrimination under the ADEA. After the EEOC issued a right-to-sue letter, the employees filed suit in the United States District Court for the Southern District of New York, alleging the changes in their assignments violated the ADEA and applicable New York state and city laws prohibiting age discrimination. The employer responded by filing a motion to compel arbitration of the age discrimination claims, under the Federal Arbitration Act.

The District Court denied the motion because, it said, "Even a clear and unmistakable union negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable." It cited in support the decision of the United States Supreme Court in Gardner-Denver. The Court of Appeals for the Second Circuit affirmed, holding that Gardner-Denver remained the law and that a CBA could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.

In reaching its decision, the Second Circuit recognized that Gardner-Denver was "in tension" with the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), where the high court held that an individual employee who had agreed to waive rights to a federal forum could be compelled to arbitrate a federal age discrimination claim. The Second Circuit also noted the Supreme Court had previously declined to resolve this tension in its 1998 decision in Wright v. Universal Maritime Services Corp., 525 U.S. 70, 82 (1998), finding that the waiver at issue was not "clear and unmistakable."

In the Court’s 5 to 4 majority opinion in 14 Penn Plaza, Justice Thomas pointed out that the Union had negotiated on behalf of the employees and RAB had negotiated on behalf of 14 Penn Plaza, each had bargained in good faith and they had together agreed that all employment-related discrimination claims, including claims under the ADEA, would be resolved through arbitration. This, the majority found, was a freely negotiated term between the Union and RAB that readily qualified as a "condition of employment" that was subject to "mandatory bargaining" under the National Labor Relations Act ("NLRA"). Such contractual arbitration provisions, the Supreme Court said, must be honored unless Congress, in enacting the ADEA, had itself removed this particular class of grievances from the NLRA’s broad sweep in the field of labor-management relations. Since the ADEA did not preclude arbitration (and the Supreme Court had so held in Gilmer), the Court found the employees were bound to arbitrate their age discrimination claims. Arbitration, the Court noted, did not deprive the employees of any substantive statutory rights; rather, it merely was a substitute for a judicial forum.

In summarizing, the Supreme Court stated that its examination of the two federal statutes at issue in the case, the NLRA and the ADEA, yielded a straightforward answer to the question presented: the NLRA provides the Union and the RAB with the statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not limit that authority in the ADEA. Accordingly, the Court held, there was no legal basis for it to strike an arbitration clause that was freely negotiated and which clearly and unmistakably required the parties to arbitrate the age discrimination claims at issue.

In reaching its decision, the Supreme Court did not overturn Gardner-Denver but went to great lengths to narrow the holdings and invalidate dicta in Gardner-Denver and its progeny. The employees in 14 Penn Plaza argued that allowing a union to waive their right to a judicial forum in discrimination cases would substitute the union’s interests for the employees’ right to protection against discrimination, and that unions did not always represent the interests of certain of the employees as is their legal duty. The Court expressly rejected these arguments. The majority found that Gardner-Denver, Barrantine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) and McDonald v. West Branch, 446 U.S. 284 (1984) were all distinguishable from 14 Penn Plaza because, in each of those cases, the grievance and contractual arbitration provisions at issue did not expressly encompass statutory discrimination claims, as did the CBA between the RAB and the Union. In this regard, the Court noted that in 14 Penn Plaza, the Union-RAB CBA not only contained express anti-discrimination language referencing the ADEA specifically but, most significantly, it also identified as disputes that were required to be arbitrated under the CBA’s arbitration mechanism, all alleged violations of the enumerated anti-discrimination statutes.

Justice Thomas’ opinion, in which he was joined by Chief Justice Roberts and Justices Scalia, Kennedy and Alito, resolves, at least for the moment, the question of whether and in what circumstances contractual provisions calling for the mandatory arbitration of statutory discrimination claims that arise under collective bargaining agreements that expressly cover such claims and provide for arbitration of such claims, will be upheld. Further, the majority justices went to great lengths once again to emphasize their preference for arbitration and to reject judicial suspicion of arbitration’s desirability or arbitral tribunals’ competence to resolve statutory discrimination claims. Arbitral tribunals, the majority stated, are readily capable of handling the factual and legal complexities of statutory claims, and there is no reason to assume that arbitrators will not follow the law.

Addressing the concern that unions might not always rigorously pursue a bargaining unit employee’s discrimination claims, Justice Thomas highlighted the duty of fair representation imposed on labor unions by the NLRA, and the fact that an employee would have a claim against the union for breach of that duty if it were to be found to have discriminated or otherwise been guided by bad faith in addressing an employee’s grievance over discrimination. Thus, a union itself would be subject to liability under the NLRA if it illegally discriminated against older workers in either the negotiation or enforcement of a CBA or in deciding whether to pursue a grievance on behalf of an employee for discriminatory reasons. Further, notwithstanding 14 Penn Plaza, under the Supreme Court’s 2002 decision in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), employees covered by arbitration agreements retain the right to file age and other statutory discrimination claims with the EEOC, which may initiate court action and seek judicial intervention, although not financial remedies for the adversely affected employees. In sum, the Court noted, Congress has already provided remedies to employees if a union is less than vigorous in addressing its members’ discrimination claims.

Significant Impact for Employers

The 14 Penn Plaza v. Pyett decision has a number of significant and immediate practical implications for employers whose employees are covered by union contracts. These relate to any pending claims of discrimination and the defense of future claims, as well as future union contract negotiations.

First, employers with CBAs should examine their non-discrimination and arbitration provisions to determine if these provisions are within the scope of the 14 Penn Plaza decision and require arbitration of pending and future statutory discrimination claims without more expensive and time-consuming judicial proceedings. In those instances where contract language is either ambiguous or would not support arbitration under 14 Penn Plaza, employers should consider whether to seek to secure the inclusion of such terms in their contracts as they come up for renegotiation. Well-crafted revisions could potentially enable employers to limit dramatically the litigation of a significant number of discrimination cases and the potential for runaway jury verdicts.

Second, employers with existing union contracts prohibiting discrimination should review any pending discrimination litigation involving covered employees to determine whether there is a basis for motions to dismiss such claims under 14 Penn Plaza, and if so, to take timely and appropriate action based upon such analysis.

Of course, all of this may become moot if, as it did with Ledbetter, Congress ultimately moves to amend the ADEA and other federal anti-discrimination laws to expressly preclude the arbitration of such claims.

Record Jump In Job Bias Claims Filed With EEOC In FY 2008

The following is a reprint of a client alert authored by EBG attorneys Barry Asen and Steven Blackburn.  It should be of interest to all Florida employers.

On March 11, 2009, the Equal Employment Opportunity Commission (EEOC) announced that a record-breaking number of workplace discrimination charges—95,402, to be exact—were filed with the agency in Fiscal Year 2008. This number represents a 15.2 percent increase over the previous fiscal year, when the agency received 82,792 charges of discrimination against both public and private employers. This dramatic increase in the number of charges filed likely is an indicator of what is to come.

The EEOC’s fiscal year ends September 30; thus, the agency’s statistics do not include charges filed since the nation’s economic woes devolved into a crisis last fall. According to the Bureau of Labor Statistics, since the recession began in December 2007, about 4.4 million jobs have been lost, but more than half—2.6 million—of the decrease occurred in the four-month period from November 2008 through February 2009. Historically, as EEOC spokesperson David Grinberg acknowledges, charges increase dramatically the year following an economic downturn. Thus, Grinberg warns: "It’s possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008." In short, it looks like we may be headed toward another record-breaking year in which more than 100,000 workers file discrimination charges.

Breaking Down the EEOC’s Numbers

All major categories of charges filed with the EEOC increased in FY 2008. The largest annual increase involved allegations of age discrimination, which rose almost 29 percent to a record 24,582 charges. Retaliation claims experienced the next highest increase, climbing 22.6 percent to 32,690. The number of retaliation claims filed was second only to the historical leader, race discrimination, which, at 33,937 charges, experienced an 11 percent increase over FY 2007. Sex discrimination charges came in third with 28,372 charges filed, a 14 percent increase over FY 2007.

Other protected categories showing a double-digit increase in the number of charges filed include:

  • Religion: 14 percent increase (3,273 charges filed) 
  • National Origin: 13 percent increase (10,601 charges filed)
  • Disability: 10 percent increase (19,453 charges filed).

In FY 2008, the EEOC recovered approximately $376 million in monetary relief for thousands of employees, former employees and job applicants. This amount does not include monetary relief obtained by workers who filed discrimination charges with state or local human rights agencies or settlements and awards obtained by plaintiffs as a result of private lawsuits brought against employers in federal and state courts.

Reading the Tea Leaves

Looking ahead, the most troubling numbers from the EEOC’s FY 2008 report may be the enormous spike in age discrimination charges. Although data recently released by the Bureau of Labor statistics indicate that older workers fared better than their younger colleagues in holding onto their jobs at the beginning of the economic downturn, historical patterns suggest that they likely will experience a reversal of fortune in 2009.

Older workers who are laid-off while younger workers are retained may perceive age bias even where none exists, particularly if they had been with the company longer than their younger colleagues. Moreover, according to statistics recently compiled by the American Association of Retired Persons (AARP), older workers have a much harder time than younger workers finding a new job and are, on average, unemployed for more than six months. AARP’s findings are consistent with a 2005 study that found that, when interviewers are given resumes containing the applicant’s age, younger job applicants are 40 percent more likely to be called for an interview than are applicants over age 50. When combined, these factors suggest that we will see a significant increase in the number of age-bias charges and lawsuits in 2009.

Now add to the mix that the U.S. Supreme Court has made it easier for older laid-off workers to sue and win age discrimination cases. In 2005, the Court held that older workers need not prove that their employer intentionally discriminated against them; rather, they need only show that the challenged policy, such as a reduction-in-force (RIF), had a "disparate impact" on the company’s older workers. In other words, an employer may be held liable for age discrimination if a RIF resulted in a statistically significant disparity in the number of older workers (those over 40) laid off as compared to the number of younger workers who lost their jobs. Although an employer may counter unfavorable statistics by, among other defenses, asserting that the layoff decisions were based on a "reasonable factor other than age" (RFOA), in 2008, the Court placed the burden of proving the existence of an RFOA squarely on the shoulders of the employer.

Because RIFs typically involve groups of workers and "disparate impact" claims, they tend to result in high-stakes age (or race or sex) discrimination class actions. Moreover, the EEOC itself can bring a class action. Indeed, in announcing its FY 2008 statistics, the agency’s Acting Chairman, Stuart J. Ishimaru, declared: "The EEOC is committed to vigorously enforcing federal laws prohibiting employment discrimination and will continue to invest in programs such as its systemic litigation program to maximize its effectiveness." "Systemic litigation" is the agency’s terminology for class actions.

The Take Away

The dramatic surge in the number of charges filed last year with the EEOC, particularly the record number of age discrimination claims, underscores the broad reach and impact of the current economic crisis. As employers try to cope with the business challenges posed by the economic downturn, they need to address the myriad legal pitfalls inherent in such operational decisions as a RIF. The cost of a poorly planned and hastily implemented RIF can more than negate the financial benefit initially realized by the "cost-cutting" measure.