Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

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.

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A 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. 

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The Fourth District Court of Appeals has issued a revised opinion in Carsillo v. City of Lake Worth, which I reported on in September.  The result is the same under the revised opinion -- the FCRA prohibits pregnancy discrimination -- but the court has refined its analysis.  Or maybe refined is not the right term.... 

First, some background.  Some courts, including most recently John Antoon II, United States District Judge for the Middle District of Florida, in the case of Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS) (a case in which I represented the defendant, and which I reported on here) have held that the Florida Civil Rights Act does not prohibit pregnancy discrimination.  The logic of these decisions is as follows:  The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.

In Carsillo, the Fourth DCA rejected this argument, reasoning that "when Congress passed the PDA in 1978, it explained that it had intended to prohibit discrimination based on pregnancy when it enacted Title VII in 1964. Because it was the intent of Congress in 1964 to prohibit this discrimination, and ...we construe Florida statutes patterned after federal statutes in the same manner that the federal statutes are construed, it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy."

I'm not sure this makes sense.  As noted above, the U.S. Supreme Court held in Gilbert that sex discrimination did not encompass pregnancy discrimination under the original version of Title VII.  Since the Florida Human Rights Act was patterned after the original version of Title VII, how is it relevant that Congress said after Gilbert that it had intended to include pregnancy discrimination within the scope of Title VII?  Regardless of Congress' intentions, the high court said that Title VII could not be so construed.  And, therefore, it seems to follow that neither can the the Florida Civil Rights Act, which was patterned after Title VII, and was never amended to include pregnancy discrimination. 

Oh well, as I predicted in September, it may take the Florida Supreme Court to resolve this issue. 

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A federal judge in Orlando has reduced a $5.378 million jury award to $610,000 in a case of sexual harassment allegedly committed by a wealthy timeshare developer.  The plaintiff, a spa employee at one of the developer's properties, brought suit after allegedly rejecting the developer's sexual advances, including a proposal for a ménage à trois with the developer's wife. 

The plaintiff's claims included sexual harassment under Title VII and the Florida Civil Rights Act, and battery.  The jury found that the statutory claims were untimely, but found for the plaintiff on her battery claim.  The court described the trial as "a classic 'he said, she said' case where the jury was compelled to choose which side it found credible."  The jury awarded the plaintiff $102,233.14 in compensatory damages, and $5,276,640.00 in punitive damages. 

In a lengthy post-trial order, Judge John Antoon II of the U.S. District Court for the Middle District of Florida upheld the compensatory damages award.  "Considering the statutory and judicially-noted criteria," the Court wrote, "the Court is unable to conclude that the award of just over $100,000 in this case is outside the “reasonable range,” though it is certainly at the upper end of that range." Courts have recognized that review of “‘awards of compensatory damages for intangible, emotional harms is deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the demeanor of the witnesses.’”

With regard to the punitive damages award, Judge Antoon noted that "Florida courts have held that the commission of intentional battery 'supplies the requisite proof . . . justifying a punitive damages award.'"  However, "[t]he Florida legislature has placed caps on punitive damages awards, and the instant award is subject to those caps. Generally, '[a]n award of punitive damages may not exceed the greater of . . . [t]hree times the amount of compensatory damages . . . or . . . [t]he sum of $500,000.” § 768.73(1)(a), Fla. Stat."

The court went on to note that "[t]he only potentially applicable exception to this limitation is '[w]here the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.'" In what appears to have been an error by the plaintiff's attorneys, Judge Antoon noted that "the proposed verdict form that Plaintiff proposed before trial did not ask the jury to make these findings. Plaintiff cannot now claim entitlement to uncapped punitive
damages without these findings in the face of a plainly written Florida statute that requires
specific determinations by the fact finder in order for the caps not to apply."

The case is Myers v. Central Fla. Invs. Inc., M.D. Fla., No. 6:04-CV-1542-Orl-28DAB (M.D. Fla.).  Defendants have filed an appeal with the Eleventh Circuit.

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The Fourth District Court of Appeals ruled yesterday in Carsillo v. City of Lake Worth that the Florida Civil Rights Act prohibits pregnancy discrimination in employment.  Disagreeing with several federal court decisions, including Judge Antoon's decision in Boone v. Total Renal Laboratories, the court reasoned that because the Florida statute is patterned after Title VII, which considers pregnancy discrimination to be sex discrimination, the Florida law bars pregnancy discrimination.

I disagree with the Fourth DCA's decision in Carsillo and find Judge Antoon's analysis more persuasive. But since Boone is up on appeal, and I'm defense counsel on the case, I'll refrain from commenting further at this time.  It may ultimately require a decision by the Florida Supreme Court to resolve this issue.

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The Florida Civil Rights Act, unlike Title VII, does not prohibit pregnancy discrimination, according to a June 18, 2008 ruling by Judge John Antoon II, United States District Judge for the Middle District of Florida in Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS). Other courts have so ruled, though there is no unanimity of opinion on this issue. 

Here's the logic behind the argument that the FCRA does not prohibit pregnancy discrimination:  The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.

By the way, your humble correspondent and his colleague, Jennifer Poole, successfully defended the Boone case.

UPDATE:  The Daily Labor Report featured this case in its June 23rd edition. 

FURTHER UPDATE:  Employment Law 360 reported this case in its June 26th edition.  A copy of the article can be read here. 

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