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.
In a series of posts I am going to discuss the differences. First up, the administrative scheme.
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.
