On Friday, The Eleventh Circuit upheld a sexual harassment jury verdict against the Florida Department of Corrections. In Beckford v. Fla. Department of Corrections, female employees were subject to rather explicit sexual harassment by prison inmates, including something called “gunning” (I will let you read the opinion for that definition). The employees repeatedly complained to prison management and even suggested remedial measures that could be taken. When the prison failed to take action to prevent the behavior, the employees brought a lawsuit claiming they were subject to a hostile work environment.
The Eleventh Circuit found
[t]itle VII required the Department to adopt reasonable remedial measures to protect its female employees from the sexually hostile environment that the inmates created. The jury was entitled to find that the Department made almost no effort to protect its employees from this sex-based harassment.
Notably, the Eleventh Circuit found that the Department of Corrections could not assert a Faragher defense, which allows employers to avoid vicarious liability by asserting that “the Department exercised reasonable care to prevent or promptly correct any sexual harassment and the employees unreasonably failed to take advantage of any preventive or corrective opportunities provided.”
The Court held that a Faragher defense was not available here because it is limited to situations where the sexual harassment involves supervisors and not third parties.
When, as here, employees complain of harassment by someone other than a supervisor, the Faragher defense does not apply.
To read the full opinion, written by Judge Pryor, click here.
Updated
The Huffington Post is reporting that Elena Kagan will be President Obama’s Supreme Court Nominee.
Unlike Justice Sotomayor who had at least some history for employment lawyers to look at to try to guess how she might decide issues, see here, Solicitor General Kagan does not any written opinions to look at. As a result, we look to things like the fact that while Dean of Harvard Law School, in 2004, she refused military recruiters access to campus facilities to protest the “don’t ask, don’t tell” policy. She also clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit and for Supreme Court Justice Thurgood Marshall.
One thing that I have been able to locate is that her student note was titled: “Note, Certifying Classes and Subclasses in Title VII Suits, 99 Harvard Law Review 619 (1986).” I think that this probably represents a good sign for employment lawyers.
The number of legal articles Kagan has writen is pretty slim. What she did write suggests an interest in First Amendment issues, again something that I take as a good sign for employment lawyers.
- Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 University of Chicago Law Review 413 (1996).
- When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 University of California at Davis Law Review 957 (1996).
- Confirmation Messes, Old and New (Book Review), 62 University of Chicago Law Review 919 (1995).
- Regulation of Hate Speech and Pornography After R.A. V, 60 University of Chicago Law Review 873 (1993). An abbreviated version of this article appears in Laura Lederer and Richard Delgado, eds., The Price We Pay (Hill & Wang 1995).
- The Changing Faces of First Amendment Neutrality: R.A. V v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29.
I will continue to see what I can locate on Solicitor General Kagan.
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.