Establishing a Claim for Retaliation
The elements of a retaliation claim under Florida law are essentially the same as under federal law. To prove a retaliation claim, an employee must make a prima facie showing that:
- He or she engaged in a protected activity under the Florida Civil Rights Act;
- He or she suffered an adverse employment action; and
- The adverse employment action was directly caused by engaging in the protected activity.
To show direct causation, the employee must show, at the very least, that the employer was actually aware of the protected activity at the time of taking any adverse employment action. See Russell v. KSL Hotel. Corp., [LexisNexis: "887 So. 2d 372"] (Fla. 3rd DCA 2004).
An employee does not need to prove an underlying claim of harassment or discrimination in order to win a retaliation lawsuit based on complaints of unlawful harassment or discrimination.
Like Title VII, after the employee establishes a prima facie case, the employer must articulate a non-discriminatory reason for the adverse employment action. Under Florida law, the rejection of an applicant or termination of an employee when the individual failed to meet bona fide requirements reasonably necessary for the performance of particular employment is not unlawful under the Florida Civil Rights Act. [LexisNexis: "Fla. Stat. § 760.10(8) (b)"].
In line with Title VII, Florida courts hold that there is no individual liability under the Florida Civil Rights Act. However, an individual can at least be liable under [LexisNexis: "Fla. Stat. § 760.10(5)"], which prohibits 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. [LexisNexis: "Fla. Stat. § 760.11(1)"].
Enforcement Through the Florida Commission of Human Relations and Judicial Proceedings
If an employee believes he or she has been retaliated against, he or she may file a complaint with the Florida Commission on Human Relations. An employee making a claim for retaliation must follow the same administrative requirements under the Florida Civil Rights Act as required to file a claim of discrimination.
Under the Florida Civil Rights Act, an employee complaining of retaliation must file a charge of retaliation with the Florida Commission of Human Relations (FCHR) within 365 days of the violation before being permitted to bring a private lawsuit against any employer. This is longer than the 180 days required under Title VII. [LexisNexis: "Fla. Stat. § 760.11"]. After a charge is filed, the FCHR has 180 days to investigate the charge to determine whether there is a reasonable basis to believe that retaliation has occurred. [LexisNexis: "Fla. Stat. § 760.11(3)"].
A charge under the Florida Civil Rights Act must be verified under oath. [LexisNexis: "Fla. Stat. § 760.11"]. Any changes or amendments to a charge of retaliation may be made within 60 days of the filing, unless good cause can be established for making a later amendment.
One key distinction between Florida and Federal administrative procedure involves the employee's right to sue. Under Title VII, the Equal Employment Opportunity Commission's finding of cause or no cause of retaliation is irrelevant to the plaintiff's right to sue. However, under the Florida Civil Rights Act, if the FCHR finds that there is no cause to believe that retaliation occurred, then the employee is not permitted to bring a lawsuit against the employer. In that instance, the employee's only option is to request an administrative hearing within 35 days of the no cause finding. ([LexisNexis: "Fla. Stat. § 760.11(7)"]). If the administrative law judge reverses the FCHR's no cause finding, only then may the employee bring a private suit against an employer. The suit must be brought within one year from the judge's final order. On the other hand, if the FCHR finds that there is reasonable cause to believe that retaliation occurred, the employee can bring a private lawsuit within one year of the finding, or request an administrative hearing within 35 days. [LexisNexis: "Fla. Stat. § 760.11 (5)"]; [LexisNexis: "Fla. Stat. § 760.11(6)"]. If the FCHR is unable to complete its investigation within 180 days, the employee may proceed with a private lawsuit against the employer, as if reasonable cause of retaliation had been found. [LexisNexis: "Fla. Stat. § 760.11(8)"].
If the FCHR makes a determination after 180 days, but the employee has not yet filed suit, the employee can still file suit regardless of whether a later no cause determination is made, so that the employee is not penalized for the FCHR's delayed determination. See Woodham v. Blue Cross & Blue Shield, [LexisNexis: "829 So. 2d 891"] (Fla. 2002); [Article:2357 "Employee Management > EEO - Discrimination: Florida"].
Unlike the EEOC, the Florida Civil Rights Act does authorize administrative agencies to award damages, and also provides for the enforcement of any damage awards by the courts.
An employee who is permitted to sue an employer under the Florida Civil Rights Act may recover damages under § 760.11(5). The remedies under the Florida Civil Rights Act are virtually the same as the remedies under Title VII, including back pay, compensatory damages, punitive damages, and attorney's fees. Under the Florida Civil Rights Act, however, no liability for back pay can accrue from a date more than two years prior to the filing of the charge of retaliation. There is also no dollar cap on compensatory damages against private employers, and punitive damages under the Florida Civil Rights Act are capped at $100,000.00. The Florida Civil Rights Act also provides for unlimited emotional distress damages.
The Florida Civil Rights Act provides for right of trial by jury for claimants seeking compensatory and punitive damages.
Local ordinances also prohibit retaliation against an individual for engaging in protected activity.
City of Tampa
The City of Tampa Human Rights Ordinance, Chapter 12, prohibits discrimination based on the same protected classes as the Florida Civil Rights Act, and also extends protection to employees based on sexual orientation and gender identity or expression (trans-gendered individuals). Tampa, Florida Code of Ordinances Sec. 12-26.
The City of Tampa Code mirrors the Florida Civil Rights Act and prohibits employment discrimination against any employee of an employer. The code defines employer to include any person who has five (5) or more full time employees working more than thirty (30) hours per week, or who has more than fifteen (15) employees irrespective of the number of hours per week, in each of the thirteen (13) or more calendar weeks in the current or preceding calendar year, and any agent of such a person. Tampa, Florida Code of Ordinances Sec. 12-17. The code prohibits retaliation against an employee because he or she has opposed any practice made an unlawful by the City's antidiscrimination laws, or because he or she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the city code. Tampa, Florida Code of Ordinances Sec. 12-26(e).
If an employee experiences retaliation, he or she may file a complaint with the City Administrator. Tampa, Florida Code of Ordinances Sec. 12-46. An employee making a claim for retaliation must follow the same administrative requirements under the Code as for a claim of discrimination, and is entitled to the same remedies. See [Article:2357 "Employee Management > EEO - Discrimination: Florida"].
Under the Miami-Dade County Code of Ordinances, it is unlawful to fail or refuse to hire or to otherwise discriminate against any individual based on race, color, religion, ancestry, sex, pregnancy, national origin, age, disability, marital status, familial status or sexual orientation of any individual or any person associated with such individual. Miami-Dade County, Florida Code of Ordinances Sec. 11A-25.
The Code of Metropolitan Miami-Dade County defines an employer as any person who in the regular course of business has five (5) or more employees in Miami-Dade County in each of four (4) or more calendar weeks in the current calendar year and any agent, acting manager, contractor or subcontractor of such person. Miami-Dade County, Florida Code of Ordinances Sec. 11A-25(2). The code makes it unlawful to retaliate or discriminate in any manner against a person because he or she has opposed a practice declared unlawful by the code, or because he or she has supported a person protected by the code because he or she has filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding, hearing, or conference conducted under the authority of the code. Miami-Dade County, Florida Code of Ordinances Sec. 11A-10(1).
The Fair Employment Practices Director has exclusive jurisdiction to resolve any complaint that is a of violation of the Miami Code filed by or on behalf of an employee of Miami-Dade County. Any complaint must be within one hundred eighty days (180) after the alleged unlawful practice occurs. Miami-Dade County, Florida Code of Ordinances Sec. 11A-27; See [Article:2357 "Employee Management > EEO - Discrimination: Florida"].
In December 2014, Miami-Dade County passed an ordinance amending the county's antidiscrimination law and prohibiting employment discrimination based on gender identity and gender expression. The new ordinance which will prohibit discrimination against transgender individuals defines gender identity as person's innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth (e.g., the sex listed on their birth certificate). Gender expression is defined as the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, mannerisms, speech patterns and social interactions. Social or cultural norms can vary widely and some characteristics that may be accepted as masculine, feminine or neutral in one culture may not be assessed similarly in another. The ordinance will be effective 10 days after enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Miami-Dade Board of Commissioners.
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[Article:2449 "Employee Management > EEO - Retaliation"]
Florida Commission on Human Relations
City of Tampa Law and Ordinances
Miami-Dade County Code