Civil Rights Violations

SEXUAL HARRASSMENT AND DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND OTHER APPLICABLE FEDERAL LAWS

OVERVIEW:

Employers conduct toward employees is governed by 4 major federal laws: 1) the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. Additionally, Florida has its own Civil Rights Act modeled after the Federal Acts which prohibits discrimination and harassment of employees based upon the same protected classifications.

Federal Laws Prohibiting Job Discrimination:

1 Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

2 The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; Employers may not reduce wages of either sex to equalize pay between men and women. A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex. A violation may also occur where a labor union causes the employer to violate the law.

3 The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; The ADEA's broad ban against age discrimination also specifically prohibits:

• Statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
• discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
• Denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

4 The Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

5 The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys' fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.

Titles I and V of the Americans with Disabilities Act, as amended

Individuals with a Disability:

An individual with a qualified disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability. An entity subject to the ADA regards someone as having a disability when it takes an action prohibited by the ADA based on an actual or perceived impairment, except if the impairment is both transitory (lasting or expected to last six months or less) and minor. Major life activities are basic activities that most people in the general population can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, thinking, and eating. Major life activities also include the operation of a major bodily function, such as functions of the immune system normal cell growth, brain, neurological, and endocrine functions.

An individual with a disability is "qualified" if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

Title VII: EMPLOYMENT DISCRIMINATION

Title VII prohibits discrimination in employment practices such as: firing, firing, job advertisements, promotions, layoffs, testing, recruitment and transfers. Occasionally an employer can base their employment decision on a person’s gender, race or age etc. if the employer can demonstrate a truly legitimate reason for the decision.

According to the United States Supreme Court, discrimination in violation of federal civil rights laws occurs when:

• a) the employee is a member of the protected class of people (race, age, sex or gender, national origin, religion etc.);
• b) the employee or application was qualified for the job from which he or she was fired or for which he or she applied;
• c) the termination or rejection, including loss of promotion happened even though the employee or applicant was qualified;
• d) the position was filled by a person who is not a member of the protected class.

Also prohibited and a separate and distinct cause of action exists for actions by an employer to retaliate against an employee who complains or reports of discrimination or harassment.

REMEDIES AND DAMAGES FOR CIVIL RIGHTS VIOLATIONS:

QUESTION: WHAT CAN I RECOVER?

ANSWER:

Any employer or business who discriminates may be held liable for back pay (past wages), front pay (future wages), other compensatory damages such as mental anguish or pain and suffering, and punitive damages (damages awarded by a court or jury to punish the employer for the intentional unlawful and discriminatory conduct). Reinstatement can only be obtained by or through the EEOC or Florida Human Rights Commission.

• Back pay. The court will order payment of back pay from the date of discrimination to the date of the court judgment. In order to make the plaintiff whole, this will include wages, probable overtime payments, sick leave, vacation, pension benefits, health insurance, and anything else that has a monetary value. The court will then reduce that amount by the amount that the plaintiff earned (or with reasonable effort should have earned) during the same period of time.
• Hiring, promotion, or reinstatement
• Front pay: Front pay is money awarded for lost compensation during the period between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement. Like back pay, front pay essentially is the equivalent of lost earnings. Courts traditionally permitted Title VII plaintiffs to recover front pay when appropriate, even though Title VII does not specifically provide for front pay.
• The U.S. Supreme Court has held that front pay is not to be considered a part of compensatory damages under the 1991 Civil Rights Act (“CRA”). This means that front pay is not subject to the 1991 CRA’s cap on compensatory damages. The Court’s decision means that an employer found liable for intentional discrimination under Title VII may be liable for front pay and back pay, in addition to compensatory and punitive damages.
• Federal appeals courts are split over the issue of whether federal law allows an award of punitive damages without an award of actual damages. The traditional common law rule is that punitive damages are not appropriate where the plaintiff fails to demonstrate actual harm.
• However, at least one federal court has found the traditional rule is no bar to a punitive award because the front pay award serves the purpose of compensating plaintiff for economic losses resulting from the unlawful discharge. The court found the common law policy prohibiting punitive damages where a plaintiff has not shown any harm is not involved where a plaintiff has shown wage loss.
• Other actions that will make the victim "whole" (put the victim in the condition he/she would have been in but for the discrimination)
• Attorney fees. A prevailing plaintiff can recover attorney fees under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). In addition, prevailing parties recover "costs" which include filing fees, transcripts, and other items.
• Injunctive relief ordering that certain conduct be stopped or requiring changes to policies or practices
• Compensatory damages for future pecuniary loss, emotional pain and suffering, mental anguish, and other non-pecuniary losses. Compensatory damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). This will include things that are somewhat imprecise and don't always have a clear monetary value such as humiliation, emotional distress, inconvenience, loss of reputation.
• Punitive damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). These damages are designed to punish past wrongdoing and deter future wrongdoing, and the plaintiff must prove that the employer acted with "malice" or in reckless disregard for federally protected legal rights. There are lots of detailed rules about exactly how and when an employer can be required to pay punitive damages, as well as rules as to how much these damages can be.
• Liquidated damages. Three statutes allow a court, in specific circumstances, to award liquidated damages equal to the amount of back pay: Equal Pay Act, Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA).

QUESTION: WHAT ARE THE LIMITS OR CAPS ON DAMAGES

ANSWER:

Most federal statutes have limitations on how the money that can be recovered for compensatory damages and punitive damages. These caps range from $50,000 to $300,000 (based on the compensatory and punitive damages combined), depending on how many employees an employer has 2 forms of damages are excluded from the caps: back pay and front pay.

Under the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Statutory caps on damages are imposed for both compensatory and punitive damages. The combined damage caps are based on the number of employees an employer has working for it. The breakdown is as follows:

• For employers who have 15 to 100 workers: $50,000;
• For employers who have 101 to 200 workers: $100,000;
• For employers who have 201 to 500 workers: $200,000;
• For employers who have in excess of 500 workers: $300,000.

If you have fewer than 15 employees you may not have a right to remedies under State or Federal Civil Rights Acts, but at Feldman Fox & Morgado we have successfully resolved claims against employers under alternative theories or causes of action. Contact us via email of by phone to discuss the case.

FLORIDA CIVIL RIGHTS DAMAGE LIMITS:

Florida’s Civil Rights Act does not limit or cap the compensatory damages for emotional pain and suffering. If you file with the Florida Commission on Human Rights, you may be limited in your ability to file a civil action in Court. If the FCHR makes a finding of “no cause” meaning your claim is without merit, you are not allowed to file a complaint in civil court, and instead must appeal this decision through administrative remedies. We recommend if you are timely filing a charge of discrimination or harassment that you file with the EEOC, assert dual filing and dual Federal and State Civil Rights violations. Thereafter, if no decision is reached by the EEOC on your claim within 6 months (sometime earlier) you can request a “right to sue” letter, which will allow you to proceed to file a complaint in Court for damages. You will have only 90 days to file the suit. Failure to timely file suit is fatal to your case. Florida Civil Rights laws cap or limit punitive damages at $100,000.

We have extensive experience in evaluating cases and work with our clients to seek the damages they are entitled to under the laws. Through research, jury verdicts and keeping abreast of the law, we are able to put a realistic value on your case in order to present a claim to the EEOC or Florida Human Rights Commission, to the offending employer or to a jury.

Contact the experienced civil rights lawyers of Feldman Fox & Morgado at one of our 4 offices in Ocala, Tampa, Miami and Naples for a FREE INITIAL CONSULTATION. In civil rights cases we never charge our clients a fee and we only get paid if we recover damages from a settlement, judgment or jury verdict. Email us on this website or call us directly.

QUESTION: THE PRIMA FACIE CASE UNDER TITLE VII FOR SEXUAL DISRIMINATION: WHAT DO I HAVE TO PROVE?

ANSWER:

A female will have an actionable case against an employer or business for sexual discrimination if the following elements are established 1) she belongs to a protected class; 2) she was qualified for her position, 3) she was discharged despite her qualifications (suffered an adverse employment action); 4) she was terminated under circumstances which give rise to an inference of unlawful gender discrimination. If you suspect that you have been discriminated against by your employer because of your gender or sex, contact the firm of Feldman Fox & Morgado for a free initial consultation.

III PROHITIBED ACTS RECOGNIZED AS UNLAWFUL SEXUAL HARASSMENT:

• Requests for sexual favors in exchange for employment benefits, advancement or higher pay
• Unwanted sexual propositions
• Sexually graphic materials on display or shown to you on computers or cell phones
• Leering, whistling or gestures of a sexual nature
• Comments about a woman’s appearance or body, comments of a sexual nature
• Unwanted sexual contact or touching, such as pinching, grabbing or bruising against another person’s body.

The Courts will use the “McDonnell Douglass” burden shifting analysis on discrimination and retaliatory claims as well. Under this analysis, after an employee presents a prima facie case of discrimination, retaliation or harassment the employer must present legitimate justifications for the actions or conduct. Thereafter, the McDonnell Douglass framework falls away, and the court must determine whether a reasonable jury could infer discrimination from the combination of: 1 the plaintiff’s prima facie case; 2 any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; 3 any further evidence of discrimination that may be available to the plaintiff.

QUESTION: WHAT IS A HOSTILE WORK ENVIRONMENTG AND DO I HAVE A CLAIM FOR HARRASSMENT OR HOSTILE WORK ENVIRONMENT?

ANSWER:

When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, TITLE VII is violated. Harris v. Forklift Sys, Inc, 510 US 17, (1993). If your employer has created an environment that makes doing your job emotionally difficult and harmful, an employee may be justified in leaving the employment as well. In most instances to secure your right to seek remedies through the courts, you must first report the harassing conduct to the employer and afford the employer an opportunity to correct and counsel the individual involved. However, in situations where the employer is small and the company is without an HR department or where making the complaint would entail complaining to the offending person, you may still have a right to pursue remedies.

QUESTION: HOW LONG DO I HAVE TO FILE A COMPLAINT AGAINST MY EMPLOYER FOR HARRASSMENT OR DISCRIMINATION?

ANSWER:

Generally, employees have 180 days to file a complaint or charge with the EEOC for violations of Title VII in order to protect their rights. See 42 USC 2000e-2)a)(1). However, recent case law such as HOLLAND V. SAM’S CLUB, US DIST COURT, 8TH CIRCUIT, JANUARY 9, 2007 indicate that the time TO FILE A CHARGE OF DISCRIMINATION IS NOW EXTENDED TO 300 DAYS FROM THE DATE OF THE OCCURRENCE OF AN ALLEGED UNLAWFUL EMPLOYEMENT PRIACTICE. 42 USC 2000e5(e)(1).

There are exceptions to the 180 day time limit: a) there is no time limit to file an Equal Pay Act (EPA) charge, but it is advisable to file within 180 days. If you are also covered by the Florida Civil Rights Act, you have up to 365 days to file a charge. Only state law extends the 300 days deadline for age discrimination charges. If state and local anti-discrimination laws also cover you by Fair Employment Practices Agencies (FEPAs), you should “duel file” your charge, even though only one of the agencies will be handling the charge. Call or email us for assistance with filing your charge online or by mail with the EEOC or Florida Human Rights Commission.

If the EEOC issues a dismissal and notice of rights or a notice of right to sue (form 161) you have only 90 days to file a case in State or Federal Court or your claims will be barred forever.

Once the claim is pending with the FCHR for 180 days you can file a lawsuit in Court unless a no cause finding has been issued. The lawsuit based on a State Discrimination claim must be filed within 4 years from the alleged discriminatory conduct OR 1 year from the date the FCHR has issues a probably cause determination in your case. These deadlines are the statute of limitations in discrimination and harassment claims.

If the Employer engages in a serious of separately actionable intentionally discriminatory acts, then a fresh/new violation takes places when each act is committed and new charging times apply.

At Feldman Fox & Morgado, we will be your advocate and assist you in filing a charge or harassment of discrimination with the EEOC or Florida Human Rights Commission. Contact us for a free consultation and to discuss the facts of your case. Feldman Fox & Morgado handles civil rights claims including harassment, discrimination and retaliation throughout the State of Florida, including in the cities of: Tampa, Ocala, St. Petersburg, Clearwater, Gainesville, Miami, Ft. Lauderdale, Naples, New Port Richey, Palm Harbor, Sarasota, Bradenton and Lakeland. In most cases, the process can be handled completely by telephone.

Feldman Fox & Morgado has successfully negotiated financial resolutions in an expedited manner with offending employers prior to even filing a charge or complaint with the EEOC or Florida Human Rights Commission. If you are in urgent need of compensation and in danger of losing your home or filing bankruptcy, ask us if there is a means to expedite your claim.

QUESTION: WHAT INVESTIGATION IS REQUIRED AND WHAT DEFENSE DOES AN EMPLOYER HAVE:

ANSWER:

• A Nothing requires company to conduct a full blown, due process, trial type proceeding in response to complaints of sexual harassment. All that is required of an investigation is
  • 1 reasonableness in all of the circumstances, and the permissible circumstances may include
    • a conducting the inquiry informally in a manner that will not unnecessarily disrupt the company’s business, and
    • b in an effort to arrive at a reasonable fair estimate of the truth.
  • 2 the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided. Burden of proof on defendant as AFFIRMATIVE DEFENSE. To prevail, an employer must show not only that it fulfilled its responsibility, but also that the employee failed to fulfill hers.

RULES OF REPORTING:

Any Employee who believes that he or she has been subject to harassment or violence in any form should report the incident or conduct immediately to his or her manager or to employee relations. An employee must comply with the reporting rules and procedures her employer has established.

Employee must make choice even if in fear of losing her job or damaging her career prospects. If you want the employer to be vicariously liable for actions of harasser, either choice is to end the harassment.

OTHER AFFIRMATIVE DEFENSES AND DEFENSES

1 inter-sexual flirtation is not sexual harassment. Oncale v. Sundowner Offshore Services, Inc, 523 US 75 (1998)

2 if the employee did not want the harassing behavior reported or acted upon, the employer would not have been placed on proper notice of the harassment, and the employer is not liable. Olson v. Lowe’s Home Centers, Inc., 130 F.app’x 380, (11th Cir 2005).

3 warning and counseling of the harasser: sufficient defense where the allegations are substantiated. See Fleming v. Boeing, 120 F.3d 242 (11th Cir 1997) (talking to the harasser and telling the complainant to report any further problems was, as an initial measure, enough to constitute immediate and appropriate corrective action) (also, giving the harasser a verbal warning and transferring the complainant to a different work group in the same facility also constituted immediate and appropriate corrective action) (issuance of counseling memorandum to the harasser was sufficient).

***What is appropriate remedial action will necessarily depend on the particular facts of the case…including the effectiveness of any initial remedial steps.

RULE: THE EMPLOYEE DOES NOT GET TO CHOOSE THE REMEDY.

QUESTION: WHAT IS THE STANDARD FOR HOLDLING EMPLOYER LIABLE FOR HARRASSING CONDUCT OF CO-WORKERS NOT SUPERVISORS:

ANSWER:

An Employer will be held liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.

ALL THE EMPLOYER MUST DO IS INTERVENE, ACT, STOP THE CONDUCT.

At Feldman Fox & Morgado, we over 50 years combined legal experience handling cases in State and Federal Court, including extensive trial experience. We will fight for the rights of the injured and those employees harmed by the conduct of offending and unlawful employers. If you are the victim of harassment, discrimination or retaliatory conduct, contact us immediately. You should hire attorneys that are prepared to take your case to trial and to a jury. We do not back down from large defense firms typically employed by Employers. We are different, dedicated and determined to recover the compensation you deserve and are entitled to under the law. If necessary, we are prepared to go to trial.

In some cases, the conduct of the Employer may violate other laws such as Florida’s Whistleblower Act and you may have additional laws to seek recovery. Contact Feldman Fox & Morgado for your free initial consultation at one of our offices in Tampa, Ocala, Naples and Miami. We do not charge any fees to our clients for civil rights claims, and we only get paid if we recover a judgment or settlement.