Presented to OCBA Labor & Employment Law Section
October 30, 2018
© Copyright 2018 - Travis R. Hollifield; all rights reserved.
Central Florida's Anti-Discrimination County Ordinances a/k/a
WHY SUE UNDER ANYTHING ELSE?
In Central Florida, there are three counties (Orange, Volusia, and Osceola) that have enacted ordinances that expressly prohibit discrimination and retaliation in private sector employment relationships (with one county -- Osceola -- extending the protection to its own government). This presentation focuses on common protections offered by the ordinances with additional discussion concerning their respective dissimilarities.
I. The Ordinances.
In 2010, Orange County was the first of the three counties to enact an antidiscrimination ordinance. See Orange County Ordinances Article I; Section 22-1 et seq. Volusia County followed suit in 2011 and Osceola County enacted its ordinance in 2015. See, respectively, Volusia County Ordinances Article I; Section 36-1 et seq. and Osceola County Ordinances Article I; Section 27-1 et seq. All three ordinances cover private sector employers with five (5) or more employees for each working day in each of four (4) calendar weeks in the current or preceding calendar year. However, Osceola County also adopted its ordinance as being applicable to its own government thereby expressly waiving sovereign immunity. See Osceola Ord. at § 27-5(b).
II. Protected Characteristics.
Some, but not all, of the protected characteristics in the ordinances are recognizable to Title VII, ADEA, ADAAA, and Florida Civil Rights Act (“FCRA”) practitioners. The familiar characteristics of age, race, color, religion, national origin, disability, sex, and marital status are all included in the three ordinances’ scope of protection. All three also prohibit discrimination against a person’s “familial status” and “sexual orientation” which, of course, are not expressly included in Title VII or the FCRA. Additionally, the Volusia ordinance prohibits “personal gender identity” discrimination while Osceola protects “gender identity and expression.” Let’s examine these newer and perhaps less familiar protected characteristics.
A. Familial Status.
All three ordinances use the same definition for “familial status”:
Familial status shall mean an individual’s status established when such individual who has not attained the age of eighteen (18) years is domiciled with (i) a parent or other individual having legal custody of such individual; or (ii) a designee of a parent or other individual having legal custody, with written permission of such parent or other individual. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen (18) years.
B. Sexual Orientation.
Here is where the three ordinances begin to diverge. In Orange County, “sexual orientation” is defined this way:
Sexual orientation shall mean an individual’s actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity or expression. [Emphasis added].
In Volusia County, the definition reads:
Sexual orientation shall mean an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or asexuality. [Emphasis added].
In Osceola County, the following definition is used:
Sexual orientation shall mean an individual’s actual or perceived heterosexuality, homosexuality, or bisexuality.
As can be gleaned from the above definitions, Orange County includes the concept of “gender identity or expression” within sexual orientation. However, both Volusia and Osceola have separate definitions for this protected characteristic.
C. Personal Gender Identity/Gender Identity and Expression.
In Volusia County, “personal gender identity” is defined in this manner:
Personal gender identity shall mean an individual’s self-identified perception as a member of a particular gender, or an individual’s sense of personal and social belonging to that gender. Gender-related expression, appearance, or behavior shall be determinative with regard to personal gender identity. An individual’s assigned sex at birth shall not be determinative with regard to personal gender identity.
In Osceola County, “gender identity” and “gender expression” have their own respective definitions:
Gender identity shall mean a 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 shall mean all of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, 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.
While these definitions certainly increase the scope of what is actionable in an employment discrimination context, there are other subsections in the ordinances that specifically address employees’ usage of restrooms, showers, and similar facilities along with dress and grooming standards.
Generally speaking, with respect to restrooms and showers, employers must permit reasonable access to adequate facilities that “are not inconsistent with the employee’s sex as established with the employer.” In Orange and Osceola, if an employee has transitioned to another gender before employment, that transition must be honored by the employer. After employment has begun, where the employee informs the employer about a transition in writing, the employer must honor the employee’s transition with respect to the use of facilities. In Volusia, there is no writing requirement and the ordinance expressly indicates that transitioned employees may use facilities “consistent with his or her transsexual status.”
As for grooming standards, Orange and Osceola require employers to allow an employee to adhere to reasonable dress and grooming standards for the gender to which the employee has transitioned or is transitioning so long as the employee provides written notice to the employer of the transition. Again, Volusia has no written notice requirement and instead expressly permits employees the right to choose whether to adhere to dress and grooming standards of their anatomical gender or personal gender identity.
All three county ordinances prohibit retaliation. They utilize the same language:
It shall be unlawful for a person to retaliate or discriminate in any manner against an individual because such individual opposed a practice prohibited by this chapter or prohibited by existing federal or state law prohibiting discrimination; or to retaliate or discriminate in any manner against an individual because such individual has filed a complaint, testified, assisted or participated in any manner in any investigation, proceedings, hearing or conference under this chapter or under any federal or state law prohibiting discrimination. [Emphasis added].
Therefore, the ordinances have both a so-called “opposition clause” and “participation clause.” Moreover, unlike traditional federal and state laws banning retaliation, these three ordinances also prohibit coercion, intimidation, threats, or interference towards employees who wish to exercise their rights under the ordinances or to assist others in the exercise of their rights:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or an account of his having exercised or enjoyed, or on account of his having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
As such, covered employers who discourage their employees from seeking the protection of these ordinances may find themselves as defendants in a civil claim arising under a coercion/intimidation/threat/interference theory.
IV. Civil Claims and Remedies.
All three ordinances permit aggrieved employees who are employed by covered employers to bring a civil action in court seeking both equitable and legal relief. The statute of limitations is one year. There are no “administrative remedies” with any agencies to exhaust. However, in Volusia County only, 21 days before suit is filed, an employee must first provide a letter via certified mail return receipt requested to the employer outlining his or her intention to bring a lawsuit and a detailed explanation of the grounds for the suit.
The remedies available under the ordinances include:
… a temporary or permanent injunction or other equitable relief, a temporary restraining order, an award of actual damages, including back pay, punitive damages, an award of reasonable attorney’s fees, interest, and costs, or other such relief as the court deems appropriate.
There are no caps on actual or punitive damages. Under longstanding Florida law, the use of the term “actual damages” in a statute is synonymous with “compensatory damages.” Ross v. Gore, 48 So.2d 412, 414 (Fla. 1950) (in context of libel statute) and Miami Herald Pub. Co. v. Brown, 66So.2d 679, 680 (Fla. 1953) (same). Federal courts adhere to the same principle. See, e.g., E.E.O.C. v. W&O, Inc., 233 F.3d 600, 615 (11th Cir. 2000) (in Title VII/Pregnancy Discrimination Act context); Marchman v. Credit Solutions, Inc., 2011 WL 1560647 at *7-8 (M.D. Fla. 2011) (in context of FDCPA claim); and Grasso v. Grasso, 2015 WL 5159188 at *1 (M.D. Fla. 2015) (in context of Florida statutes prohibiting exploitation of the elderly).
Perhaps the most thorough explanation of actual damages being construed as compensatory damages comes from the California Supreme Court when addressing a housing discrimination statute in Walnut Creek Manor v. Fair Employment & Housing Com., 54 Cal.3d 245, 255 (Cal. 1991):
Section 12987 authorizes the commission to order a respondent who has violated the housing provisions of the act to pay “actual damages.” Neither party disputes that the term “actual damages” as used in section 12987 means compensatory damages, and the Court of Appeal so held. This conclusion follows from the legal as well as the common and usual meaning of the term. (See 22 Am.Jur.2d (rev.), Damages, § 24, p. 50; Oleck, Damages to Person and Property (rev. ed. 1961) § 12, p. 22 [hereafter Oleck]; see also Webster’s New Internat. Dict. (2d ed. 1958) p. 27, col. 3 [defining “actual” as “[e]xisting in act or reality; ... in fact; real;—opposed to ... speculative”].) Although most cases construing the term have done so in the context of a judicial rather than an administrative proceeding, nothing in the history of the act suggests that in authorizing the commission to award actual damages the Legislature intended the phrase to be construed differently than it is understood in the law of damages. (Cf. Morehead v. Lewis (N.D.Ill.1977) 432 F.Supp. 674, 678 [construing the federal fair housing act].) The inference, rather, is to the contrary. Consequently, like the parties, we take no issue with the Court of Appeal’s determination that the phrase “actual damages” as used in section 12987 means compensatory damages, or that compensatory damages include nonquantifiable general damages for emotional distress and pecuniarily measurable special damages for out-of-pocket losses.
Indeed, the U.S. Supreme Court has determined that “actual injury” or damages flowing therefrom include both economic and non-economic damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (“We need not define ‘actual injury,’ … [s]uffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering).
V. Attorney’s Fees and Costs.
Like Title VII and the FCRA, all three ordinances permit a prevailing plaintiff to recover reasonable attorney’s fees, interest, and costs. The ordinances expressly incorporate the sanctions provisions of Fla. Stat. § 57.105 to redress the raising of unsupported claims or defenses, service of motions, and damages for delay of litigation.
VI. Jury Trial.
The ordinances are silent on the right to a jury trial. However, because the available remedies include legal relief and are not strictly limited to equitable relief, a right to jury trial exists. O’Neal v. Florida A&M Univ., 989 So.2d 6, 9-11 (Fla. 1st DCA 2008) (“ … [A]s a party seeking ‘to invoke rights and remedies of the sort traditionally enforceable in an action at law,’ [Plaintiff] had a concomitant right to trial by jury, as a matter of Florida constitutional law … In Florida, as long as an action presents a legal issue, even if the legal issue is merely ‘incidental to the equitable issues,’ trial courts must grant requests for trial by jury.”).
The three ordinances examined in this presentation provide greater protections for plaintiffs than Title VII, ADAAA, ADEA, and the FCRA with respect to the breadth of protected characteristics (familial status, sexual orientation, and gender identity & expression), employer coverage (5 employees instead of 15), and damages (no caps). Plus, there is direct access to court without the need to first go to the EEOC or FCHR or otherwise exhaust administrative remedies (except for the 21 day notice and waiting period in Volusia). Employers in Orange, Volusia, and Osceola and their counsel should be prepared to deal with an increase in the litigation of claims arising under these ordinances as more plaintiffs and their counsel learn about the benefits of initiating suit thereunder.