By: Charles B. Jimerson, Esq.
Frequently our clients ask us general questions regarding the day-to-day operations of their business. In order to prepare a client for how to form corporate policies reacting to sexual harassment claims, we first had to educate them on the process of how an aggrieved employee goes about pursuing a claim. What follows is an overview of the claim filing process. Knowing the process of how employee complaints are made will help your business in formulating a defense if that time should ever come.
In order for an aggrieved employee to file a sexual harassment claim, that employee must file the claim with the Florida Commission on Human Relations (FCHR) and with the Equal Employment Opportunity Commission (EEOC) within a statutorily prescribed period. A proper claim is founded upon the provision that “all individuals within the state [are provided] freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status” and that all persons have a right to “protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.” Fla. Stat § 760.01(2).
Under Federal Law, Title VII of the Civil Rights Act of 1964 provides that sex discrimination and sexual harassment in the workplace are prohibited. 42 U.S.C.A. § 2000e-2. Section 703 of Title VII, 42 U.S.C.A. § 2000e-2, makes it an unlawful employment practice for an employer “to discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment because of such individual’s . . . sex.” Id. As a prerequisite to filing a Title VII court action, an aggrieved person must first file a timely “Charge of Discrimination” with the EEOC setting forth the facts giving rise to the sexual harassment. See The U.S. Equal Employment Opportunity Commission internal guidelines on charge processing procedures. [i]
In Florida, this charge must be filed within 300 days from the date of the illegal act. The EEOC has 180 days to investigate the claim. Id. In reviewing a charge, the EEOC may make written requests for information, interview people, review documents, and as needed, visit the facility where the alleged discrimination occurred. Id. The charge may be selected for the EEOC’s mediation program if both the charging party and the employer express an interest in this option. Id. Mediation is offered as an alternative to lengthy investigation. Participation is confidential and voluntary, and if mediation is unsuccessful, the charge is returned for investigation. Id. A charge may be dismissed at any point if, in the EEOC’s best judgment, further investigation will not establish a violation of the law. Id. When a charge is dismissed, a notice, or “Right to Sue” is issued in accordance with the law, which gives the charging party 90 days in which to file a lawsuit on his or her own behalf. Id.
If the evidence gathered establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter that explains the finding. Id. The EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination. Id. If the EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit. Id. If the EEOC decides not sue, it will issue a “Right to Sue” letter closing the case and giving the aggrieved party 90 days in which to file a lawsuit on his or her own behalf. Id. A “Right to Sue” letter from the EEOC is a procedural prerequisite to filing a lawsuit on the claim of sexual harassment. Litigation must be filed within 90 days of receipt of the “Right to Sue Letter;” otherwise, the Title VII case may be time-barred and therefore lost forever. Id.
On the state leve, sexual harassment is a violation of the Florida Civil Rights Act of 1992. See Fla. Stat. §760.10. In order to bring a cause of action under the Florida Civil Rights Act, the party must initially file a charge of discrimination with the Florida Commission on Human Relations (“FCHR”) within 365 days of the last act of sexual harassment. See Fla. Stat. §760.11 (1). Within 5 days of the complaint being filed, the FCHR must send a copy of the complaint to the person who allegedly committed the violation. Id. The accused person may then file an answer to the complaint within 25 days of the date the complaint was filed with the FCHR. Id.
After conducting its investigation, if the FCHR determines that there is reasonable cause to believe that discrimination exists, and issues a “Right to Sue” letter, the employee may bring a civil action for damages against the wrongdoer and/or employer within 1 year. See Fla. Stat. §760.11 (5). Much like the EEOC, the FCHR has 180 days to investigate the claim. See Fla. Stat. §760.11 (3). In lieu of a civil action, the aggrieved person may request an administrative hearing, which shall serves as an exclusive remedy. See Fla. Stat. §760.11 (4).
If the FCHR dismisses the complaint for lack of reasonable cause and proof of violation, the dismissal may be appealed by the aggrieved party within 35 days, or else the claim will be barred. See Fla. Stat. §760.11 (7).
Florida does not recognize a common law cause of action for sexual harassment. Footstar Corp. v. Doe, 932 So. 2d 1272 (Fla. 2nd DCA 2006). (Per specially concurring opinion of Casanueva, J., for a majority of the court.).
Under both Florida and Federal law, an employee who is subject to sexual harassment is entitled to recover, among other remedies, mental anguish, embarrassment, psychological and psychiatric injuries, emotional pain and suffering, as well as punitive damages and reasonable prevailing party attorneys’ fees. See 42 U.S.C. § 2000e–5; Fla. Stat. §760.11 (5).
Practice areas: Commercial Litigation (http://jimersoncobb.com/html/businesslitigation.html)