Is Your Boss Breaking the Law? How to Fight Back Against Illegal Discrimination or Retaliation

Unfortunately, unlawful discrimination and retaliation happens in the workplace all too frequently. There are, however, a number of federal, state, and local laws that probit workplace discrimination and retaliation and provide protections and remedies for employees who have been unlawfully discriminated or retaliated against by an employer.

Before an employee may file a lawsuit for workplace discrimination or retaliation, the employee must first generally follow the applicable administrative process—also known as “exhausting” administrative remedies. Failing to exhaust administrative remedies before filing a lawsuit may result in dismissal of claims, even if the claims have merit.

In this blog post, we will discuss how Florida employees may file workplace discrimination and retaliation claims under federal and state laws.

How to File Discrimination or Retaliation Claims under Federal Law

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the federal administrative agency charged with enforcing federal laws prohibiting employment discrimination and retaliation. Specifically, the EEOC enforces federal laws prohibiting employment discrimination (including harassment) based on:

• Race, color, national origin, sex, and religion (Title VII of the Civil Rights Act of 1964 (“Title VII”))
• Age over 40 (Age Discrimination in Employment Act (“ADEA”))
• Disability (Americans with Disabilities Act (“ADA”))
• Genetic trait or information (Genetic Information Nondiscrimination Act (“GINA”))
• Retaliation because the employee engaged in protected activity under these laws by complaining about workplace discrimination or participating in a job discrimination investigation or lawsuit

Under these federal laws, an employee must file a charge of discrimination with the EEOC before filing any lawsuit in court. The employee’s representative (such as an attorney) may file a charge of discrimination on behalf of the aggrieved employee. The charge of discrimination should be filed directly with the EEOC.

A Florida employee must file any charge of discrimination with the EEOC within 300 days of the alleged discrimination and/or retaliation. If more than one discriminatory and/or retaliatory event took place, the deadline to file usually applies to each event. For allegations of ongoing harassment, the deadline to file a charge of discrimination is 300 days from the last incident of harassment.

Of note, not all Florida employers are covered by federal laws under the EEOC’s enforcement authority. Florida employers with fewer than 15 employees (or fewer than 20 employees for age discrimination) do not fall under the EEOC’s jurisdiction. In these cases, the employee may be able to file a complaint with a state or local agency, discussed below.

Once the employee files the charge of discrimination, the EEOC will generally send the employer a notice of the charge and provide an opportunity to respond to the allegations in the charge. If an employee files a charge under Title VII or the ADA, the employee must receive a Notice of Right to Sue from the EEOC before filing any lawsuit in federal court. Once the EEOC issues the Notice of Right to Sue, an employee must file a lawsuit under federal laws within 90 days of receipt of the Notice.

How to File Discrimination or Retaliation Claims Under State Law

Similar to the EEOC, the Florida Commission on Human Relations (“FCHR”) is the state administrative agency charged with enforcing the Florida Civil Rights Act (“FCRA”). Under the FCRA, employers with 15 or more employees are prohibited from discriminating against employees and job applicants on the basis of the individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Under the FCRA, covered employers are also prohibited from retaliating against employees for opposing or complaining about their employer’s unlawful discrimination under the Act or because the employee filed a complaint or participated in any investigation or proceeding under the Act.

Before filing a lawsuit, a Florida employee must first file a complaint with the FCHR within 365 days of the alleged violation under the FCRA. The employee may also choose to dual-file the complaint with the EEOC. However, if the employee is also asserting claims under federal law, the employee must file with the EEOC or FCHR within 300 days of the alleged violation. Pursuant to a work-sharing agreement between the EEOC and FCHR which is currently in effect, the EEOC and FCHR are authorized to accept a charge of discrimination on behalf of the other.

Under Florida law, within 180 days of the filing of the charge of discrimination, the FCHR is required to determine whether or not there is “reasonable cause” to believe a violation of the FCRA has occurred. If the FCRH determines there is reasonable cause, the employee may (1) file a lawsuit in state court, or (2) request an administrative hearing. If the FCHR determines there is no reasonable cause to believe a violation of the FCRA occurred, the FCHR will dismiss the complaint. If the complaint is dismissed, the employee may appeal the decision through the administrative process, but may not immediately file a lawsuit. If an employee’s complaint remains pending after 180 days, the employee may file a lawsuit so long as the FCHR has not already issued a “no reasonable cause” finding.

For employers that are not covered by the FCRA or federal law, there may be local anti-discrimination and anti-retaliation laws that apply. For example, the Miami-Dade County Ordinance applies to employers with 5 or more employees in the County. Although the administrative process is similar to the process under the FCRA, there are some differences. Therefore, employees interested in pursuing employment-related claims under local law should consult with attorneys at BT Law Group.

Final Thoughts

Whether or not employee complaints of discrimination are resolved by the EEOC, FCHR, and/or a local agency, the administrative process can be confusing and time consuming. And employees must act within strict deadlines, or else risk forfeiting their claims.

BT Law Group has extensive experience advising clients about discrimination and retaliation claims, and can help Florida clients through the administrative process. If you believe you have been unlawfully discriminated or retaliation against in violation of federal, Florida or local law, contact BT Law Group for a consultation.