Florida’s Workplace Harassment Laws Explained

An Overview of Florida’s Workplace Harassment Laws

Because harassment is a manifestation of discrimination and because discrimination is protected by federal law and state law, sexual harassment in employment is governed by the same set of anti-employment discrimination laws that likewise govern other forms of employment discrimination.
Title VII does not only prohibit discrimination in the workplace; it also prohibits employers from tolerating harassment in the workplace on the basis of protected characteristics. See 42 U.S.C. § 2000e-2(a)(1) (making it an unlawful employment practice "to discriminate against any individual" in the provisions of "compensation, terms, conditions, or privileges of employment . . . because of such individual’s . . . sex").
The prohibitions against unlawful workplace harassment extend to both economic and non-economic "terms, conditions, or privileges of employment" and cover harassment that is either explicitly or implicitly linked to a condition of employment. See 42 U.S.C. § 2000e-2(a)(1) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (holding that "whether working conditions are so intolerable as to be deemed objectively offensive depends on the totality of the circumstances") . Harassment may affect the economic status of the victim, such as by causing the victim to lose time from work or miss a promotion, or it may be a non-economic form of harassment that makes the work environment hostile, threatening, or abusive.
State statutory law in Florida, in conjunction with some local ordinances, offers protections against workplace harassment that track the federal Title VII provisions. See Fla. Stat. § 760.10(1). Under Florida law, it is "an unlawful employment practice" for an employer "to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of" an individual’s race, color, religion, sex, national origin, age, handicap, or marital status. Id. To fall within the protective ambit of the Florida law, the employee must be "a citizen of the United States who lives or works in Florida." Fla. Stat. § 760.02(7). Although Florida courts will look to federal jurisprudence for guidance where the Florida law and the federal law are parallel, "Florida courts are not bound . . . by the . . . interpretation of the federal pay equity cases by federal courts." See Hargis v. Wentworth Group, LLC, No. 1:09-CV-150-MP-GRJ, 2010 WL 2671760, at *2 (N.D. Fla. June 30, 2010).

Types of Workplace Harassment Under Florida Law

The laws of Florida offer protection against four types of workplace harassment:
Sexual Harassment
Sexual harassment complaints are commonly filed in Florida. Both males and females may experience severe unwanted advances or hostile behavior towards them from other employees, employers, customers, or vendors. Harassment cases can be quite serious even when there is no physical contact. All actions, including jokes, innuendos, touching, or sexual photos may create a hostile work environment.
Abuse and Bullying
In addition to sexual harassment, an employee can also face verbal abuse or bullying from other employees, managers and owners. Spiteful and humiliating language and actions, ostracizing, spreading rumors, malicious fathering of false information, and the like illustrate this type of behavior. The abuse is often targeted against a person because of his or her age, race, religion, or country of origin.
Obstruction
A third type of workplace harassment is obstruction. This can take the form of preventing an employee from performing his or her duties, replacing someone wrongfully, terminating a valuable employee just before retirement, and manipulating new hires into ruining someone’s career. An example is when a manager or owner influences another employee into treating a target employee with disdain.
Discriminatory Practices
Lastly, discriminatory practices, which include sexual orientation discrimination, are also defined in Florida law as a form of harassment in the workplace. Discrimination is a broad term that encompasses discrimination based on race, religion, nationality, gender, marital status, pregnancy, and age. Discrimination can also include unfair treatment such as the failure to follow the business’ hiring and firing policies.
Florida State Law protects employees from the above types of workplace harassment where the actions are motivated by a protected characteristic (such as gender, age, race, ethnicity, national origin, religion, and/or disability) in order to state grounds for an unlawful employment practice claim under Florida Law.

What Protections the Law Grants Employees

Florida employees are further protected by the Florida Civil Rights Act (FCRA). The Florida law offers many of the same protections as federal laws and outlines a specific procedure an employee must follow in order to report discrimination and harassment. An employee filing a charge of discrimination with the Florida Commission on Human Relations must do so within 365 days of an alleged discriminatory act. An employee will need to submit a sworn complaint which provides a statement of the facts supporting the claim for relief. Form FCHR 800 is available online and outlines all the required details an employee filing a complaint must provide.
The FCRA prohibits a person claiming discrimination from pursuing any form of legal action until a final determination has been made by the Human Relations Commission. Most claims made under the FCRA will be investigated by the EEOC. Usually, the claims process extends far beyond the 365 days allowed to make a formal complaint.

Employer Responsibilities and Liabilities

2014 was a good year for lawyers, at least those who represent employees in Florida. In 2014, the Florida Commission on Human Relations issued an administrative decision in which it concluded that employee complaints of non-sexual harassment could be investigated and adjudicated by the FCHR.
In order for an employer to have vicarious liability for the acts of harassment, the following are the conditions which must be met: Section 760.10(7), Florida Statutes, defines discrimination as including harassment in the workplace. A hostile work environment is created when either of the following is present: It is the responsibility of each employer to train its employees on the proper procedures for reporting alleged harassment and to investigate complaints of harassment promptly and fairly. If an employee reports a complaint to their supervisor, the complaint must be recorded and investigated. The employer is not permitted to investigate complaints in accordance with a lower standard; all claims of harassment must be investigated. If there is no action taken by the employer once the employee has reported the harassment, then the employer can be found liable for the hostile work environment.
For non-negative feedback, it must be established that the employer intended to intimidate, humiliate, or dominate the female employees of the employer. The employer’s liability could be avoided but for three exceptions: For a co-worker to be found liable for sexual harassment, one of the following is necessary: A hostile work environment claim based on racial discrimination arises when race is used as the primary reason for maintaining a hostile environment in the workplace. Employees can be found to have contributed to creating a hostile work environment through the following: There are several different ways in which employers can harm their employees with verbal discrimination: To establish a claim of discriminating using intimidation, ridicule, or insult, the victim would have to show: The written policy must put at a minimum all employees on notice of: While all discrimination cases are difficult to prove, it is important for employers to review their policies and ensure they are properly trained to investigate employee complaints. Failure to follow your own policy could leave the employer exposed to liability under a hostile work environment.

What to Do If You Are Being Harassed

Florida workplace harassment law is meant to protect you, but it places the initial burden on you to stop the harassment. So if you think you are the victim of harassment in the workplace, there are some steps you can take.
Document Incidents
It is wise to keep a record of what is happening. Write down when it happened, where, who was involved, if anyone else saw it happen, and if anyone else was involved. In addition to its being helpful in case you file a complaint, it will have a power of its own: When you are on the record with yourself, you will not be so easily able to be counseled out of making a complaint.
Try to Resolve It Informally
Find out the harassment policies at your workplace, and see if you can avail yourself of some sort of mediation process. You could also consider asking the person who is harassing you to stop. Be sure, though, that you do not communicate your desire to stop in written form, as emails and text messages form a record of contact that you may find more difficult to manage later than something said face-to-face. But if there is a complaint system in place, or if that is not an option (for example, because your harasser is your supervisor), it is wise to make a complaint in writing. It is a good idea to keep your written complaint somewhere secure, like in a desk drawer.
Do Not Confront the Harasser
If Stop or I’ll Report You could work in your situation and you are comfortable with that , by all means do it. However, the process of confronting the harasser is fraught with potential for recrimination. It is better not to be alone when communicating your desire to stop. If the person is violent or unstable, you could put yourself in serious danger. Moreover, confronting the person could make it seem like you were not really being harassed. The fact that you could overlook it could be taken as evidence that you are not a victim.
Seek Legal Counsel
If things do not improve, get worse, or if the harassment continues even after you seek to resolve it informally or when you make a formal complaint, contact experienced Florida employment law counsel. Sometimes there is nothing that can be done while the harasser is still there, and it is best just to cut the cord and move on when you have enough evidence of harassment to take legal action against them through termination. The employer can put a halt to the harassment, or provide sufficient evidence to indicate they were unable to do so or that the situation has changed. If that is the case, you should consult counsel to determine whether there may be relief available to you elsewhere. Finding that relief is not as simple as filing a complaint, so although you should act quickly to get the process started, how quickly you need a resolution may vary. Consult an attorney to determine the process for that relief as well.

The Role the Florida Commission on Human Relations

The Florida Commission on Human Relations (FCHR) plays a critical role in the enforcement of workplace harassment laws in Florida. The FCHR is the state agency responsible for implementing provisions of the Florida Civil Rights Act, to ensure that many basic civil rights—including freedom from discrimination in employment—are provided and protected.
In order to facilitate this goal, the FCHR has the power to receive complaints of workplace harassment and investigate them. If an investigation reveals reasonable cause to believe that a discriminatory practice has occurred or is occurring, the FCHR must promptly issue a charge of discrimination. In some cases, a thorough investigation may require the FCHR to obtain records or take testimony under oath. In these instances, the FCHR will issue a "charge of complaint" and conduct a public hearing.
When no reasonable cause is found, the FCHR must issue a "no cause" determination based on the evidence presented. When an injured person files a charge with the FCHR, he or she is given the option to request to pursue the claim directly in court, rather than in administrative proceedings. To file a claim directly in court, the complainant must first file a complaint with the appropriate agency and receive a "right-to-sue" letter.
In addition to investigating claims and the bringing of complaints to prevent and remedy discrimination in public accommodations, employment, and housing, the FCHR also provides education and outreach services on civil rights laws, acts as a clearinghouse for human relations research and information, and works with numerous governmental and private organizations to help strengthen civil rights protections and eliminate discrimination.

Recent Cases and Legal Changes

A number of recent decisions have dealt with the topic of harassment in the workplace and the various legal standards for determining whether a claim can survive a motion for summary judgment. Particularly, some of these decisions have further clarified whether a particular statement or act meets the standard of "severe or pervasive," or whether there is an issue of fact regarding whether a plaintiff actually subjectively finds the plaintiff’s treatment to be harassment.
In one recent decision, the United States District Court for the Middle District of Florida granted summary judgment to an employer on a sexual harassment claim after concluding that the "evidence merely shows two comments made on two occasions." In this case, a female employee at a hotel in Orlando made sexual harassment claims against her supervisor including a claim that the supervisor had made comments during a meeting about whether he would work as a prostitute. However, the court granted summary judgment to the employer because the "two comments on two occasions lacks the requisite severe and pervasive element to establish a hostile work environment." In this decision, the plaintiff employee alleged harassment based on disability discrimination, sexual harassment, and age there. The court concluded, "the two instances of inappropriate comment that [the plaintiff] points to in support of her hostile work environment claims do not come close to establishing that she was subjected to a hostile work environment."
In another decision, the United States Court of Appeals for the Eleventh Circuit upheld summary judgment to a racially hostile work environment claim. The court upheld summary judgment on this claim after the lower court determined that "provocative or inappropriate racial expressions that are not directed at the plaintiff do not establish a hostile work environment under Title VII." In reaching this conclusion, the lower court stated, "we have recognized that the ‘C’ word" did not create a hostile work environment when it was not directed at the plaintiff . Moreover, the court found that the plaintiff had failed to prove that the alleged harassment was "sufficiently severe or pervasive to alter the terms and conditions of employment, so as to create an abusive working environment."
Another recent case involved summary judgment which was denied. In this case, the court found that the employee who claimed a hostile work environment based on sexual harassment had created an issue of fact as to whether the allegedly harassing statements made to her were unwelcome. The employer argued that the allegedly harassing statements ("I want to feel it") were a form of flirtation, not harassment. However, the court concluded that the employee herself effectively stated that she desired to be flirted with, because she texted to her supervisor that "just because I flirt wit u dwnt mean I want u" and "No, I lust u." The court concluded, "…although statements about feeling it were open to interpretation, the jury could find that the…sexual harassment was unwelcome.
In another case, the court concluded that the sexual harassment claim also required remand for further proceedings. In this case, the court reversed a summary judgment ruling in favor of the employer on a hostile work environment claim based on sexual harassment, and remanded the case for further proceedings. In this case, the plaintiff claimed that she was subjected to harassment in the workplace by another employee. Examples included being routinely called a derogatory name by the employee, having the employee show up uninvited to her home and staring through her windows, a threatening text message, and grabbing her wrist and nearly pulling her into a car. The court concluded that these actions were not only objected by the plaintiff and other employees in the workplace, but were severe and pervasive enough to meet the legal standard.
The above cases demonstrate that courts continue to extensively analyze the facts in the case to determine whether plaintiff has established the elements of the claim, at the summary judgment stage of litigation.