Florida Workplace Harassment Laws Overview
The general principles of Florida workplace harassment laws are designed to prevent unwelcome and offensive comments or actions that create a hostile work environment or become severe enough to result in a tangible adverse action against an employee. In Florida state law, the Florida Commission on Human Relations ("FCHR") is the organization to which employees can turn when they have been subjected to harassment based on the following protected classes:
These include prohibitions against employers from discharging, refusing to hire or otherwise discriminating on the basis of the above categories. The Florida Civil Rights Act ("FCRA") has been construed to protect employees from harassing conduct arising out of their protected status. This includes protection for victims of sexual harassment , both quid pro quo and hostile work environment.
Although there is no statutory definition for a "hostile work environment" in the FCRA, the United States Supreme Court has explained that to be actionable, an employee’s actions must be sufficiently severe and pervasive to create a subjectively and objectively hostile work environment. Florida courts have also been persuaded by this definition. Courts analyze whether the conduct constitutes hostile environment on a case-by-case basis, considering all circumstances including, but not limited to, the frequency and severity of the conduct, whether it is humiliating or physically threatening, and whether it unreasonably interferes with the employee’s job performance. The employee must demonstrate that the conduct was sufficiently severe regardless of whether the employee suffered the loss of a tangible job benefit.
Types of Workplace Harassment Covered by Florida Laws
Florida workplace harassment laws prohibit four different kinds of workplace harassment:
Sexual Harassment
Racial Harassment
Age and Disability Discrimination
Gender-Based Harassment
Most commonly, sexual harassment occurs when an employee is subjected to repeated sexual advances or unwelcome sexual comments. This type of harassment also includes situations where the employee’s participation in the sexual conduct is either explicitly or implicitly tied to an employment opportunity, such as a promotion, continued employment, etc.
"Racial harassment" isn’t limited to just race-based comments. It can also include racist jokes, derogatory comments about the affected individual or those with similar racial or ethnic backgrounds. Racial harassment can occur between individuals of the same race or different races. As long as one party is being harassed based on their race, it has occurred even if the harasser is of the same race or ethnic background.
"Age harassment" doesn’t only occur when the employee is 40 or older. This type of harassment applies to employees of all ages provided that the conduct is based on the employee’s age. In most cases, the employee is being "picked on" because of their age. However, some types of physical actions based on an employee’s age can qualify as harassment under Florida law.
Gender-based harassment is also called sex discrimination and also occurs when the affected individual is harassed based on their gender or sex. Similarly to age and racial harassment, the affected individual is generally "picked on." They may be the subject of derogatory comments, joking, etc. Gender-based harassment can also include the condition of employment based on an employee’s gender.
How to Recognize Workplace Harassment
One of the biggest challenges for many employees is figuring out if they have experienced workplace harassment or simply a really bad day at work. While not an exhaustive list, we provide here some of the signs that you might be facing harassment in your workplace:
- Inappropriate comments about an employee’s appearance, including hair, weight, height, clothing and other physical features. One example would be hostile comments about the employee’s hair color.
- Any comments regarding an employee’s age are taken as offensive. For example, a barrage of communications calling an employee "old hag" or "senile old fool" would be harassment. Similarly, comments indicating that an employee is too old to conceive of new ideas are offensive and harassment.
- Comments referring to an employee’s sexual activity are considered harassment. For example, derogatory comments about the employee’s sexual orientation are a kind of sexual harassment.
- Unwanted touching or other inappropriate physical contact with an employee is prohibited harassment. A common example would be unwanted touching of intimate areas of the employee’s body.
- Highly offensive comments about an employee’s cultural or ethnic background are harassment. One example would be a series of derogatory comments about an employee’s ancestry, such as "wetback" and "Chinamen."
Harassment doesn’t have to be overtly sexual or sexist comments to be considered unlawful. A barrage of comments describing an employee’s ethnicity in a way that is derogatory is harassment. For examples, if you are an African-American or Asian employee, how would you feel to be called a "rice eater" or "watermelon thief"? Wouldn’t you want such comments to stop immediately, once you identify that they are unwelcome? One employee in California filed a lawsuit because co-workers kept saying words like "wetback" to him.
Documenting communications that are harassing is important to an employee’s ability to get a resolution, as documented evidence can be used to support I.D.E.A.S. regarding what workers should do when they have been the subject of bullying or harassment of any type. Written harassment, such as emails, texts and other electronic forms of communications are relatively easy to document. But when harassment comes in the form of verbal communications, it may be more difficult to document. If you have been the subject of harassment, it’s important that you keep a thorough and well-documented record of all communications, phone calls and other actions taken by the harassing individual(s). You should also note any witnesses to the communications. You should then report these problems to a supervisor who is likely to be able to address the offending behavior. Let this person know the troubles you are experiencing, as documented in your notes and records. If this person does not take appropriate action to address the offending behavior, you might bring the issue to a higher level of management, depending on the severity of the issue. These actions are set forth in detail in the I.D.E.A.S. method of dealing with workplace harassment.
As explained in I.D.E.A.S., the last resort for employees to deal with harassment without the help of a supervisor is to take the harassment case to a government agency or a private attorney. That is, file a complaint seeking an investigation of the harassment through a government agency. Many people are not comfortable taking legal action to end harassment and bullying, however. Nonetheless, the option exists for those who are ready to do so. These steps can be done either on an individual or on a group basis, as multiple people may have experienced the same kind of harassment.
Legal Recourse and Reporting Mechanisms
For those who have experienced, or are experiencing, workplace harassment in Florida, there are avenues by which to complain and obtain a legal remedy. The Florida Commission on Human Relations ("FCHR") is an administrative agency that investigates complaints of discrimination in the workplace based on sex, pregnancy-related conditions, gender, race, color, ethnicity, age, disability, and national origin. Employment discrimination based on sexual orientation is not yet a protected class. FCHR to a significant degree has similar responsibilities as the Equal Employment Opportunity Commission ("EEOC"). EEOC is a federal administrative agency that investigates complaints of employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. Victims of workplace harassment have 365 days from the date of the alleged discrimination to file a complaint with FCHR (300 days if complaint is also covered by federal law), and 180 days to file a complaint with EEOC (300 days for complaints also covered by state law). It is better to file with both agencies in order to allow jurisdiction and preserve all options. If a complainant does not have a right to sue letter from one agency within the prescribed time period, the complainant must still file with the other within the time period established. The remedies available through FCHR are similar to those offered through a lawsuit against the employer. A complainant may receive reinstatement, back pay, and reasonable attorney’s fees through a proceeding in FCHR. FCHR may also issue an injunction against further discrimination by the employer. In a lawsuit against the employer, however, a victim may recover emotional distress damages, punitive damages, and undergo further proceedings including warnings to an employer, a jury trial, and the right to appeal. Because of the more robust remedies that can be awarded in court, a victim may be better off filing a lawsuit directly with state or federal court rather than filing a complaint through an administrative agency. In order to file a complaint with FCHR, a victim can complete a form online or call the local Regional Office and schedule an appointment. For EEOC, a victim can contact the nearest field office or download and complete the appropriate form online. While those forms are fairly user-friendly, it is often helpful to have an attorney draft the complaint before it is submitted. While neither FCHR nor EEOC requires a formal complaint to be filed, the person bringing the complaint must submit a detailed written statement pertaining to the alleged violations. FCHR will conduct a preliminary investigation and then may recommend that either a conciliation agreement be entered into or that the matter be litigated. The investigative process can last between 180 and 420 days. If an agency does not resolve a matter after an investigation, the charging party will be able to request a right to sue letter. At that time, the charging party will be released from the jurisdiction of the agency and free to file a civil action in court. Given that a victim has up to 420 days to file an action, the statute of limitations on bringing a claim may be tolled, or extended, until that period is exhausted. Statutes of limitations vary depending on the particular right being enforced.
Employer Obligations and Prevention Measures
Section 760.10(1) of the Florida Statutes defines "discriminatory employment practice" to include: "discriminatory actions based on … sex," which apart from harassment cases must be triggered by disparate treatment. However, other sections prohibit harassment even in the absence of the traditional disparate treatment case-by-case theory of discrimination. Under Section 760.10(7): "It is unlawful employment practice . . . [f]or any person . . . to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this part." This anti-retaliation provision has been interpreted in the context of harassment cases to prohibit harassment based on an individual’s opposing unlawful discrimination or if he or she has assisted an unlawful discrimination investigation, proceeding, or hearing.
Employers can be liable for their employees’ harassment , under both their federal and state law obligations under Title VII and the Florida Civil Rights Act. Title VII authorizes an employer to avoid liability for harassment if it can show that it took "reasonable care to prevent and correct promptly any sexually harassing behavior" and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.
Under the Florida statute, to avoid liability, an employer must be able to establish as affirmative defenses that it had adopted appropriate policies to prevent, investigate, and correct sexual harassment and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer.
While many employers have adopted written anti-discrimination and anti-harassment policies, they may be contravened by employment practices that are not applied in a uniform, non-discriminatory manner.
Legislative Developments and New Laws
Recently, the Florida legislature has taken significant actions to strengthen workplace harassment laws and make it easier for victims to seek justice. For example, in 2023, they revamped their legal framework to address sexual harassment. These revisions have been complemented by amendments to federal law, notably the "Ending Forced Arbitration of Sexual Harassment Act," which prohibits mandatory arbitration clauses in employment contracts for sexual harassment claims. The Act’s provisions go far beyond the Florida state law and eliminate many opportunities for employers to reduce their liability.
After discussions and debates, the "Ending Forced Arbitration of Sexual Harassment Act" was passed into law. This historic law is tailor-made for individuals who experience harassment or retaliation in the workplace. In most cases, an employee who is sexually harassed or personally retaliated against will bring a lawsuit. However, this new law changes that bottom line.
Prior to a recent change in the law, many employers required employees to sign arbitration agreements at the time of hire. By requiring employees to sign an arbitration agreement, the employer contracts away their civil rights. This means that if an employee is the victim of sexual harassment, or is retaliated against, they are now contractually obligated to have their dispute with their employer heard by a private arbitrator. However, the new law prohibits pile on mandatory arbitration agreements in the case of individual sexual harassment or retaliation lawsuits. Now, an employee who is claiming sexual harassment or retaliation under Title VII will be able to file a case in a private courtroom.
On March 27, 2023, the Florida governor signed a bill that made amendments to the Florida Civil Rights Act of 1992, 448.07, Fla. Stat. ("FCRA"). Signed into law, the amendments expand the FCRA and promote a safer working environment for Floridians. Similar to the federal law, this new Florida law makes it so that employees cannot be forced to give up their rights to go to court. This new law prohibits an employer or business from forcing an employee as a condition of employment to execute a mandatory arbitration agreement to resolve claims of workplace harassment or retaliation. If the employee refuses to sign an arbitration agreement, the employer cannot retaliate. Any agreement between an employer and employee incorporating this provision would be voidable by the employee.
In addition, the Florida law also targets settlement agreements. Specifically, under the new law, employers can no longer include mandatory arbitration agreements or non-disclosure agreements regarding harassment allegations. Employers may still use non-disclosure agreements to protect their trade secrets; however, a few important exceptions under the new law. First, if the offense occurred after July 1, 2023, the NDA may not prevent the disclosure of the offense. Second, the NDA may not prevent the employee from cooperating with law enforcement or another government agency regarding any allegations of workplace harassment or retaliation.
Support and Resources for Victims
Mediators and therapists can help those suffering from workplace harassment. Psychotherapists can be a source of support for an employee who has been through a traumatic event or has post-traumatic stress disorder. A therapist can offer advice on coping strategies and self-care. It is always helpful to talk through feelings of frustration with friends and family, but an experienced therapist who can provide a non-biased opinion may be appreciated by a client who has suffered from harassment.
A mediator may be able to suggest an appropriate agreement to resolve a dispute. Mediation is used as an alternative to litigation or other legal action in many instances. A family member or friend who has experienced a traumatic event can sometimes provide support or even advice on how to deal with the situation if they have had prior experience. An attorney is also another resource an employee can turn to for assistance. In many cases , the social stigma or embarrassment of coming forward is alleviated with an experienced attorney who has handled similar cases. An attorney will work with an individual on a plan to make the situation better, which may not involve reporting an incident or bringing a case against an employer. Another option for support are confidential hotlines that answer questions about the matter at hand. These hotlines can assist people who have questions about their anti-discrimination rights. The Florida Bar Association publishes a Handbook for Victims of Employment Discrimination, and an employee can call and have questions answered about filing a report through the Florida Commission on Human Relations or a private lawsuit.