ADULTS ONLY: FLORIDA'S BOTCHED CASE OF 'YOUTH' EMPLOYMENT DISCRIMINATION.

Author:Johnson, Viktoryia
 
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  1. THE PROBLEM DEFINED

    Colin Smith was seventeen years old when he applied, on April 16, 2012, for a part-time Sales Teammate position with Buckle, a teen clothing store at the Oaks Mall in Gainesville, Florida. (1) Two weeks later, Smith followed up with the store to inquire about the status of his application. (2) The store manager replied that Smith would not be hired because he was under eighteen--the qualifying age for employment with the company. (3) Refusing to accept Buckle manager's reasoning, Smith filed a charge of discrimination with the Florida Commission on Human Relations (FCHR, Commission, or Agency), claiming unlawful discrimination, in violation of the Florida Civil Rights Act of 1992 (4) (FCRA or Act). (5) Following an investigation, the Commission found that reasonable cause existed to believe unlawful discrimination had taken place. (6) Armed with the "cause" letter, Smith filed a lawsuit in Alachua County, Florida, which Buckle subsequently removed to the United States District Court for the Northern District of Florida (7) and defended, in part, by asserting Smith did not state a claim upon which relief could be granted. (8) Not long after the removal--the parties mediated their differences (9) and stipulated to dismissal. (10) Even if the case had not concluded early, it would likely have been subject to a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Smith's situation presented a case of "reverse," (11) or "youth," (12) discrimination--the cause of action Florida courts do not recognize as viable. (13)

    Florida courts interpret the FCRA to follow the Age Discrimination in Employment Act of 1967 (ADEA)--the federal law that protects individuals only of forty years old or older. (14) Although, neither the express language of the FCRA nor its legislative history support such interpretation, the state courts continue to deprive Floridians of the basic protections guaranteed by chapter 760, Florida Statutes. (15) Until Florida courts adopt the Commission's correct all-inclusive reading of the antidiscrimination law, which extends the protections to all aggrieved persons, including minors, (16) the legislative intent will not be carried out.

    This Article argues that Florida courts got it wrong. (17) Part II of this Article reviews the chronological evolution of Florida's anti-discrimination law. It then contrasts Florida courts' reading of the FCRA to extend age-related protections only to individuals over forty to the Commission's unyielding argument for the Act's age-neutral application. This Part further illustrates this interpretative incongruity by juxtaposing the Fourth District Court of Appeal's holding in City of Hollywood v. Hogan (18) to the Commission's final order in Williams v. Sailorman, Inc. (19) Part III of this Article reviews the Commission on Human Relations' role enforcing the FCRA and describes the two enforcement avenues--judicial and administrative--the Florida Legislature inscribed into the Act. This Part posits that the courts' analysis of the FCRA's age protections de facto eliminates the judicial enforcement mechanism from the Act. Part IV of this Article expands on this argument by engaging in statutory interpretation. This Part reasons that, on its face, the FCRA is unambiguous, and the statutory language must be given its plain and obvious meaning. In the alternative, it reasons, the FCRA should not be interpreted in the image of the ADEA because such interpretation is not "harmonious with the spirit of the Florida legislation." This Part explains that the "harmony" cannot be achieved for four reasons: (1) the 1977 legislative record of the FCRA (then-Human Rights Act) does not only not express the intent to set a lower age ceiling--it in fact expresses a contrary intent; (2) the Florida Legislature provided all aggrieved persons with two enforcement routes and did not intend to exclude anyone from the FCRA's all-inclusive statutory framework; (3) the courts' reading controverts the Act's "manifest purpose" to provide Floridians with the maximum protection against unlawful discrimination in employment; and finally, (4) the Florida Legislature knows how to express its intent that a state statute follow the federal law, and intentionally omitted such expression from the FCRA with respect to "age discrimination." Part V of this Article discusses two out-of-state case analogs--Michigan's Zanni v. Medaphis Physician Services Corp (20) and New Jersey's Bergen Commercial Bank v. Sisler, (21) in which state courts overturned their prior precedents, declining to follow the ADEA's lower age ceiling, and held that their states' respective anti-discrimination statutes, similar to Florida's, protected individuals of all ages. This Article concludes with Part VI, which offers final thoughts on the Florida courts' and the FCHR's interpretive "disconnect," and provides suggestions to the Florida courts, the Florida Legislature, and the Commission on how to reconcile their differences.

  2. AGE DISCRIMINATION UNDER THE FLORIDA CIVIL RIGHTS ACT OF 1992

    Florida enacted its first anti-discrimination statute--the Florida Human Relations Act--in 1969, (22) after the United States Congress passed the federal Title VII of the Civil Rights Act of 1964 (Title VII). (23) The original statute created a cause of action for employment discrimination in derogation of common law (24) and purported "to secure for all individuals within the state freedom from discrimination because of race, color, religion, or national origin." (25) Age, as a protected characteristic, was added in 1977, at the same time that the Florida Human Relations Act was renamed the Human Rights Act of 1977. (26) Although the statute was amended to add new definitions, the amendments failed to include or define the term "age." (27) During the 1992 legislative session, the Human Rights Act of 1977 was re-named the Florida Civil Rights Act of 1992; (28) like its predecessors, the FCRA left "age" undefined.

    Because the FCRA was modeled after the federal Title VII, courts interpreted the FCRA to follow federal precedent. (29) Nevertheless, there was an important difference between Title VII and the Florida antidiscrimination statute: after the 1977 legislative amendments, the Florida law included "age" as a protected category, while the federal Title VII did not. (30) Like federal courts, the Florida judiciary looked to the ADEA (31) to decide age discrimination cases. (32) The first problem with the ADEA application was that the ADEA was patterned after the Fair Labor Standards Act of 1938, which arose out of a different statutory scheme than Title VII. (33) The second problem, critical to this Article, was the fact that only individuals of forty years old or older fell within the protected category under the ADEA. (34) Because Florida courts undertook to interpret the FCRA in the image of the ADEA, they have historically held that Florida anti-discrimination law similarly protects only individuals of at least forty years of age who are disadvantaged in favor of younger individuals. (35)

    If the underlying conflict has not yet sprung out as obvious, consider this: unlike the ADEA, that expressly protects individuals of at least forty years of age, the FCRA does not contain similar limiting language. When the Florida Legislature added "age" to the FCRA, it was not preempted by the ADEA; it was free to expand its anti-age-discrimination protections beyond the federal statute, (36) and accordingly, set no age parameters on the protected class. (37) On its face, the FCRA allows an employee or applicant of any age--whether an older worker mistreated in employment in favor of a younger worker or a younger worker mistreated in employment in favor of an older worker--to bring a claim. That is the reading of the FCRA that the Florida Commission on Human Relations has adopted. The Commission has unwaveringly advocated for such interpretation (38)--alas, the Florida judiciary has never entertained the Commission's view. The following two age discrimination cases--the Commission's final order in Williams v. Sailorman, Inc. (39) and the Florida's Fourth District Court of Appeal's decision in City of Hollywood v. Hogan (40)--illustrate the internal incongruity presented by the Agency's and the courts' diverging interpretations of the Act's age-related protections.

    1. WILLIAMS V. SAILORMAN

      In Williams, the Florida Commission on Human Relations ruled that the FCRA protected all individuals--"birth to death"--from unlawful age discrimination. (41) In Williams, the petitioner, a sixteen-year-old crew member at Popeye's, a fast-food restaurant, filed a charge of discrimination against her employer, alleging an unlawful termination based on age. (42) Following a reasonable cause determination, Williams filed a petition for relief, and the matter was transferred to the Division of Administrative Hearings (DoAH) for a formal evidentiary hearing. (43) Administrative Law Judge (ALJ) T. Kent Wetherell recommended dismissal of Williams's petition, (44) and the Commission ultimately adopted his findings that no unlawful employment practice had occurred. (45)

      Even though the Commission found certain aspects of ALJ Wetherell's reasoning concerning "age" as a bona fide occupational qualification (46) "troublesome," (47) it nonetheless resoundingly reinforced his conclusion that the FCRA protects aggrieved persons of all ages. (48) In its written opinion, the Commission cited its long-standing practice of interpreting the FCRA as applicable to all chronological ages:

      Commission panels have long concluded that the Florida Civil Rights Act of 1992 and its predecessor law the Human Rights Act of 1977, as amended, prohibited age discrimination in employment on the basis of any age "birth to death." [49] A Commission panel has indicated that one of the elements in determining a prima facie case of age...

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