Interpreting the Florida Civil Rights Act of 1992.

• Author: Presswood, Kendra D.

The Florida Civil Rights Act of 1992 (FCRA) is our state law prohibiting discrimination in employment. (1) The first version of the FCRA was enacted after Congress passed Title VII of the Civil Rights Act of 1964 (Title VII). (2) Unfortunately, the case law under the FCRA has become increasingly confusing and contradictory over the years. With the impending debate on whether or how to apply the U.S. Supreme Court decisions in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and University of Texas Southwestern Med. Ctr. v. Nassar,__U.S.__, 133 S. Ct. 2517 (2013), Florida's law is likely to become more confusing. This article discusses how the Florida law has been interpreted inconsistently in the past and suggests a way the courts can interpret FCRA consistently in light of the new Supreme Court precedent. The suggested approach would harmonize the law, bringing much needed predictability for employers and employees, and would better effectuate the FCRA's purpose.

For the most part, courts interpreting the FCRA have followed federal precedent because the FCRA was largely modeled after Title VII. (3) Nonetheless, there are differences between the state and federal statutes and that creates some confusion in following federal laws. For example, the FCRA includes age, handicap, and marital status as protected categories; Title VII does not. Other federal laws cover age (4) and disability (5) discrimination, but those federal statutory schemes are considerably different from the FCRA and Title VII. The FCRA also includes, for example, different caps for compensatory and punitive damages, and a different administrative scheme to be followed before filing suit.

The confusion is evident in the case law addressing whether pregnancy discrimination is prohibited by the FCRA. Like Title VII, the FCRA prohibits sex discrimination. However, Congress amended Title VII to explicitly include pregnancy in the definition of "sex" in 1978. (6) The Florida Legislature did not follow suit. Thus, whether pregnancy discrimination is prohibited by the FCRA is still being debated in cases today, 35 years after pregnancy was added to Title VII. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991), was the first case to address the issue and concluded that Title VII preempted the FCRA "to the extent that Florida's law offers less protection to its citizens than does the corresponding federal law." Thus, Pinchback affirmed the employee's award for pregnancy discrimination brought solely under the FCRA. (7) To this day, courts are split on what Pinchback meant and whether it was correct. (8) The Fourth District held that the FCRA covers pregnancy because Congress merely amended Title VII to include pregnancy as Congress had intended in the first place; thus, the FCRA should be interpreted as though it was intended to cover pregnancy as well. (9) However, the Third District reached the opposite result in Delva v. Cont'l Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012), rev. granted, 2013 Fla. Lexis 1251 (Fla. May 2, 2013). (10) Adding to the potential confusion, the Delva court asserted that it agreed with Pinchback, which affirmed a pregnancy discrimination award under the FCRA, yet Delva held that pregnancy discrimination is not covered under the FCRA.

Courts have also interpreted the FCRA in accordance with federal disability discrimination statutes. For example, cases apply the same definitions of "disability" from federal laws and require that employers provide reasonable accommodations for disabilities under the FCRA even though the FCRA does not contain the same definitions or say anything about reasonable accommodations. (11)

The cases interpreting the FCRA to cover pregnancy and disability claims, even when the FCRA's text does not include them, interpret the FCRA liberally to provide at least as much protection under the state law as the federal laws provide. However, some cases interpret the FCRA to provide less protection. For example, Gallagher v. Manatee County, 927 So. 2d 914, 919 (Fla. 2d DCA 2006), rev. denied, 937 So. 2d 665 (Fla. 2006), held that all equitable relief, such as back pay and front pay, prevailing party attorneys' fees and costs, as well as all damages are capped at a combined total of $100,000 for government employers. Previously, equitable remedies had never been capped under either Title VII or the FCRA, nor had the amount of fees and costs ever been capped under either law. Neither Title VII nor the FCRA contained any caps until they were amended to make compensatory and punitive damages available. In 1991, Congress amended Title VII to make the additional remedies of compensatory and punitive damages available and placed a combined cap of up to $300,000 on their recovery. In 1992, the Florida Legislature followed suit, but used a different method of capping the damages. Florida made punitive damages available against private defendants but capped such awards at $100,000. Florida made compensatory damages available against all defendants but placed a cap on compensatory damages awarded against government defendants by referencing the sovereign immunity statute. (12)

Before Gallagher, courts understood that the "total amount of recovery" language in the FCRA was intended to apply only to compensatory damages. (13) Gallagher, however, decided that the FCRA's 1992 amendments made less remedies available; thus, the FCRA provides less relief than Title VII for government employees.

Similarly, state court cases have imposed judicially created caps on compensatory damage awards against private employers even though the Florida Legislature chose not to cap those awards. (14) This goes against longstanding federal precedent. (15) For example, 42 U.S.C. [section]1981, which prohibits race discrimination and retaliation, does not contain a cap on compensatory damages and, thus, federal courts have not reduced considerable compensatory damages awards under the statute. (16) In fact, federal courts have expressly rejected the approach adopted by cases like City of Hollywood v. Hogan, 986 So. 2d 634 (Fla. 4th DCA 2008). (17)

The new issue Florida courts will confront soon is what causation standard will apply to the FCRA in light of the Supreme Court's decisions in Gross and Nassar. Both decisions address causation standards under federal discrimination laws, but to understand them and decide whether to apply them to the FCRA, one must understand the history. In Price Water house v. Hopkins, 490 U.S. 228 (1989), a splintered U.S. Supreme Court agreed on one principle: Title VII is violated...