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New Florida Civil Rights Bill Grants State Attorney General Power to Sue Employers for Discrimination

By Donald C. Works III
  • January 10, 2004

In June 2003, Governor Jeb Bush enacted the Dr. Marvin Davies Florida Civil Rights Act, Florida's newest legislative plan to eliminate discrimination. The Act amends the Florida Civil Rights Act of 1992 and other existing laws by (1) defining and prohibiting unlawful discrimination or segregation in places of "public accommodation" and, (2) empowering the State Attorney General with the authority to conduct investigations, initiate enforcement actions, and seek penalties against persons or groups (including businesses) for engaging in a pattern or practice of discrimination, or for discriminating against persons or groups when "issue(s) of great public interest" are concerned.

These new enforcement powers are certain to have an impact on employers conducting business in Florida, however, as with any new legislation, the extent of that impact is uncertain. In the meantime, it is instructive for employers to know the differences between the prior Civil Rights Act and the new amendments and powers now held by the Attorney General, and to formulate a compliance strategy that includes review and, where necessary, modification of their existing human resources policies and practices.

Public Accommodations under the Florida Civil Rights Act of 1992

Although the Act of 1992 has always provided that "[a]ny violation of any Florida statute making unlawful discrimination because of race, color, religion, gender, national origin, age, handicap, or marital status in the areas of education, employment, housing, or public accommodations gives rise to a cause of action," it did not specifically prohibit discrimination in public accommodations. Moreover, the word "public accommodations" was used in the Act of 1992 but was never expressly defined.

Public Accommodations under the Dr. Marvin Davies Act

The Act defines "reasonable accommodations" to include "places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments." Specifically, inns, hotels, motels, restaurants, cafeterias, lunchrooms, theaters, movie theaters, concerts halls, sports arenas, and stadiums are among the places where the Act expressly prohibits discrimination "on the ground of race, color, national origin, sex, handicap, familial status, or religion." Covered employers are now subject to lawsuits not only by employees but by patrons of their establishments included within the definition of public accommodations.

Enhanced Powers of the State Attorney General

Under the prior statutory scheme, the role of the Florida Attorney General in filing claims and enforcing violations of anti-discrimination law was limited to cases involving "threat, intimidation, or coercion, with someone's exercise or enjoyment of rights secured by the State Constitution or state laws." Moreover, the Attorney General lacked the authority independently to investigate claims of employment discrimination.

In contrast, the Dr. Marvin Davies Act authorizes the Attorney General to file lawsuits for damages, injunctive relief, civil penalties not to exceed $10,000 per violation, and such other relief that may be appropriate under the laws. Initiating such actions is limited to situations where the Attorney General has "reasonable cause to believe that any person or group: (a) has engaged in a pattern or practice of discrimination as defined by the laws of this state; or (b) has been discriminated against as defined by the laws of this state and such discrimination raises an issue of great public interest."

Another significant change is that the Attorney General may file a civil action either "in the circuit court of the county where the cause of action arises" or "in the circuit court of the Second Judicial Circuit, in and for Leon County." Once an action has been filed under the Act, the respondent may request a hearing to determine whether the complaint on its face makes a showing that a pattern or practice of discrimination exists or that, as a result of discrimination, an issue of great public interest exists. The Attorney General also has the power to investigate and initiate actions authorized by the Florida Civil Rights Act, even if a person or group has not filed a complaint with the Florida Commission on Human Relations or the Equal Employment Opportunity Commission.

Effect of the New Act on Employers

Because the Dr. Marvin Davies Act apparently extends the powers of the Attorney General to fighting discrimination in the workplace, employers will likely face new burdens and new lawsuits in the years to come. It is unclear whether, and to what extent, the Attorney General's actions may affect a plaintiff's right to maintain his or her own separate claim for discrimination. Thus, the Attorney General and the aggrieved person may be able to pursue separate actions arising out of the same alleged acts of discrimination at the same time and in different locales in which the results may be inconsistent or may involve overlapping remedies.

©2004 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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