Senate Bill sb0410c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2002                            CS for SB 410

    By the Committee on Judiciary; and Senator Wasserman Schultz





    308-2214-02

  1                      A bill to be entitled

  2         An act relating to employment practices;

  3         amending ss. 110.105, 110.233, 112.042, and

  4         760.10, F.S.; revising provisions relating to

  5         state employment policy, career service

  6         appointments, county and municipal employment,

  7         and unlawful employment practices, to provide

  8         that discrimination on the basis of sex

  9         includes discrimination on the basis of

10         pregnancy, childbirth, or related medical

11         conditions; providing a limitation with respect

12         to employer health insurance benefits;

13         reenacting ss. 104.31 and 760.11, F.S., to

14         incorporate amendments to ss. 110.233 and

15         760.10, F.S.; providing an effective date.

16

17  Be It Enacted by the Legislature of the State of Florida:

18

19         Section 1.  Subsection (2) of section 110.105, Florida

20  Statutes, is amended to read:

21         110.105  Employment policy of the state.--

22         (2)(a)  All appointments, terminations, assignments and

23  maintenance of status, compensation, privileges, and other

24  terms and conditions of employment in state government shall

25  be made without regard to age, sex, race, religion, national

26  origin, political affiliation, marital status, or handicap,

27  except when a specific sex, age, or physical requirement

28  constitutes a bona fide occupational qualification necessary

29  to proper and efficient administration.

30         (b)  For purposes of this subsection, "without regard

31  to sex" includes, but is not limited to, without regard to

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  pregnancy, childbirth, or related medical conditions. Women

  2  affected by pregnancy, childbirth, or related medical

  3  conditions shall be treated the same for all

  4  employment-related purposes, including receipt of benefits

  5  under fringe benefits programs, as other persons not so

  6  affected but similar in their ability or inability to work,

  7  and nothing in the employment policy of the state shall be

  8  interpreted to permit otherwise. This paragraph shall not

  9  require a state employer to pay for health insurance benefits

10  for abortion, except where the life of the mother would be

11  endangered if the fetus were carried to term, or except where

12  medical complications have arisen from an abortion. However,

13  nothing in this paragraph shall preclude a state employer from

14  providing abortion benefits or shall otherwise affect

15  bargaining agreements in regard to abortion.

16         Section 2.  Subsection (1) of section 110.233, Florida

17  Statutes, is amended to read:

18         110.233  Political activities and unlawful acts

19  prohibited.--

20         (1)(a)  No person shall be appointed to, demoted, or

21  dismissed from any position in the career service, or in any

22  way favored or discriminated against with respect to

23  employment in the career service, because of race, color,

24  national origin, sex, handicap, religious creed, or political

25  opinion or affiliation.

26         (b)  As used in this subsection, "because of sex"

27  includes, but is not limited to, because of pregnancy,

28  childbirth, or related medical conditions. Women affected by

29  pregnancy, childbirth, or related medical conditions shall be

30  treated the same with respect to employment in the career

31  service, including receipt of benefits under fringe benefits

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  programs, as other persons not so affected but similar in

  2  their ability or inability to work, and nothing in the career

  3  service system of the state shall be interpreted to permit

  4  otherwise.

  5         Section 3.  Subsection (1) of section 112.042, Florida

  6  Statutes, is amended to read:

  7         112.042  Discrimination in county and municipal

  8  employment; relief.--

  9         (1)(a)  It is against the public policy of this state

10  for the governing body of any county or municipal agency,

11  board, commission, department, or office, solely because of

12  the race, color, national origin, sex, handicap, or religious

13  creed of any individual, to refuse to hire or employ, to bar,

14  or to discharge from employment such individuals or to

15  otherwise discriminate against such individuals with respect

16  to compensation, hire, tenure, terms, conditions, or

17  privileges of employment, if the individual is the most

18  competent and able to perform the services required.

19         (b)  As used in this subsection, "because of sex"

20  includes, but is not limited to, because of pregnancy,

21  childbirth, or related medical conditions. Women affected by

22  pregnancy, childbirth, or related medical conditions shall be

23  treated the same for all employment-related purposes,

24  including receipt of benefits under fringe benefits programs,

25  as other persons not so affected but similar in their ability

26  or inability to work, and nothing in this subsection shall be

27  interpreted to permit otherwise. This subsection shall not

28  require an employer to pay for health insurance benefits for

29  abortion, except where the life of the mother would be

30  endangered if the fetus were carried to term, or except where

31  medical complications have arisen from an abortion. However,

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  nothing in this subsection shall preclude an employer from

  2  providing abortion benefits or shall otherwise affect

  3  bargaining agreements in regard to abortion.

  4         Section 4.  Subsection (10) of section 760.10, Florida

  5  Statutes, is renumbered as subsection (11) and a new

  6  subsection (10) is added to said section to read:

  7         760.10  Unlawful employment practices.--

  8         (10)  As used in this section, the terms "because of

  9  sex" and "on the basis of sex" include, but are not limited

10  to, because or on the basis of pregnancy, childbirth, or

11  related medical conditions. Women affected by pregnancy,

12  childbirth, or related medical conditions shall be treated the

13  same for all employment-related purposes, including receipt of

14  benefits under fringe benefits programs, as other persons not

15  so affected but similar in their ability or inability to work,

16  and nothing in this section shall be interpreted to permit

17  otherwise. This subsection shall not require an employer to

18  pay for health insurance benefits for abortion, except where

19  the life of the mother would be endangered if the fetus were

20  carried to term, or except where medical complications have

21  arisen from an abortion. However, nothing in this subsection

22  shall preclude an employer from providing abortion benefits or

23  shall otherwise affect bargaining agreements in regard to

24  abortion.

25         Section 5.  For purposes of incorporating the

26  amendments to s. 110.233, Florida Statutes, in reference

27  thereto, subsection (3) of section 104.31, Florida Statutes,

28  is reenacted to read:

29         104.31  Political activities of state, county, and

30  municipal officers and employees.--

31

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1         (3)  Nothing contained in this section or in any county

  2  or municipal charter shall be deemed to prohibit any public

  3  employee from expressing his or her opinions on any candidate

  4  or issue or from participating in any political campaign

  5  during the employee's off-duty hours, so long as such

  6  activities are not in conflict with the provisions of

  7  subsection (1) or s. 110.233.

  8         Section 6.  For purposes of incorporating the

  9  amendments to s. 760.10, Florida Statutes, section 760.11,

10  Florida Statutes, is reenacted to read:

11         760.11  Administrative and civil remedies;

12  construction.--

13         (1)  Any person aggrieved by a violation of ss.

14  760.01-760.10 may file a complaint with the commission within

15  365 days of the alleged violation, naming the employer,

16  employment agency, labor organization, or joint

17  labor-management committee, or, in the case of an alleged

18  violation of s. 760.10(5), the person responsible for the

19  violation and describing the violation.  Any person aggrieved

20  by a violation of s. 509.092 may file a complaint with the

21  commission within 365 days of the alleged violation naming the

22  person responsible for the violation and describing the

23  violation.  The commission, a commissioner, or the Attorney

24  General may in like manner file such a complaint.  On the same

25  day the complaint is filed with the commission, the commission

26  shall clearly stamp on the face of the complaint the date the

27  complaint was filed with the commission. In lieu of filing the

28  complaint with the commission, a complaint under this section

29  may be filed with the federal Equal Employment Opportunity

30  Commission or with any unit of government of the state which

31  is a fair-employment-practice agency under 29 C.F.R. ss.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  1601.70-1601.80. If the date the complaint is filed is clearly

  2  stamped on the face of the complaint, that date is the date of

  3  filing. The date the complaint is filed with the commission

  4  for purposes of this section is the earliest date of filing

  5  with the Equal Employment Opportunity Commission, the

  6  fair-employment-practice agency, or the commission. The

  7  complaint shall contain a short and plain statement of the

  8  facts describing the violation and the relief sought.  The

  9  commission may require additional information to be in the

10  complaint.  The commission, within 5 days of the complaint

11  being filed, shall by registered mail send a copy of the

12  complaint to the person who allegedly committed the violation.

13  The person who allegedly committed the violation may file an

14  answer to the complaint within 25 days of the date the

15  complaint was filed with the commission.  Any answer filed

16  shall be mailed to the aggrieved person by the person filing

17  the answer.  Both the complaint and the answer shall be

18  verified.

19         (2)  In the event that any other agency of the state or

20  of any other unit of government of the state has jurisdiction

21  of the subject matter of any complaint filed with the

22  commission and has legal authority to investigate the

23  complaint, the commission may refer such complaint to such

24  agency for an investigation. Referral of such a complaint by

25  the commission shall not constitute agency action within the

26  meaning of s. 120.52.  In the event of any referral under this

27  subsection, the commission shall accord substantial weight to

28  any findings and conclusions of any such agency.  The referral

29  of a complaint by the commission to a local agency does not

30  divest the commission's jurisdiction over the complaint.

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1         (3)  Except as provided in subsection (2), the

  2  commission shall investigate the allegations in the complaint.

  3  Within 180 days of the filing of the complaint, the commission

  4  shall determine if there is reasonable cause to believe that

  5  discriminatory practice has occurred in violation of the

  6  Florida Civil Rights Act of 1992.  When the commission

  7  determines whether or not there is reasonable cause, the

  8  commission by registered mail shall promptly notify the

  9  aggrieved person and the respondent of the reasonable cause

10  determination, the date of such determination, and the options

11  available under this section.

12         (4)  In the event that the commission determines that

13  there is reasonable cause to believe that a discriminatory

14  practice has occurred in violation of the Florida Civil Rights

15  Act of 1992, the aggrieved person may either:

16         (a)  Bring a civil action against the person named in

17  the complaint in any court of competent jurisdiction; or

18         (b)  Request an administrative hearing under ss.

19  120.569 and 120.57.

20

21  The election by the aggrieved person of filing a civil action

22  or requesting an administrative hearing under this subsection

23  is the exclusive procedure available to the aggrieved person

24  pursuant to this act.

25         (5)  In any civil action brought under this section,

26  the court may issue an order prohibiting the discriminatory

27  practice and providing affirmative relief from the effects of

28  the practice, including back pay.  The court may also award

29  compensatory damages, including, but not limited to, damages

30  for mental anguish, loss of dignity, and any other intangible

31  injuries, and punitive damages.  The provisions of ss. 768.72

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  and 768.73 do not apply to this section.  The judgment for the

  2  total amount of punitive damages awarded under this section to

  3  an aggrieved person shall not exceed $100,000.  In any action

  4  or proceeding under this subsection, the court, in its

  5  discretion, may allow the prevailing party a reasonable

  6  attorney's fee as part of the costs.  It is the intent of the

  7  Legislature that this provision for attorney's fees be

  8  interpreted in a manner consistent with federal case law

  9  involving a Title VII action. The right to trial by jury is

10  preserved in any such private right of action in which the

11  aggrieved person is seeking compensatory or punitive damages,

12  and any party may demand a trial by jury. The commission's

13  determination of reasonable cause is not admissible into

14  evidence in any civil proceeding, including any hearing or

15  trial, except to establish for the court the right to maintain

16  the private right of action. A civil action brought under this

17  section shall be commenced no later than 1 year after the date

18  of determination of reasonable cause by the commission. The

19  commencement of such action shall divest the commission of

20  jurisdiction of the complaint, except that the commission may

21  intervene in the civil action as a matter of right.

22  Notwithstanding the above, the state and its agencies and

23  subdivisions shall not be liable for punitive damages.  The

24  total amount of recovery against the state and its agencies

25  and subdivisions shall not exceed the limitation as set forth

26  in s. 768.28(5).

27         (6)  Any administrative hearing brought pursuant to

28  paragraph (4)(b) shall be conducted under ss. 120.569 and

29  120.57. The commission may hear the case provided that the

30  final order is issued by members of the commission who did not

31  conduct the hearing or the commission may request that it be

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  heard by an administrative law judge pursuant to s.

  2  120.569(2)(a).  If the commission elects to hear the case, it

  3  may be heard by a commissioner.  If the commissioner, after

  4  the hearing, finds that a violation of the Florida Civil

  5  Rights Act of 1992 has occurred, the commissioner shall issue

  6  an appropriate proposed order in accordance with chapter 120

  7  prohibiting the practice and providing affirmative relief from

  8  the effects of the practice, including back pay.  If the

  9  administrative law judge, after the hearing, finds that a

10  violation of the Florida Civil Rights Act of 1992 has

11  occurred, the administrative law judge shall issue an

12  appropriate recommended order in accordance with chapter 120

13  prohibiting the practice and providing affirmative relief from

14  the effects of the practice, including back pay.  Within 90

15  days of the date the recommended or proposed order is

16  rendered, the commission shall issue a final order by

17  adopting, rejecting, or modifying the recommended order as

18  provided under ss. 120.569 and 120.57. The 90-day period may

19  be extended with the consent of all the parties. An

20  administrative hearing pursuant to paragraph (4)(b) must be

21  requested no later than 35 days after the date of

22  determination of reasonable cause by the commission.  In any

23  action or proceeding under this subsection, the commission, in

24  its discretion, may allow the prevailing party a reasonable

25  attorney's fee as part of the costs.  It is the intent of the

26  Legislature that this provision for attorney's fees be

27  interpreted in a manner consistent with federal case law

28  involving a Title VII action.

29         (7)  If the commission determines that there is not

30  reasonable cause to believe that a violation of the Florida

31  Civil Rights Act of 1992 has occurred, the commission shall

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  dismiss the complaint.  The aggrieved person may request an

  2  administrative hearing under ss. 120.569 and 120.57, but any

  3  such request must be made within 35 days of the date of

  4  determination of reasonable cause and any such hearing shall

  5  be heard by an administrative law judge and not by the

  6  commission or a commissioner.  If the aggrieved person does

  7  not request an administrative hearing within the 35 days, the

  8  claim will be barred.  If the administrative law judge finds

  9  that a violation of the Florida Civil Rights Act of 1992 has

10  occurred, he or she shall issue an appropriate recommended

11  order to the commission prohibiting the practice and

12  recommending affirmative relief from the effects of the

13  practice, including back pay.  Within 90 days of the date the

14  recommended order is rendered, the commission shall issue a

15  final order by adopting, rejecting, or modifying the

16  recommended order as provided under ss. 120.569 and 120.57.

17  The 90-day period may be extended with the consent of all the

18  parties.  In any action or proceeding under this subsection,

19  the commission, in its discretion, may allow the prevailing

20  party a reasonable attorney's fee as part of the costs.  It is

21  the intent of the Legislature that this provision for

22  attorney's fees be interpreted in a manner consistent with

23  federal case law involving a Title VII action.  In the event

24  the final order issued by the commission determines that a

25  violation of the Florida Civil Rights Act of 1992 has

26  occurred, the aggrieved person may bring, within 1 year of the

27  date of the final order, a civil action under subsection (5)

28  as if there has been a reasonable cause determination or

29  accept the affirmative relief offered by the commission, but

30  not both.

31

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1         (8)  In the event that the commission fails to

  2  conciliate or determine whether there is reasonable cause on

  3  any complaint under this section within 180 days of the filing

  4  of the complaint, an aggrieved person may proceed under

  5  subsection (4), as if the commission determined that there was

  6  reasonable cause.

  7         (9)  No liability for back pay shall accrue from a date

  8  more than 2 years prior to the filing of a complaint with the

  9  commission.

10         (10)  A judgment for the amount of damages and costs

11  assessed pursuant to a final order by the commission may be

12  entered in any court having jurisdiction thereof and may be

13  enforced as any other judgment.

14         (11)  If a complaint is within the jurisdiction of the

15  commission, the commission shall simultaneously with its other

16  statutory obligations attempt to eliminate or correct the

17  alleged discrimination by informal methods of conference,

18  conciliation, and persuasion.  Nothing said or done in the

19  course of such informal endeavors may be made public or used

20  as evidence in a subsequent civil proceeding, trial, or

21  hearing.  The commission may initiate dispute resolution

22  procedures, including voluntary arbitration, by special

23  masters or mediators.  The commission may adopt rules as to

24  the qualifications of persons who may serve as special masters

25  and mediators.

26         (12)  All complaints filed with the commission and all

27  records and documents in the custody of the commission, which

28  relate to and identify a particular person, including, but not

29  limited to, a complainant, employer, employment agency, labor

30  organization, or joint labor-management committee shall be

31  confidential and shall not be disclosed by the commission,

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  except to the parties or in the course of a hearing or

  2  proceeding under this section. The restriction of this

  3  subsection shall not apply to any record or document which is

  4  part of the record of any hearing or court proceeding.

  5         (13)  Final orders of the commission are subject to

  6  judicial review pursuant to s. 120.68.  The commission's

  7  determination of reasonable cause is not final agency action

  8  that is subject to judicial review. Unless specifically

  9  ordered by the court, the commencement of an appeal does not

10  suspend or stay the order of the commission, except as

11  provided in the Rules of Appellate Procedure.  In any action

12  or proceeding under this subsection, the court, in its

13  discretion, may allow the prevailing party a reasonable

14  attorney's fee as part of the cost.  It is the intent of the

15  Legislature that this provision for attorney's fees be

16  interpreted in a manner consistent with federal case law

17  involving a Title VII action.  In the event the order of the

18  court determines that a violation of the Florida Civil Rights

19  Act of 1992 has occurred, the court shall remand the matter to

20  the commission for appropriate relief.  The aggrieved party

21  has the option to accept the relief offered by the commission

22  or may bring, within 1 year of the date of the court order, a

23  civil action under subsection (5) as if there has been a

24  reasonable cause determination.

25         (14)  The commission may adopt, promulgate, amend, and

26  rescind rules to effectuate the purposes and policies of this

27  section and to govern the proceedings of the commission under

28  this section.

29         (15)  In any civil action or administrative proceeding

30  brought pursuant to this section, a finding that a person

31  employed by the state or any governmental entity or agency has

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2002                            CS for SB 410
    308-2214-02




  1  violated s. 760.10 shall as a matter of law constitute just or

  2  substantial cause for such person's discharge.

  3         Section 7.  This act shall take effect July 1, 2002.

  4

  5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  6                         Senate Bill 410

  7

  8  Reenacts ss. 104.31, and 760.10, F.S., which cross-reference
    ss. 11.233 and 760.11, F.S., respectively, to incorporate the
  9  amendments made to these sections in this bill.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  13

CODING: Words stricken are deletions; words underlined are additions.