Senate Bill sb0580

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    Florida Senate - 2007                                   SB 580

    By Senator Bennett





    21-600-07

  1                      A bill to be entitled

  2         An act relating to the Florida Commission on

  3         Human Relations; amending s. 760.02, F.S.;

  4         defining the term "complaint" for purposes of

  5         the Civil Rights Act of 1992; amending s.

  6         760.11, F.S.; authorizing the commission to

  7         require by rule additional information be

  8         included in a complaint; providing for a

  9         conciliation agreement if unlawful

10         discriminatory practices are discovered;

11         providing a remedy in the form of a civil

12         action if the unlawful discriminatory practices

13         continue; authorizing the commission to seek

14         compensation for attorney's fees and litigation

15         costs if a civil remedy is pursued; authorizing

16         the commission to initiate a civil action in

17         the name of the state on behalf of an aggrieved

18         person; limiting the period for filing a

19         lawsuit alleging a violation of the Civil

20         Rights Act of 1992; providing an effective

21         date.

22  

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

24  

25         Section 1.  Subsection (12) is added to section 760.02,

26  Florida Statutes, to read:

27         760.02  Definitions.--For the purposes of ss.

28  760.01-760.11 and 509.092, the term:

29         (12)  "Complaint" means any written document that has

30  been signed and verified by an aggrieved party and contains a

31  clear and concise statement of the facts, including pertinent

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 1  dates, constituting the unlawful employment practice; the

 2  name, address, and telephone number of the person filing the

 3  complaint; the name, address, and telephone number of the

 4  respondent; the approximate number of the respondent's

 5  employees, if known; and if known or applicable, a statement

 6  disclosing whether proceedings involving the alleged unlawful

 7  employment practice have been commenced before a federal,

 8  state, or local agency charged with enforcing

 9  fair-employment-practice laws, the date of such commencement,

10  and the name of the agency.

11         Section 2.  Section 760.11, Florida Statutes, is

12  amended to read:

13         760.11  Administrative and civil remedies;

14  construction.--

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

16  760.01-760.10 shall may file a complaint with the commission

17  within 365 days after of the alleged violation, naming the

18  employer, employment agency, labor organization, or joint

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

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

21  violation and describing the violation.  Any person aggrieved

22  by a violation of s. 509.092 shall may file a complaint with

23  the commission within 365 days after of the alleged violation

24  naming the person responsible for the violation and describing

25  the violation.  The commission, a commissioner, or the

26  Attorney General may in like manner file such a complaint.  On

27  the same day the complaint is filed with the commission, the

28  commission shall clearly stamp on the face of the complaint

29  the date the complaint was filed with the commission. In lieu

30  of filing the complaint with the commission, a complaint under

31  this section may be filed with the federal Equal Employment

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    Florida Senate - 2007                                   SB 580
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 1  Opportunity Commission or with any unit of government of the

 2  state which is a fair-employment-practice agency under 29

 3  C.F.R. ss. 1601.70-1601.80. If the date the complaint is filed

 4  is clearly stamped on the face of the complaint, that date is

 5  the date of filing. The date the complaint is filed with the

 6  commission for purposes of this section is the earliest date

 7  of filing with the Equal Employment Opportunity Commission,

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

 9  complaint shall contain a short and plain statement of the

10  facts describing the violation and the relief sought. The

11  commission may, as authorized by rule, require that additional

12  information to be included in the complaint.  The commission,

13  within 5 days after of the complaint being filed, shall by

14  registered mail send a copy of the complaint to the person who

15  allegedly committed the violation.  The person who allegedly

16  committed the violation may file an answer to the complaint

17  within 25 days after of the date the complaint was filed with

18  the commission.  Any answer filed shall be mailed to the

19  aggrieved person by the person filing the answer.  Both the

20  complaint and the answer shall be verified.

21         (2)  If In the event that any other agency of the state

22  or of any other unit of government of the state has

23  jurisdiction of the subject matter of any complaint filed with

24  the commission and has legal authority to investigate the

25  complaint, the commission may refer such complaint to such

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

27  the commission does shall not constitute agency action within

28  the meaning of s. 120.52.  In the event of any referral under

29  this subsection, the commission shall accord substantial

30  weight to any findings and conclusions of any such agency.

31  The referral of a complaint by the commission to a local

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 1  agency does not divest the commission's jurisdiction over the

 2  complaint.

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

 4  commission shall investigate the allegations in the complaint.

 5  Within 180 days after of the filing of the complaint, the

 6  commission shall determine if there is reasonable cause to

 7  believe that discriminatory practice has occurred in violation

 8  of the Florida Civil Rights Act of 1992.  When the commission

 9  determines whether or not there is reasonable cause, the

10  commission by registered mail shall promptly notify the

11  aggrieved person and the respondent of the reasonable cause

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

13  available under this section.

14         (4)  If In the event that the commission determines

15  that there is reasonable cause to believe that a

16  discriminatory practice has occurred in violation of the

17  Florida Civil Rights Act of 1992, the commission shall

18  endeavor to eliminate the alleged unlawful practice by

19  conference, conciliation, or persuasion. The terms of a

20  conciliation agreement reached with a respondent may require

21  him or her to refrain from engaging in unlawful discriminatory

22  practices in the future and make any further provisions as may

23  be agreed upon between the commission staff and the

24  respondent.

25         (5)  If the commission is unsuccessful in eliminating

26  the alleged unlawful practice by conference, conciliation, or

27  persuasion after finding that there is reasonable cause to

28  believe that a discriminatory practice has occurred in

29  violation of the Florida Civil Rights Act of 1992, the

30  aggrieved person may either:

31  

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

 2  the complaint in any court of competent jurisdiction; or

 3         (b)  Petition the commission to initiate, at its sole

 4  discretion, a civil action against the respondent in the name

 5  of the State of Florida on behalf of the aggrieved person; or

 6         (c)(b)  Request an administrative hearing under ss.

 7  120.569 and 120.57.

 8  

 9  If the commission files a civil complaint under this section,

10  the commission may seek reimbursement of attorney's fees and

11  litigation costs through means of a conference, conciliation,

12  or persuasion. If the commission is unsuccessful in obtaining

13  such fees and costs in an amount deemed acceptable to the

14  commission, it may seek a court order awarding such attorney's

15  fees and litigation costs. Such fees and costs shall be

16  deposited in the commission's trust fund and used solely for

17  the purpose of funding litigation pursuant to this section.

18  The election by the aggrieved person of filing a civil action,

19  petitioning the commission to file a civil action, or

20  requesting an administrative hearing under this subsection

21  constitute is the exclusive procedures procedure available to

22  the aggrieved person pursuant to this act. The commission may

23  not initiate a civil complaint against the state and its

24  agencies and subdivisions under this section.

25         (6)(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

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 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 may shall not exceed $100,000.  In any

 4  action 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  initiate a civil action against the respondent in the name of

22  the State of Florida on behalf of the aggrieved person or may

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

24  Notwithstanding the above, the state and its agencies and

25  subdivisions are shall not be liable for punitive damages.

26  The total amount of recovery against the state and its

27  agencies and subdivisions may shall not exceed the limitation

28  as set forth in s. 768.28(5).

29         (7)(6)  Any administrative hearing brought pursuant to

30  paragraph (5)(c) (4)(b) shall be conducted under ss. 120.569

31  and 120.57. The commission may hear the case provided that the

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

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

 3  heard by an administrative law judge pursuant to s.

 4  120.569(2)(a).  If the commission elects to hear the case, it

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

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

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

 8  an appropriate proposed order in accordance with chapter 120

 9  prohibiting the practice and providing affirmative relief from

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

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

12  violation of the Florida Civil Rights Act of 1992 has

13  occurred, the administrative law judge shall issue an

14  appropriate recommended order in accordance with chapter 120

15  prohibiting the practice and providing affirmative relief from

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

17  days after of the date the recommended or proposed order is

18  rendered, the commission shall issue a final order by

19  adopting, rejecting, or modifying the recommended order as

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

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

22  administrative hearing pursuant to paragraph (5)(c) (4)(b)

23  must be requested no later than 35 days after the date of

24  determination of reasonable cause by the commission.  In any

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

26  its discretion, may allow the prevailing party a reasonable

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

28  Legislature that this provision for attorney's fees be

29  interpreted in a manner consistent with federal case law

30  involving a Title VII action.

31  

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 1         (8)(7)  If the commission determines that there is not

 2  reasonable cause to believe that a violation of the Florida

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

 4  dismiss the complaint.  The aggrieved person may request an

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

 6  such request must be made within 35 days after of the date of

 7  determination of reasonable cause and any such hearing shall

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

 9  commission or a commissioner.  If the aggrieved person does

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

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

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

13  occurred, he or she shall issue an appropriate recommended

14  order to the commission prohibiting the practice and

15  recommending affirmative relief from the effects of the

16  practice, including back pay.  Within 90 days after of the

17  date the recommended order is rendered, the commission shall

18  issue a final order by adopting, rejecting, or modifying the

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

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

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

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

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

24  the intent of the Legislature that this provision for

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

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

27  the final order issued by the commission determines that a

28  violation of the Florida Civil Rights Act of 1992 has

29  occurred, the aggrieved person may bring, within 1 year after

30  of the date of the final order, a civil action under

31  subsection (6) (5) as if there has been a reasonable cause

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 1  determination or accept the affirmative relief offered by the

 2  commission, but not both.

 3         (9)(8)  If In the event that the commission fails to

 4  conciliate or determine whether there is reasonable cause on

 5  any complaint under this section within 180 days after of the

 6  filing of the complaint, an aggrieved person may proceed under

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

 8  reasonable cause. However, any lawsuit filed under this

 9  subsection must be commenced no later than 4 years following

10  the date of the alleged violation giving rise to the

11  complaint.

12         (10)(9)  No liability for back pay shall accrue from a

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

14  the commission.

15         (11)(10)  A judgment for the amount of damages and

16  costs assessed pursuant to a final order by the commission may

17  be entered in any court having jurisdiction thereof and may be

18  enforced as any other judgment.

19         (12)(11)  If a complaint is within the jurisdiction of

20  the commission, the commission shall simultaneously with its

21  other statutory obligations attempt to eliminate or correct

22  the alleged discrimination by informal methods of conference,

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

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

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

26  hearing.  The commission may initiate dispute resolution

27  procedures, including voluntary arbitration, by special

28  magistrates or mediators.  The commission may adopt rules as

29  to the qualifications of persons who may serve as special

30  magistrates and mediators.

31  

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 1         (13)(12)  All complaints filed with the commission and

 2  all records and documents in the custody of the commission,

 3  which relate to and identify a particular person, including,

 4  but not limited to, a complainant, employer, employment

 5  agency, labor organization, or joint labor-management

 6  committee are shall be confidential and may shall not be

 7  disclosed by the commission, except to the parties or in the

 8  course of a hearing or proceeding under this section. The

 9  restriction of this subsection does shall not apply to any

10  record or document that which is part of the record of any

11  hearing or court proceeding.

12         (14)(13)  Final orders of the commission are subject to

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

14  determination of reasonable cause is not final agency action

15  that is subject to judicial review. Unless specifically

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

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

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

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

20  discretion, may allow the prevailing party a reasonable

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

22  Legislature that this provision for attorney's fees be

23  interpreted in a manner consistent with federal case law

24  involving a Title VII action. If In the event the order of the

25  court determines that a violation of the Florida Civil Rights

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

27  the commission for appropriate relief.  The aggrieved party

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

29  or may bring, within 1 year after of the date of the court

30  order, a civil action under subsection (6) (5) as if there has

31  been a reasonable cause determination.

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 1         (15)(14)  The commission may adopt, promulgate, amend,

 2  and rescind rules to effectuate the purposes and policies of

 3  this section and to govern the proceedings of the commission

 4  under this section.

 5         (16)(15)  In any civil action or administrative

 6  proceeding brought pursuant to this section, a finding that a

 7  person employed by the state or any governmental entity or

 8  agency has violated s. 760.10 shall as a matter of law

 9  constitute just or substantial cause for such person's

10  discharge.

11         Section 3.  This act shall take effect July 1, 2007.

12  

13            *****************************************

14                          SENATE SUMMARY

15    Authorizes the Florida Commission on Human Relations to
      require additional information in a complaint. Provides
16    for a conciliation agreement if unlawful employment
      practices or discrimination is discovered. Provides a
17    remedy in the form of civil action if the unlawful
      employment practices or discrimination continues. Allows
18    the commission to seek attorney's fees and litigation
      costs if a civil remedy is pursued. Allows the commission
19    to initiate a civil action in the name of the State of
      Florida on behalf of an aggrieved person.
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