For the most part, discrimination cases can only be filed against employers with at least 15 employees. Federal law and Florida law both limit liability for most discrimination claims to employers with 15 or more employees. But some cities and counties in Florida allow discrimination claims to be made against employers with 5 or more employees.
Miami-Dade County has such an ordinance. A new case out of the Third District Court of Appeals has confirmed that employees who work for employers in Miami-Dade County that have at least 5 employees can sue for discrimination in court.
Is that earth-shattering news? No. That ordinance has been in place for many years. But employers have tried to resist lawsuits filed under the ordinance, saying that there is no private right of action under the ordinance. The alternative was to have an administrative hearing in front of the county equal opportunity board, which is difficult to coordinate. Now it's clear that employees can sue and have a judge and jury hear their discrimination case.
Other counties and municipalities in Florida that have ordinances allowing employees of small employers to bring discrimination claims include Broward, Cutler Bay, Miami Beach, Tampa, Orange County, Hillsborough County, Lee County, and Pinellas County. Whether employees can sue under these ordinances or must use local administrative hearings instead will depend on the language of the ordinance.
In the recent case, the Court pointed to the clear language of the ordinance and found a private right of action exists:
In 2006, the Miami-Dade County Commission amended section 11A-28 to include:
(10) Enforcement by private persons.
(a) If within one hundred eighty (180) days after a complaint is filed alleging discrimination, the Director [of the Commission on Human Rights] has been unable to obtain voluntary compliance with the provisions of this Article, the aggrieved person may demand a notice of right-to-sue from the Director, the issuance of which shall terminate the jurisdiction of the Director and the Board over such a complaint. Not later than ninety (90) days following receipt of the notice of right-to-sue, the aggrieved person may commence a civil action in a court of competent jurisdiction against the respondent named in the complaint.
(b) If, in a private enforcement proceeding under this Article, the court finds that a discriminatory practice has occurred or is about to occur it may issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including temporary or permanent injunctive and other equitable relief, temporary restraining order, actual and punitive damages, reasonable attorney's fees, interest, costs or other appropriate relief.
The result was as it should be. If a local ordinance provides for a private right of action, then employees can sue in court.
It is now clear that, at least in Miami-Dade County, if your employer has at least 5 employees, it's illegal to discriminate, and you can sue if they do (after filing a charge of discrimination with the county and giving them at least 180 days to resolve it, and after getting a right to sue letter).