Yes, Some Small Employers In Florida Can Be Sued For Discrimination

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.

Section 11A-28(10)

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). 

Majority of States Protect Employees of Small Employers, But Not Florida

We've reached a tipping point where a majority of states now have laws that protect employees of smaller employers. Most federal discrimination laws protect employees only if their employers have 15 employees or more (20 for age discrimination, all employers for Equal Pay Act, 4 - 14 for national origin/citizenship under the The Immigration Reform and Control Act of 1986). But a majority of states have stepped in and decided to protect their working people even if they work for a smaller employer.

Not Florida, of course (except our age discriminaiton law also requires only 15 employees). Florida remains, and will continue to remain after the election, one of the most anti-employee states in the nation.

Still, it's something to give us hope when even many very red states have protected more employees. A total of 37 states, plus the District of Columbia, now protect employees of small businesses. Here's a breakdown of states and how many employees a business has to have to be covered under anti-discrimination laws:

• Alaska - all employers
• Arkansas - 9
• California - 5
• Connecticut - 3
• Delaware - 4
• D.C. - all employers
• Georgia - 10 for equal pay, all for age
• Hawaii - all employers
• Idaho - 5
• Indiana - 6, all for age
• Iowa - 4
• Kansas - 4
• Kentucky - 8
• Maine - all employers
• Massachusetts - 6
• Michigan - all employers
• Minnesota - all employers
• Mississippi - all employers
• Montana - all employers
• New Hampshire - 6
• New Jersey - all employers
• New Mexico - 4
• New York - 4
• North Dakota - all employers
• Ohio - 4
• Oklahoma - all employers
• Oregon - all employers
• Pennsylvania - 4
• Rhode Island - 4
• South Dakota - all employers
• Tennessee - 8, for gender wage discrimination all employers
• Vermont - all employers
• Virginia - all employers
• Washington - 8
• West Virginia - 12, for gender wage discrimination all employers
• Wisconsin - all employers
• Wyoming - 2

Even in anti-employee Florida, some counties and municipalities have stepped up to cover smaller employers. In Miami-Dade, Broward, Hillsborough, Orange, Lee and Pinellas Counties, employers with 5 or more employees are covered by discrimination ordinances.

If 16 states, including even ultra-red Oklahoma, can cover all employees, why won't Florida step up to help its working people? Ask your elected officials.

What Can I Do About Sexual Harassment At A Small Company?

An AOL Jobs reader asked me:

I work for a small family-owned business.
One of the married employers is having an affair with another owner. There are pictures going around of him standing in his doorway (which is directly across the hall from her office) masturbating and then going into her office, where she continued the act for him. This all took place within thirty feet of his wife's office, which could have been seen by anyone walking out of their office into the hallway.
The company was recently sued for sexual harassment by another employee for sexual acts from this same man, which was settled out of court in the ex-employee's favor.
The daily strain of coming to the office is getting hard to handle. I can't afford to quit, but health-wise I don't know if I can continue. I have had a headache for four solid months due to the strain of this situation. I am three years away from retirement, which makes it difficult to quit, and I also carry the health insurance for my husband and myself.
Do you have any advice for me?

Yikes! First and most important advice: get the heck out of there if you can. For the rest of my advice, read my column at AOL Jobs.