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Friday, December 7, 2012

Is The Florida Commission On Human Relations A Malignant Force Against Employees?

The Florida Commission on Human Relations is the state equivalent of EEOC. In order to sue under the Florida Civil Rights Act, you must first file a Charge of Discrimination with them and let them investigate. They have a deal with EEOC that, if you file in Florida with EEOC you're automatically filed with them, and vice versa. Truthfully, I rarely deal with FCHR, because I usually file with EEOC.

The Florida chapter of the National Employment Lawyers Association, of which I am a proud member, just issued a scathing report about FCHR. The report refers to the human rights commission as a highly politicized “rogue agency.” NELA calls FCHR a “destructive and malignant force” that they say has trampled on the legal rights of employees for years. They say FCHR staff and leaders have acted illegally or ineptly.

How did a state agency that is supposed to protect employee rights go so wrong?

The trouble, NELA says, begins with a clause in the Florida Civil Rights Act, a "unique feature under which FCHR could prevent a case under FCRA from going to court by making a 'no-cause' finding within 180 days of intake." EEOC does not make a "no cause" finding (I take some credit for this, because they used to, but that's another story). EEOC's finding says, basically, that they are unable to determine whether or not cause exists, and that the employee has the right to sue. FCHR, however, finds "no cause." If they do so within 180 days of filing (and they seem to rush to do this), then the employee loses the right to sue and their sole remedy is with FCHR.

Another problem with the agency is that they have taken a decidedly anti-employee bent. The agency has worked to curtail employee rights under the FCRA. Instead of promoting workplace equality, the agency apparently sees its mission as one to combat frivolous suits. NELA says this: "Top staff of FCHR began describing the effort to combat frivolous discrimination suits as “equally important” as establishing equal opportunity. On its web page, the agency began touting its ability to settle cases for a fraction of their value."

Another issue NELA raises is FCHR's repeated denial that they have jurisdiction over cases:

The agency routinely dismisses cases that fall squarely within the FCRA or the Florida Public Whistleblower Act by falsely claiming to lack “jurisdiction” over them. FCHR thus clears its docket of intakes without even having to give the case a serious reading, let alone having to investigate it or make a determination. This has cleared FCHR’s backlog, but in doing so, it has vandalized the rights of thousands of Floridians and emboldened employers with discriminatory employment practices.

NELA offers these possible solutions:

• Abolish the agency;
• Repeal the statutory provision allowing a “no-cause” finding to impair
access to courts;
• Adopt a range of self-help solutions that can be undertaken by
individuals, as well as efforts to involve the federal government, grand
juries, and the courts as well as the executive and legislative branches.

Of these solutions, I like the option of changing the "no cause" finding to something similar to what EEOC issues the best. FCHR shouldn't be able to deny employees the right to sue. I support EEOC and FCHR if they function as intended: to investigate discrimination (and whistleblower in the case of FCHR) claims, to try to remedy issues before they get to court, and to try to reduce or eliminate illegal employment practices.

By turning the agency on its head, making it an anti-employee and pro-discrimination agency, the State of Florida is doing the opposite of what the legislature intended. I would urge Florida legislators to take a close look at this agency and fix it. For an employee rights organization like NELA to take on a human rights agency, the abuses had to be extensive. The decision to do the report was not made lightly.

Government should protect its citizens, not trample their rights. It's that simple.

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