For most discrimination cases, before you can file a lawsuit, you must first file a charge of discrimination. In Florida, you have the option of filing your charge of discrimination with either the EEOC (the federal agency) or the Florida Commission on Human Relations (FCHR) (the state agency). Here is a valuable piece of advice: Always file your charge with the EEOC. Never file your charge with the FCHR. I will explain why.
If you file your charge with the EEOC, you will eventually receive a notice giving you the right to sue (typically called a Right to Sue). That’s that. There are no shenanigans. But if you file with the FCHR? You are basically risking everything.
Why You Should Never File with the FCHR
First, the under Florida law, the FCHR can outright decide that you have no reasonable cause to allege discrimination. If the FCHR makes a no reasonable cause determination, then you cannot pursue your Florida state law claims (under the Florida Civil Rights Act) in court. Let me elaborate on this: In certain ways, an FCRA claim is much stronger than a Title VII claim. Specifically, the FCRA allows for unlimited compensatory damages and $100,000 in punitive damages. Title VII has damage caps ($300,000 max for the largest employers). In a very strong or egregious case of discrimination, the FCRA claim is way more valuable. But if the FCHR decides you don’t have a real case, then your FCRA claim is gone.
Second, even when the FCHR issues you its version of the Right to Sue, that comes with built in traps for people who do not proceed with caution. On the FCHR’s version of the Right to Sue, it explains that you can either file a case in court, or, you can file a petition with the FCHR and resolve your matter through them (basically an administrative process rather than a court process). The FCHR’s Right to Sue even gives you a blank petition form, basically encouraging you to proceed via the FCHR administrative process. Never elect the FCHR administrative process. Alway go to court. If you find yourself in this situation, and you made the mistake of going through the FCHR in the first place, you can stop the damage right here by getting out of the FCHR and going to court. If you elect to proceed via the FCHR, say goodbye to any significant damages.
The FCHR Process is Designed to Limit Your Rights
Let me explain why things work this way. Florida is the old South. Florida is part of the Confederacy. Florida is a slave state. People might say: JP, that was in the past. As if the past has no bearing on the present. Clearly, it does. About 12 years ago, I was at a hearing in Florida state court. We went off the record. And a sitting, state court judge referred to the local federal courts as “Yankee courts.” As in: Long live the Confederacy. As in: He made no secret of his disdain for the Yankees and the Union. That’s real. And that sort of cultural ideology is alive and well in Florida. Even when it’s not a sitting judge telling two black lawyers to their face that he doesn’t like Yankee courts — that attitude is still there. The cultural foundation of slavery, racism, the Confederacy, antagonism to federal law — that’s all working in the background. Don’t pretend like that doesn’t impact the legal system in Florida. It does. Florida’s legal system has a distinct culture. And that – what I just described – is part of that culture.
Beyond this, Florida is anti-labor. Florida is anti-worker. You put all of this together. I naturally flows that the entire FCHR system and process would be designed to benefit corporations and insurance companies and to disadvantage working people and those complaining of discrimination. Various frameworks in society are either right stripping, rights neutral, or rights maximizing.
Here, I’ll blow your mind: The entire administrative / charge process (i.e. requiring people to file a charge of discrimination and get the right to sue before filing a lawsuit in court) is designed to prevent people from going to court and vindicating their rights. That is by design. When your political overlords finally agreed to pass civil rights legislation, they had to make a compromise. They created these new rights and gave people a private right of action (the right to file a lawsuit in court), but they had to limit that by creating the administrative process (an obstacle to filing suit). That was the compromise. New rights, but with an obstacle. So this whole pre-suit discrimination charge process is, by design, rights stripping. Because if you don’t go through the process, you lose your rights (to file a lawsuit).
So, at a meta level, we are already operating within a rights stripping framework. But within that framework (the administrative process), the EEOC is rights neutral (by design) whereas the FCHR is rights stripping (by design). The upshot: Stay out of the FCHR. If you’re already there, don’t file a petition and go through the administrative process. Go to court.
Florida Has a Critical Shortage of Civil Rights Lawyers (by Design)
I know: That’s easier said than done. In Florida (as in many other southern states), people struggle to find a lawyer in discrimination cases. Again, that is all by design. Many federal courts throughout the south (especially in Florida) have spent the past 20 or 30 years misapplying federal law and making discrimination cases very difficult to pursue. This all comes down to what is called summary judgment. Under Federal Rule 56, courts are not allowed to grant summary judgment (i.e. dispose of the case entirely) unless there are no important facts in dispute. In other words, if a jury could reasonably conclude that discrimination took place, then the case is supposed to go to trial. But many federal courts have not applied Rule 56 correctly, Instead, they have just granted summary judgment and said things like: They don’t believe the plaintiff. They believe the defendant’s version of events. Or the plaintiff didn’t prove their case (but nobody needs to prove anything at the summary judgement stage; proving is for trial). All of this is completely improper. But it usually goes uncorrected because the plaintiffs in these cases are mostly poor people, they can’t afford an appellate lawyer, and the few lawyers who take these cases aren’t willing to invest the time and money in pursuing appeals.
And, again, that makes sense: Because not only do courts improperly grant summary judgment, these same courts aggressively police the fees that plaintiff-side employment lawyers recover when they succeed. What capable lawyer would ever spend their time doing this sort of work when they could do other, far more lucrative work? The irony is that defendants and those aligned with the power structure say: That’s not true! Because JP, you yourself are pursuing these cases. So there must be an economic incentive there.
Uh, no. I’m doing this on principle. Because the emperor has no clothes. The entire system is a scam against poor and working people. And few people have the resources, the brains, or the guts to go out and attack this problem. Show me somebody else doing what I’m doing in Florida or in the south. I’ll be waiting.
Jonathan Pollard is a lawyer and writer. He is the founder of Pollard PLLC, a law firm that represents employees, executives, and entrepreneurs in high stakes litigation. Pollard and his colleagues have been repeatedly honored by Super Lawyers and are ranked in Chambers & Partners. The Firm has offices in Fort Lauderdale, Miami, and St. Louis and can be reached at 954-332-2380.
