Bloodworth Law partner and employment litigation attorney J. Kemp Brinson shares his insights on a common issue faced by employers regarding harassment or discrimination claims in Florida workplaces.

Are Florida Employers Liable For Discrimination Or Harassment Claims With Less Than 15 Employees?

Are Florida employers liable for discrimination or harassment claims with less than 15 employees? The short answer is yes, but the long answer is a bit more complicated. And there are two pieces of this puzzle, said Florida attorney and partner J. Kemp Brinson.

Part One: Less Than 15 employees

“Part one is, you in fact have less than 15 employees,” Kemp said. “What does that picture look like?

Part Two: Are You Sure You Have Less Than 15?

“And the other piece of that puzzle, part two is, do you really only have 14 or 13 or 12 employees, or not? So I’ll address both of those,” Kemp said.

Less Than 15? Statutes Don’t Apply

“If truly you do not have less than 15 employees, never have, never will, it’s very clear,” Kemp said.

Title VII and the Florida Civil Rights Act

“Then the primary two statutes don’t apply to you: that would be Title VII. Title VII is a federal law. And the Florida Civil Rights Act. The Florida Civil Rights Act is a state law.

More Than 15? Statutes Apply

“Both of those statutes – Title VII and the Florida Civil Rights Act — do not come into play until you have 15 or more employees. And those are the primary statutes used to enforce gender discrimination, or any form of discrimination, most forms of discrimination, which would include sexual harassment or race discrimination or racial harassment,” Kemp said.

Laws That Apply To Less than 15 employees

“If you have less than 15 employees, however, there are some laws that might apply to you,” he said.

The Equal Pay Act

“For example, the Equal Pay Act applies to you. So, even though you can’t be held liable under Title VII if you are paying people differently based on their gender, then you could still get sued for the Equal Pay Act,” Kemp said.

Federal Statute Section 1981: Racial Discrimination

“In addition, there is a federal statute, called Section 1981, that only applies to racial discrimination. And it has a much lower threshold,” Kemp said. “It applies to an employer having any number of employees.

Section 1981: Intentional Racial Discrimination

“But under Section 1981, the discrimination must be intentional, and it only applies to race. So, harassment, hostile work environment type claims, typically are not viable if you have less than 15 employees,” he said.

Could Be Liable for Gender or Racial Discrimination

But an employer could be held liable for gender discrimination or racial discrimination if it fits into one of these much narrower categories, Kemp said.

“But certainly, it is true that if an employer has less than 15 employees, they are much, much less likely to be held liable for a discrimination or harassment complaint,” Kemp explained.

‘But there are still some theories under much narrower theories that require more egregious conduct that an employer could be held liable for, Kemp said.

Less Than 15 Employees:

• Title VII
• The Americans with Disabilities Act
• Florida Civil Rights Act

So, to summarize, if an employer has less than 15 employees, a claim cannot be made under Title VII, the ADA – The Americans with Disabilities Act — or the Florida Civil Rights Act, which are the most important types of claims that are commonly brought for discrimination cases.

Employer Might Still Be Held Liable

However, Kemp said that an employer might still be held liable if:

1. It is a race-based claim and it was intentional discrimination (such as a refusal to hire black employees) – under Section 1981
2. It is a gender-based claim and alleges unequal pay – under the Equal Pay Act
3. The company is located in a county or municipality with its own, lower thresholds for discrimination claims – under that municipality’s non-discrimination ordinance
4. The company is a state or federal contractor that is subject to EEO terms as part of a state or federal contract

**NOTE: This list is not all-inclusive!** and these are only a few examples.

Don’t Assume You’re Off the Hook

The bottom line is that you can’t assume as an employer that you have nothing to worry about if you have less than 15 employees.

Local Florida Entities Have Different Thresholds

In addition to that, there are some local Florida governments, municipalities, and counties, that have their own discrimination rules that have a much lower threshold. And some of those thresholds could be as low as one employee.

So, just because you’re under 15 employees, depending on where you’re located in Florida, you may have to be subjected to those other statutes.

Attorney J. Kemp Brinson is a 2019 to 2022 Super Lawyer for his work in Employment Law. Talk to Kemp, and to Founder and CEO attorney L. Reed Bloodworth, and the Employment Law Team about issues concerning you as a Florida employer to find out how Bloodworth Law can help you, your employees, or your business.