Discrimination And Other Claims

Employment Discrimination

Mr. Padilla represents employees and employers in employment discrimination disputes and other employment issues. With decades of experience practicing in Miami and south Florida, Mr. Padilla provides legal counseling and litigation in a wide range of matters.

What is employment discrimination?

Employment discrimination is illegal if it is based on an illegal factor. Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate because of sex, pregnancy, national origin, race or religion. Employers with 15 or more employees must comply with Title VII, including employment agencies, labor unions, and state and local governments. Title VII applies to hiring, termination, promotion, compensation, training and any other decisions of employment.

Gender discrimination

Title VII protects individuals against discrimination by employers on the basis of gender. It is illegal for employers to discriminate against employees or applicants based on gender, stereotypes, or assumptions about job performance or abilities because of gender.

Pregnancy discrimination

The Pregnancy Discrimination Act amendment to Title VII states that employment decisions based on pregnancy constitute unlawful sex discrimination. It is also illegal to discriminate based on a pregnancy-related medical condition. Pregnant women and those with pregnancy-related conditions must be treated the same as other employees or applicants.

National origin/nationality discrimination

Employees or applicants are entitled to the same opportunities as anyone else, regardless of ancestry. It is illegal to discriminate because of nationality, ancestry, ethnicity or accent. In addition, an employee married to or associated with someone of a particular nationality is also protected.

Race/color discrimination

Title VII protects workers against discrimination because of race and/or color. A person cannot be treated differently and opportunities cannot be denied because of an actual or perceived racial group. Persons who are married to or associated with someone of a particular race also cannot be treated differently, and employment decisions cannot be based on stereotypes and assumptions about abilities of a racial or ethnic group.

Religious discrimination

It is illegal to hire, fire and/or discriminate against a person because of religion. A person cannot be treated differently and employment opportunities cannot be denied because of religious beliefs, traditions, holidays or practices.

Age discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discriminate against any employee or applicant because the person is over age 40. All aspects of the employment relationship are implicated, including hiring, firing, promoting, layoffs, benefits, job assignments, compensation and training. The ADEA applies to all employers with at least 20 employees, including government agencies, employment agencies and labor unions. It is also illegal to retaliate against an employee for complaining about age discrimination.

Disability discrimination

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against workers with disabilities. Title I of the ADA states that it is illegal to treat a person with a disability differently with respect to hiring, firing, advancement, compensation, job training, and other terms and conditions of employment. This applies to all employers with 15 or more employees.

An employer must make a "reasonable accommodation" to the known disability of an employee as long as it will not create an undue hardship on the business. An employer is not required to lower quality or production standards or to provide glasses, hearing aids or other personal-use items.

Sexual harassment

Sexual harassment is a type of discrimination based on sex. Title VII of the Civil Rights Act of 1964 (Title VII) makes sexual harassment illegal. All employers with 15 or more employees must comply with Title VII. This includes employment agencies, labor unions, and state and local governments. Sexual harassment includes requests for sexual favors, unwelcome sexual advances, and other verbal comments or physical conduct of a sexual nature. However, to be actionable under Title VII, the harassment must be unwelcome and must unreasonably interfere with a person's work performance.

The victim of sexual harassment may be a man or a woman, and the victim does not need to be the opposite sex of the harasser. A victim can be any person affected by the offensive conduct, even someone who overhears it. The harassment does not have to be directed at a person to be actionable. There need not be economic injury (for example, monetary loss) to the person harassed. Sexual harassment is actionable under the law even if the person harassed does not suffer any adverse employment action, such as getting fired or demoted.

The law also provides protection from a sexually hostile work environment. This is not limited to an office environment, but can also be a factory floor, construction site, retail store or other business location. When one or more employees makes a sexual remark or performs an action that makes others uncomfortable, the workplace may be considered sexually hostile. Examples of remarks and actions are:

  • Sexually suggestive remarks about an employee's appearance or dress
  • Unwanted or inappropriate touching
  • Spreading rumors about an employee's personal life, sexual activities or sexuality
  • Openly displaying pornographic photos
  • Requesting sexual favors, either explicitly or by implication, in exchange for a raise, promotion or other business or career benefit is also a form of sexual harassment called quid pro quo sexual harassment. The request need not be made by a manager to be considered harassment. Such requests made by a co-worker or other employee fall into the same category. It creates a hostile workplace for the subject and can be cause for a legal action.

Sexual harassment can be subtle, and not all perceived harassment may meet the legal standards for an action. An employer may be held liable for conduct of a supervisor, co-worker or even a nonemployee if the employer knows of the offensive conduct and fails to take remedial action. However, the employee affected by sexual harassment must affirmatively take advantage of the Equal Employment Opportunity procedures, if any, made available to the employee by the company. Otherwise, employers may defend themselves by claiming that they attempted to curb harassment through the implementation of appropriate procedures, but the employee failed to take advantage of those procedures.

Hostile work environment

Hostile work environment refers to harassment that becomes so severe and pervasive that it creates an environment in the workplace that is intimidating, hostile or abusive. A claim of a hostile work environment is a type of discrimination that is illegal under Title VII of the Civil Rights Act of 1964. All employers with 15 or more employees must comply with Title VII. This includes employment agencies, labor unions, and state and local governments.

A hostile work environment is illegal only if the conduct is unwelcome and based on race, color, sex, religion, national origin, disability or age. Also, if enduring the offensive conduct is a condition of continued employment, then it is illegal. In addition, conduct is also actionable if the conduct is so severe or pervasive that the work environment becomes intimidating, hostile or abusive to a reasonable person.

Conduct that may constitute harassment and create a hostile work environment includes offensive jokes, insults, slurs, epithets, name-calling, physical assaults or threats. However, minor annoyances and petty slights do not constitute illegal harassment unless they become frequent. Conduct and statements that are sexual in nature are considered sexual harassment.

It is illegal for an employer to retaliate against an employee for complaining about a hostile work environment or filing a hostile workplace charge. Employees who give testimony are also protected. Retaliation means that an employer cannot fire, demote, harass or treat adversely any employee because of a complaint or charge.

An employer may be held liable for conduct of a supervisor, co-worker or even a nonemployee if the employer knows of the offensive conduct and fails to take remedial action. However, the employee affected by sexual harassment must affirmatively take advantage of the Equal Employment Opportunity procedures, if any, made available to the employee by the company.

Otherwise, employers may defend themselves by claiming that they attempted to curb harassment through the implementation of appropriate procedures, but the employee failed to take advantage of those procedures.

Retaliation in the workplace

It is illegal to retaliate against an employee for filing a discrimination or opposing discrimination charge. Employees who give testimony in an employment-discrimination proceeding are also protected. An employer cannot fire, demote, harass or treat adversely any employee engaged in this protected activity. An example is if an employee complains about a hostile work environment and gets fired as a result.

To have a claim for retaliation, an employee must have been the subject of adverse employment action because of engagement in protected activity, such as filing a claim of discrimination, opposing illegal discrimination or testifying in an employment-discrimination proceeding.

Whistleblower claims

Florida's Whistleblower Act makes it illegal for an employer to fire, demote, harass or otherwise retaliate against an employee for objecting to or refusing to participate in any activity, policy or practice of the employer that is in violation of a law, rule or regulation.

The Florida Private Sector Whistleblower Act, Fla. Stat. §448.102 et seq. (FWA) provides protection to employees who have complained about an employer's illegal or wrongful conduct. However, it is not sufficient under the FWA for an employee to merely state that the employer is doing something illegal.

There are several strict requirements that employees must prove under the FWA. Specifically, an employee must not only complain about illegal conduct, he or she must also prove the following. First, the employee must prove that he or she disclosed or threatened to disclose to a governmental agency, in writing and under oath, an activity, policy or practice of the employer that was in violation of a law, rule or regulation. This requires the employee to not only make or threaten to make a report in writing and under oath, but also requires the employee to prove that the activity, policy or practice is, in fact, illegal under federal or local law. A mere belief that conduct is illegal is not sufficient. In addition, the disclosure must be to a governmental agency and must be in writing and under oath. Thus, a letter to a state health department may not be sufficient if it is not made under oath.

Second, the employee must provide that the employer retaliated against the employee because of the protected activity, e.g., the disclosure. This means that the employer must have known or been informed of the disclosure. This requirement in itself will mean that only extremely recalcitrant employers will become subject to an FWA claim.

Third, the employee must prove that the employer not only knew of the disclosure, but that the employer was given written notice of the activity, policy or practice that was illegal, thereby giving the employer a reasonable opportunity to correct the activity, policy or practice. Such written notice must be specific and not just simply "rantings" about the circumstances at work. This is to prevent mere employment disputes from reaching the level of an FWA claim.

Family and medical leave

The Family and Medical Leave Act of 1993 provides that qualified employees may take up to 12 weeks of unpaid, job-protected leave during any 12-month period for a serious health issue or for the birth and care of a newborn child or immediate family member with a serious medical condition.

Unemployment Compensation

Mr. Padilla provides representation for employees and employers in unemployment compensation cases. Unemployment payments are meant to help someone who has lost a job other than through misconduct to cover expenses while seeking a new job.

Eligibility for unemployment compensation

Any person who is unemployed or partially unemployed and was employed by an employer in Florida for the last 18 months prior to losing a job can file a claim for unemployment compensation. Generally, under Florida employment law all employees are entitled to unemployment compensation except if the individual voluntarily left without good cause or was discharged for misconduct connected with the work.

The law defines the type of misconduct that would disqualify an employee in these terms:

  • "Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his or her employer."
  • Poor judgment is not enough to constitute misconduct connected with the work.

Someone who is denied unemployment compensation but feels entitled to it can appeal the denial to the state unemployment commission. If the appeal is denied, the person can hire a lawyer to represent the claim in court.

The definition of "misconduct" under Florida law

In July 2011, the Florida legislature amended the unemployment law to provide a new definition of what constitutes "misconduct":

  • Conduct demonstrating conscious disregard of an employer's interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of an employee
  • Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to an employer
  • Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence
  • A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state
  • A violation of an employer's rule, unless the claimant can demonstrate that:
  • The employer did not know, and could not reasonably know, of the rule's requirements
  • The rule is not lawful or not reasonably related to the job environment and performance
  • The rule is not fairly or consistently enforced

Under the new definition, the standard for qualifying for unemployment compensation appears to be stricter, and both employees and employer are well-advised to carefully consider their actions and when and how to defend and/or apply for unemployment compensation benefits.

Unemployment law cases successfully litigated by Mr. Padilla

Below are some of the unemployment cases that Mr. Padilla has litigated and won over the last several years:

  • Hernandez v. American General Finance, 39 So.3d 476 (3rd DCA, Fla. App., 2010) -- The issue before the Court was whether a single incident of wrongdoing by the claimant, which led the employer to terminate her job of 14 years, rises to the level of misconduct under the statute. The Court held that it was an isolated incident and a result of poor judgment and reversed the Unemployment Commission's decision to deny unemployment benefits.
  • Flint v. Carnival Cruise Lines, Inc., 79 So.3d 115 (3rd DCA, Fla. App., 2012) -- The Court held that although the claimant's action was in violation of a stated company policy and may have justified her discharge from employment, "such conduct does not necessarily preclude entitlement to unemployment benefits."
  • 940 Lincoln Rd. Enterprises v. Hernandez, 67 So.3d 1192 (3rd DCA, Fla. App., 2011) --The claimant quit her job because she was sexually harassed by employer's owner. She repeatedly asked the owner to stop this conduct, and complained to her immediate supervisor, all to no avail. The claimant remained on the job because she had a small child and needed the income. However, when the situation got worse, she could no longer tolerate the owner's conduct and she finally quit. On these facts, the Appeals Referee denied unemployment benefits stating that it was not reasonable for the claimant to have stayed on the job and not have called the police, but on appeal, the Florida Unemployment Commission and the District Court of Appeals both held that "[t]here is no evidence to support the referee's conclusion that victims of sexual harassment frequently go to the police to complain about a hostile work environment or seek psychological or medical treatment. Additionally, sexual harassment can continue for several years before the victim makes public her complaint.... Considering a job is usually a person's economic lifeline, the claimant's failure to contact outside authorities regarding her complaint cannot be called unreasonable or inherently improbable."

If you have an employment law issue, contact Santiago J. Padilla and his team of legal professionals by calling 800-483-7197 to schedule a consultation. You may also begin the process by completing and submitting the firm's online contact form.