Can Florida's Commission on Human Relations dismiss a discrimination complaint when the employer has fewer than 15 employees?

Plain-English summary

The Florida Commission on Human Relations enforces the Florida Civil Rights Act, which applies only to an "employer," defined as a person with 15 or more employees. The commission asked the Attorney General's office whether it could dismiss a discrimination complaint when it was undisputed that the business named in the complaint had fewer than 15 employees, in light of a U.S. Supreme Court case (Arbaugh v. Y&H Corp.) that treated the 15-employee threshold as part of the claim rather than as a question of court jurisdiction.

Assistant Attorney General Lagran Saunders advised that the commission could dismiss in that situation. As an agency created by statute, the commission has only the powers the Legislature gives it, and its own rule requires dismissal when there is no jurisdiction over the respondent or subject matter. Arbaugh held that the employee-count requirement is an element the complainant must prove, not a jurisdictional gate for federal courts. The opinion noted that distinction (Arbaugh was about a federal court's power, not an agency's) but pointed out that even under Arbaugh's framing, when it is undisputed the respondent has fewer than 15 employees, the complainant cannot prove that element, so dismissing the complaint would not be inconsistent with Arbaugh.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who counts as an "employer" under the Florida Civil Rights Act?
A: Under section 760.02(7), a person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, plus any agent of such a person.

Q: What did the Arbaugh decision actually hold?
A: In Arbaugh v. Y&H Corp., the U.S. Supreme Court held that the 15-employee requirement under Title VII is an element of the plaintiff's claim for relief, not a jurisdictional requirement that can be raised at any point, including after trial.

Q: Why could the commission still dismiss despite Arbaugh?
A: The opinion reasoned that Arbaugh dealt with a federal court's subject-matter jurisdiction, not an administrative agency's statutory powers. And because the employee count is an element the complainant must prove, when it is undisputed that the respondent has fewer than 15 employees, dismissal is consistent with Arbaugh, not against it.

Q: Does Florida follow federal civil rights case law?
A: Often, yes. The opinion noted that because the Florida Civil Rights Act is patterned after Title VII, Florida courts may look to federal Title VII case law in deciding state civil rights questions.

Background and statutory framework

Part I, Chapter 760, Florida Statutes, the Florida Civil Rights Act, creates the Commission on Human Relations and empowers it to receive, investigate, and act on complaints of discriminatory practices (section 760.06(5)) and to adopt rules (the commission's Rule 60Y-5.006(10) directs dismissal when there is no jurisdiction over the respondent or subject matter). As a creature of statute, the commission has only the authority the Legislature grants it (State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So. 2d 787 (Fla. 1st DCA 1982)).

The wrinkle was Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), where the U.S. Supreme Court reclassified the 15-employee threshold under Title VII as a merits element rather than a jurisdictional requirement. Because the Florida act tracks Title VII, federal courts have applied Arbaugh to the Florida 15-employee requirement. The opinion distinguished a court's jurisdiction from an agency's statutory authority and emphasized that, with the employee count undisputedly below 15, the complainant cannot establish a required element, so the commission may dismiss.

Citations and references

Statutes:

• § 760.02, Fla. Stat. (Definitions)
• § 760.10, Fla. Stat. (Unlawful employment practices)
• § 760.11, Fla. Stat. (Administrative and civil remedies)

Cases:

• Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the 15-employee threshold is a merits element, not a jurisdictional requirement
• Maldonado v. Publix Supermarkets, 939 So. 2d 290 (Fla. 4th DCA 2006), Title VII case law may apply to Florida civil rights claims

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/commission-on-human-relation-less-than-15-employees
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8123

Original opinion text

Mr. Gilbert M. Singer, Chair
Florida Commission on Human Relations
2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301-4857

Dear Chair Singer:

You have asked this office for assistance in determining whether the Florida Commission on Human Relations (commission) may issue a "no cause determination" in cases where it is undisputed that the employer has less than 15 employees.

Rule 60Y-5.006(10), Florida Administrative Code, promulgated by the commission to carry out its statutorily prescribed duties provides:

"The Executive Director, on behalf of the Commission, shall dismiss a complaint upon one or more of the following grounds:

(10) There is no jurisdiction over the respondent or subject matter of the complaint."

By its rule, the commission appears to recognize a distinction between its jurisdiction over a person who is the subject of a complaint and its subject matter jurisdiction, but states that the absence of jurisdiction over either mandates dismissal of a complaint. In an instance such as you have posed where it is uncontested that a person who is the subject of a discrimination complaint does not have 15 or more employees and, therefore, does not fall within the statutorily defined "employer" for purposes of the act, the commission by its rule must dismiss the complaint. As a statutorily created administrative entity, the commission has no inherent power and may exercise only such authority as is expressly or by necessary implication conferred by law.[1]

In light of the decision in Arbaugh v. Y&H Corp., d/b/a The Moonlight Café,[2] however, you also question whether the definition of "employer" in section 760.02(7), Florida Statutes, is determinative of the commission's jurisdiction over a person alleged to have violated Florida's Civil Rights Act. In Arbaugh, the United States Supreme Court found that the employee-numerosity requirement for establishing a business's "employer" status under the Federal Civil Rights Act[3] was an element of the employee's claim for relief and not a jurisdictional requirement that could be questioned at any stage of the litigation. In Arbaugh, the respondent's status as an "employer" was found to have been conceded due to the fact that it was not challenged prior to or during the trial on the merits.[4] The Court found that the employee-numerosity requirement in the federal act did not operate to bar or confer subject matter jurisdiction of federal courts over civil rights claims, but rather was an element of proof in the claimant's case.

It has been recognized that since the Florida Civil Rights Act is patterned after Title VII of the Federal Civil Rights Act, federal case law regarding Title VII may be applied in state civil rights cases.[5] The Arbaugh case has been cited in a Florida federal court proceeding for the proposition that the fifteen-employee numerosity requirement is an element of a petitioner's claim for relief and not a jurisdictional issue.[6] There would appear to be a distinction, however, between the situation in Arbaugh wherein the question centered on the jurisdiction of a federal court to hear a civil rights case and the present one questioning the commission's exercise of its statutorily prescribed powers and duties. Moreover, unlike the situation in Arbaugh, you indicate by your question that it is undisputed that the person who is the subject of the complaint has fewer than 15 employees.

You have provided information about a case currently pending before the commission in which the claimant, in his claim of discrimination under state law, asserted that the employer had 15 employees.[7] Upon this complaint, the commission found cause to proceed and referred the matter to the Division of Administrative Hearings for further action. The business which was the subject of the complaint filed a motion to dismiss, stating that it did not fall within the statutory definition of an "employer," since it had less than 15 employees. The motion was denied, since the petitioner had not at that time had an opportunity to present evidence to prove that the respondent was an "employer" subject to the act.[8] After a final hearing, at which the petitioner had the opportunity to establish the number of employees, but failed to do so, the hearing officer determined that the employer did not have 15 employees and recommended that the action be dismissed.[9] The commission questions whether it may accept the recommended order in light of the Arbaugh decision and dismiss the action.

Part I, Chapter 760, Florida Statutes, the Florida Civil Rights Act (act),[10] creates the Florida Commission on Human Relations. The commission is authorized "[t]o receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by the Florida Civil Rights Act of 1992."[11] It also has the authority to adopt rules to carry out the purposes of the act.[12]

The act sets forth those activities which are unlawful employment practices by an "employer."[13] For purpose of the act, "[e]mployer" is defined as "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person."[14] Any person aggrieved by a violation of the act may file a complaint with the commission within 365 days of the violation.[15] A complaint must contain "a short and plain statement of the facts describing the violation and the relief sought." The commission, "within 5 days of the complaint being filed, shall by registered mail send a copy of the complaint to the person who allegedly committed the violation."[16] (e.s.)

It would appear, therefore, that at the time the complaint is filed, there is no presumption that the "person" against whom the complaint has been filed is an "employer" for purposes of the act and the complainant has the burden of proving that the person named in the complaint is an "employer" responsible for the alleged discrimination.[17] The Arbaugh court recognized that the numerosity of employees is an element of the case which must be proven by the petitioner and it would not be inconsistent for the commission to dismiss a complaint when it is determined that a person who is the subject of a civil rights complaint has fewer than 15 employees.

I trust that these informal comments will be helpful to you in resolving the questions you have raised.

Sincerely,

Lagran Saunders
Assistant Attorney General

ALS/tsrh

[1] See State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So. 2d 787, 793 (Fla. 1st DCA 1982), petition for review denied, 436 So. 2d 98 (Fla. 1983), stating:

"An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction."

[2] 546 U.S. 500 (2006).

[3] Title VII of the Federal Civil Rights Act, 42 U.S.C. s. 2000e, et. seq.

[4] Only after a jury trial resulting in a verdict for the complainant did the "employer" move to dismiss the entire action for lack of federal subject-matter jurisdiction, asserting for the first time that it had fewer than 15 employees. The previously rendered judgment was vacated and the federal complaint was dismissed with prejudice as to the federal claim (although the complainant's state claims were dismissed without prejudice). Supra n.2 at 500-501.

[5] See Maldonado v. Publix Supermarkets, 939 So. 2d 290, 293 (Fla. 4th DCA 2006).

[6] In re Elisabeth A. Fierro, 2007 WL 1113257 (M.D. Fla. 2007), not reported in F.Supp.2d.

[7] The employee also filed a complaint with the United States Equal Employment Opportunity Commission, stating that the employer had under 15 employees. See Charge of Discrimination by Malvin Prince, 4/1/2012, No. 511-2012-01256.

[8] Order Denying Respondents' Motion to Dismiss, September 24, 2012, Case No. 12-2815, State of Fla. Div. of Administrative Hearings.

[9] Recommended Order, November 28, 2012, Case No. 12-2815, State of Fla. Div. of Administrative Hearings.

[10] Section 760.01, Fla. Stat.

[11] Section 760.06(5), Fla. Stat. See also subsection (6), authorizing the commission to issue subpoenas, administer oaths or affirmations, and compel attendance and testimony of witnesses pursuant to any investigation or hearing.

[12] Section 760.06(12), Fla. Stat.

[13] Section 760.10, Fla. Stat.

[14] Section 760.02(7), Fla. Stat.

[15] Section 760.11(1), Fla. Stat.

[16] Id.

[17] See, e.g., Enzor v. Tallahassee Contractors, LLC, Case No. 08-1227 (Fla. DOAH May 20, 2008; FCHR Order No. 08-045, July 8, 2008); Lyes v. City of Riviera Beach, 166 F.3d 1332, 1340-1341 (11th Cir. 1999).