Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Florida Attorney General Charlie Crist says he’s preparing to put his newly strengthened civil rights enforcement powers into action. Crist told the Daily Business Review that his office has a number of open investigations that within months could lead to a lawsuit filed by the Florida attorney general under the state’s amended civil rights act. “I don’t think it will be that long,” he said last week. Neither he nor Deputy Attorney General George LeMieux would say more about the potential cases. Crist, the state’s first elected Republican attorney general, engineered a political victory during the recent special legislative session that his Democratic predecessor twice failed to achieve: He won a Republican-dominated Legislature’s approval for the Florida attorney general to be empowered to more easily file discrimination suits. Previously, because of weaknesses in the Florida Civil Rights Act, the state was hampered by a legal requirement that, to bring a discrimination case, the attorney general would have to demonstrate that threats, intimidation or coercion had taken place. “Many times discrimination is so much more insidious and subtle than that,” said Jill Schwartz, a Winter Park lawyer who represents plaintiffs and defendants in employment cases. Even in a not-so-subtle case of discrimination, the Florida attorney general could only go at the problem indirectly. When the Adam’s Mark hotel in Daytona Beach required black guests to wear neon orange wristbands during their annual Black College Reunion weekend in April 1999, the state responded by bringing charges under its Deceptive and Unfair Trade Practices Act. The hotel chain, also under fire from the federal government for allegedly charging blacks more than whites, agreed to an $8 million settlement. “Corporations were pretty much insulated from civil rights violations, at least at the state level, unless you were very aggressive and tried innovative approaches, which [former Attorney General Bob] Butterworth tried to do. It was difficult,” said Larry Spalding, staff counsel for the American Civil Liberties Union in Florida. Most civil cases alleging employment discrimination proceed without any involvement by the attorney general. They’re vetted through the federal Equal Employment Opportunity Commission or the Florida Human Relations Commission, which conduct investigations and seek to reconcile problems, before making their way to court. Now the state’s attorney general can go straight to court with discrimination charges, in the same way that federal prosecutors can. Florida joins only a handful of states that give their top attorney such power. “We had to develop a strategy to handle civil rights cases because we did not have the law we really needed,” said Allison Bethel, the Fort Lauderdale-based director of civil rights for the attorney general’s office. Bethel, who has been with the attorney general’s office since 1996, drafted two versions of the bill for Butterworth, then brought the issue to Crist’s attention during the transition period before he took office in January. The amended act allows the attorney general to sue if he or she has reasonable cause to believe that any person or group has engaged in a pattern of discrimination, or if the discrimination against any person or group “raises an issue of great public interest.” While similar to federal law, the Florida law also allows the attorney general to seek sanctions swiftly and directly at a time when federal authorities are increasingly occupied with fighting terrorism or otherwise unwilling to step in, its supporters said. The bill passed in the special legislative session this summer, 36-1 in the Senate and 113-1 in the House. Gov. Jeb Bush signed it into law June 18. It took effect immediately. CONCESSIONS TO BUSINESS The bill drew resistance from Florida business groups this year, but that resistance waned after subsequent alterations made it more palatable to them. Among the provisions that favor companies in the amended law is a right to seek a judge’s determination, within 30 days after the attorney general files a case, as to whether on its face the complaint has enough merit to proceed. Also added: a requirement that the loser pay the prevailing side’s legal fees. Some South Florida employer defense lawyers say they remain wary. In discrimination suits sparked by layoffs, for example, the EEOC forum gives employers an opportunity to explain their actions, said Lori Brown, managing partner of the Miami office of Littler Mendelson, a nationwide law firm that specializes in employment and labor law. With the attorney general now able to go straight to court, she said, the previous opportunity the employer had to be heard might be shortened, she said. “It’s of potential concern to employers.” LeMieux, seeking to allay business concerns about the office’s new powers, said the amended law is intended for use in important cases only. “We’re not going to be filing every other week,” said LeMieux, a former partner at Gunster Yoakley & Stewart who led the Broward GOP. Business groups warmed to the bill gradually. The Florida Chamber of Commerce, which originally opposed the legislation, was eventually convinced that the amended civil rights law would be good for business. Previously the attorney general’s only recourse, in the face of alleged acts of discrimination, was to take away a business license, such as an occupational license or a liquor license, said Paul A. Ledford, the chamber’s senior vice president of public policy. The amended law empowers the attorney general to take corrective action in the form of a fine or required training, for example, without having to shut a business down and lose jobs, Ledford said. Miami employment lawyer Richard Celler, senior associate at Steel Hector & Davis, said the amended law could also speed up an otherwise long and costly process. As the economy continues to lose jobs, many laid-off employees are filing suits, which are costly for employers whether the cases have merit or not, he said. With the EEOC system, even if the commission determines that a complaint lacks merit, a claimant still can sue. A complaint brought under the amended law avoids that double expense and offers the possibility that the whole matter could be dismissed within 30 days, Celler said. HOW IT HAPPENED Bethel, the attorney general’s civil rights director who drafted the first two civil rights amendments that failed, brought the issue to Crist’s attention during staff meetings held during the transition process late last year. Crist soon requested more information. Later, Bethel was asked to draft a third bill. Crist had Bush’s support and won a grudging go-ahead from the business community. When the bill failed in the regular session, lost amid wrangling over the state budget and general contentiousness between House and Senate, he got the governor’s OK to give it another shot during a special session. How active the state can become in bringing civil rights cases is another matter. The attorney general’s Office of Civil Rights has just three lawyers for the entire state, and three more positions that Bethel is trying to fill, though she said she’s free to draw from other divisions to meet legal needs. Crist calls the law “a tremendous step forward” and says he hopes it has a deterrent effect. “We just felt it was good public policy to make sure we, as Floridians, make that kind of powerful statement, that all people should be treated the same and that Florida’s attorney general should have the same ability to bring civil rights actions as the U.S. attorney general has.” Asked why he was able to get it passed when his predecessor could not, he replied, “I’m not sure what the answer is.” The consensus among political observers is that it was an uphill battle for Democrat Butterworth to seek passage of new civil rights regulation, in a conservative, Republican, anti-regulatory climate in Tallahassee. Bethel said the bill’s supporters also heard frequent criticism that a renegade attorney general could use the bill to make life hell for corporations. Veteran Tallahassee lawyer Steven J. Uhlfelder said the bill’s passage required a Republican attorney general to overcome Republican legislators’ fears. “It’s like Nixon going to China.” Butterworth, for his part, now dean of the St. Thomas School of Law, credits Crist’s prior experience in the state Senate, along with the support of the governor and many legislators from both parties for whom passage was a top priority. “It’s a very important piece of legislation and it sends a strong message that we attempted to send even without it,” Butterworth said. “If you want to discriminate, you’d better not do it in Florida.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.