1. Avoiding Civil Rights and Employment Practices Claims Division of Risk Management Department of Insurance

2. Total Paid and Projected Costs Linear Analysis Projected in Red

3. Loss Experience of the State Regarding Civil Rights and Employment Claims The frequency of employment claims and the amount paid (severity) on both types of claims have increased dramatically The frequency of employment claims and the amount paid (severity) on both types of claims have increased dramatically Courts have expanded the scope of what can be claimed as violation of rights and relief available Courts have expanded the scope of what can be claimed as violation of rights and relief available Attorneys have recognized that broader recovery is available under federal law (no caps, can obtain attorney’s fees awards) than if only a negligence claim is pursued

4. Section 1983 Imposes Liability On: Persons (individual state employees), who, acting under color or authority of state law, deprives a citizen of any rights, privileges or immunities secured by the Constitution and laws Civil Rights Claims 42 U.S.C. 1983 Claims

5. Constitutional Amendments 1 st : right of freedom of speech, press, religion and assembly 1 st : right of freedom of speech, press, religion and assembly 4 th : security from unreasonable searches and seizures; no warrants issued without probable cause 4 th : security from unreasonable searches and seizures; no warrants issued without probable cause 8 th : no cruel or unusual punishments inflicted 8 th : no cruel or unusual punishments inflicted 11 th : states may not be sued in Federal or State court by a citizen unless the state has consented to the suit (does not confer rights – used by states to dismiss suits) 11 th : states may not be sued in Federal or State court by a citizen unless the state has consented to the suit (does not confer rights – used by states to dismiss suits)

6. 14 th Amendment – Due Process Procedural Due Process: State will not deprive a person of life, liberty, or property unless fair procedures are used in making the decision Procedural Due Process: State will not deprive a person of life, liberty, or property unless fair procedures are used in making the decision Substantive Due Process: State will not deprive a person of rights for an arbitrary reason regardless of how fair the procedures used to make the decision Substantive Due Process: State will not deprive a person of rights for an arbitrary reason regardless of how fair the procedures used to make the decision Will not deny equal protection of the laws Will not deny equal protection of the laws

7. Importance of s.1983 law to state officials: Claims for monetary damages are against the state official as a “person” in their individual capacity, not against the state agency; assets of the state official can be taken to satisfy a judgment if insurance program is not available Claims for monetary damages are against the state official as a “person” in their individual capacity, not against the state agency; assets of the state official can be taken to satisfy a judgment if insurance program is not available If employee clearly “intended to cause the harm,” Risk Management cannot provide a defense or pay judgment If employee clearly “intended to cause the harm,” Risk Management cannot provide a defense or pay judgment Risk Management cannot pay punitive damages Risk Management cannot pay punitive damages There are no monetary caps on damage awards There are no monetary caps on damage awards Attorney fees and costs can be awarded to prevailing claimants Attorney fees and costs can be awarded to prevailing claimants Civil Rights Claims

8. Importance of s.1983 law to state agencies Claims for declaratory or injunctive relief may be brought against agencies Claims for declaratory or injunctive relief may be brought against agencies Injunctive relief could cost agency millions and disrupt programs Injunctive relief could cost agency millions and disrupt programs Attorney fees and costs can be awarded to prevailing claimants Attorney fees and costs can be awarded to prevailing claimants Agency must pay to defend D&I suits Agency must pay to defend D&I suits Civil Rights Claims

9. Defenses to FCR Claims Employee did not commit the act Employee did not commit the act Employee did not act under color or authority of state law Employee did not act under color or authority of state law Employee actions did not deprive claimant of a constitutional right or privilege Employee actions did not deprive claimant of a constitutional right or privilege Absolute immunity (Judges, Prosecutors, Legislators) Absolute immunity (Judges, Prosecutors, Legislators) Qualified or “good faith” immunity Qualified or “good faith” immunity

10. Qualified Immunity Claimant must show employee violated clearly established statutory or constitutional rights of which a reasonable person would have known Claimant must show employee violated clearly established statutory or constitutional rights of which a reasonable person would have known Would a reasonable employee have thought their actions were lawful in light of clearly established law and the information they possessed at the time the conduct occurred? Would a reasonable employee have thought their actions were lawful in light of clearly established law and the information they possessed at the time the conduct occurred? Court ruling – “Should protect all but plainly competent or those who knowingly violate the law”

11. Tips on Preventing FCR Claims Examine FCR claims. Determine problem. Take corrective action (training, education, discipline, procedure change, etc.) Examine FCR claims. Determine problem. Take corrective action (training, education, discipline, procedure change, etc.) Educate employees about their rights and the rights of citizens they deal with. Supervise. Discipline. Educate employees about their rights and the rights of citizens they deal with. Supervise. Discipline. Examine agency statutes, rules, policies, procedures, and programs. Make sure they are constitutionally sound and in compliance with state and federal rules Examine agency statutes, rules, policies, procedures, and programs. Make sure they are constitutionally sound and in compliance with state and federal rules Use monitoring systems or have at least 2 staff members present in “FCR” situations Use monitoring systems or have at least 2 staff members present in “FCR” situations

12. Employment Discrimination Claims Employment Discrimination: Treating a person differently with respect to terms, conditions, and privileges of employment due to _________(an unlawful reason). Employment Discrimination: Treating a person differently with respect to terms, conditions, and privileges of employment due to _________(an unlawful reason). Disparate Treatment (individuals) Disparate Treatment (individuals) Disparate impact (usually groups) Disparate impact (usually groups) Neutral policy or practice that has a discriminatory impact Neutral policy or practice that has a discriminatory impact

13. Both state and federal laws exist that allow claims by state employees against state agencies. Examples are: Both state and federal laws exist that allow claims by state employees against state agencies. Examples are: Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 Enacted to eradicate employment on the basis of race, color, religion, national origin and/or sex. Every aspect on the employment process is covered, including recruitment, hiring, job classifications, transfer, promotion, compensation and termination Enacted to eradicate employment on the basis of race, color, religion, national origin and/or sex. Every aspect on the employment process is covered, including recruitment, hiring, job classifications, transfer, promotion, compensation and termination Employment Discrimination Claims

14. The Florida Civil Rights Act of 1992 (Chp. 760, F.S.) The Florida Civil Rights Act of 1992 (Chp. 760, F.S.) This act protects employees from discrimination based on race, color, religion, sex, national origin, age, handicap or marital status This act protects employees from discrimination based on race, color, religion, sex, national origin, age, handicap or marital status This act is broader than Title VII and is the only avenue to bring an action for age, handicap or marital status against the state because recent US Supreme Court decisions have held that the Americans with Disabilities Act and the Age Discrimination in Employment Act of 1967 are not applicable to the state (for monetary damages) due to 11 th Amendment immunity This act is broader than Title VII and is the only avenue to bring an action for age, handicap or marital status against the state because recent US Supreme Court decisions have held that the Americans with Disabilities Act and the Age Discrimination in Employment Act of 1967 are not applicable to the state (for monetary damages) due to 11 th Amendment immunity Employment Discrimination Claims

15. Sexual Harassment (A Form of Sex Discrimination) Quid pro quo (this for that): Employee benefits are conditioned on sexual favors (usually supervisor/subordinate) Quid pro quo (this for that): Employee benefits are conditioned on sexual favors (usually supervisor/subordinate) Hostile work environment: Unwelcomed conduct pervasive and severe

16. Cost of Employment Discrimination Claims Statewide 1996-2000 Race Sexual Harassment Disability Other Sex National Origin Age Equal Pay Fair Labor Standards

17. Defending Disparate Treatment Cases Claimant presents direct and circumstantial evidence to establish their case Claimant presents direct and circumstantial evidence to establish their case Employer presents evidence that the employment action was based on legitimate, non-discriminatory reasons Employer presents evidence that the employment action was based on legitimate, non-discriminatory reasons Claimant attempts to show employers’ stated reasons are merely a pretext for discrimination Claimant attempts to show employers’ stated reasons are merely a pretext for discrimination Judge or jury renders a verdict Judge or jury renders a verdict

18. Damages Available in Employment Claims Back pay, front pay, reinstatement Back pay, front pay, reinstatement Compensatory damages (pain and suffering, mental anguish, loss of dignity, etc.) Compensatory damages (pain and suffering, mental anguish, loss of dignity, etc.) Attorney fees to prevailing claimants Attorney fees to prevailing claimants Claims are often “personal” in nature and litigation is antagonistic and costly Claims are often “personal” in nature and litigation is antagonistic and costly

19. Tips for Preventing Employment Claims Examine your claims. Identify problem practices, employees, work units, etc. Correct the problem Examine your claims. Identify problem practices, employees, work units, etc. Correct the problem Have independent, knowledgeable, party review all employment decisions Have independent, knowledgeable, party review all employment decisions Make sure employment decisions can be justified with legitimate, objective, non-discriminatory reasons Make sure employment decisions can be justified with legitimate, objective, non-discriminatory reasons Document, Document, Document! – Decision - maker is often not available Document, Document, Document! – Decision - maker is often not available Educate and train employees about discrimination and proper employment practices Educate and train employees about discrimination and proper employment practices

20. Service First Service First legislation Service First legislation Allows state managers flexibility in hiring by requiring only documentation that selected candidate meets minimum qualifications and has KSA’s to perform job Allows state managers flexibility in hiring by requiring only documentation that selected candidate meets minimum qualifications and has KSA’s to perform job Does not by itself protect agencies from discrimination claims Does not by itself protect agencies from discrimination claims Does not prohibit documentation adequate to protect an agency from claims Does not prohibit documentation adequate to protect an agency from claims

21. Agencies retain oversight for: Agencies retain oversight for: Selection Selection Discipline Discipline Discrimination Discrimination Outsourced functions: Attendance and leave Attendance and leave Performance appraisals Performance appraisals Classification and pay Classification and pay Benefits Benefits Service First

22. Final Word Best avoidance technique is to seek advice and independent review if any doubt exists about the possibility of violating the public’s or a state employee’s rights Best avoidance technique is to seek advice and independent review if any doubt exists about the possibility of violating the public’s or a state employee’s rights If state agencies do not take proactive measures to reduce the number of claims, more and more state funding will be directed to payment of these claims, redirecting funding available for state programs If state agencies do not take proactive measures to reduce the number of claims, more and more state funding will be directed to payment of these claims, redirecting funding available for state programs