Labor & Employment Law Daily Florida Senate pushes back against EEOC’s prosecution of sexual harassment allegations
Monday, October 15, 2018

Florida Senate pushes back against EEOC’s prosecution of sexual harassment allegations

By Pamela Wolf, J.D.

Make no mistake: The EEOC is tuned into the #MeToo movement. The agency is apparently taking on the Florida State Senate for its alleged role in permitting and failing to correct a sexually hostile environment that it either knew or should have known about.

But the Florida legislative body is fighting back. In a lawsuit filed on October 9, the Florida Senate is challenging the EEOC’s authority to prosecute an administrative action for sexual harassment and retaliation allegations leveled against the Florida Legislature by a senate aide, asserting that the administrative proceedings violate the Florida Senate’s sovereign and constitutional rights.

Complaint made to senate. The aide previously filed a complaint under state senate rules accusing a former senator of sexual harassment, according to the legislators’ complaint. The claim, which was independently investigated, resulted in a probable cause finding and recommendations for sanctions.

The special master who conducted the investigation also wrote: “The allegations of quid pro quo conduct (physical contact or sexual intimacy in exchange for support of legislative initiatives) made by a witness other than Complainant, and seemingly confirmed in text messages from Respondent, appear to violate ethics rules, and may violate laws prohibiting public corruption.” He recommended that these allegations be referred to law enforcement for further investigation. “An internal investigation pursuant to Senate Rules, referral to the Florida Commission on Ethics, and/or some other appropriate mechanism of investigation of the alleged ethics violations is also recommended,” he said.

The former senator resigned and gave up gubernatorial aspirations after the report on the investigation and the resulting probable cause finding were released. A state investigation subsequently determined there was not enough evidence to warrant criminal charges.

Turning to the EEOC. The senate aide, who still works in the state legislature, later turned to the EEOC, alleging claims under the Florida Civil Rights Act and Title VII. The EEOC filed an amended charge so that it could be pursued under the Government Employee Rights Act of 1991. GERA extends certain rights and remedies under Title VII to particular individuals who serve state-level elected officials.

“The Senate knew, or should have known, of the unlawful conduct of Senator [alleged harasser] and did not take any steps to prevent his abuses and protect its employees,” according to the EEOC charge filed by the senate aide (as quoted in the senate’s complaint).

As outlined in the complaint, the matter is now in front of an administrative law judge who has not been very receptive to the state senate’s arguments that the suit should be dismissed or stayed on various procedural, sovereignty, and immunity grounds.

Seeking relief in federal court. The Florida Senate has now turned to a federal court in the Northern District of Florida for relief, filing a two-count complaint alleging an unconstitutional breach of sovereign immunity and an unconstitutional deprivation of the right to a jury trial against the federal government, the EEOC, and the EEOC’s Commissioners.

The Florida Senate alleges that in its legislative body, neither the senate aide’s allegations nor the report of the special master “made any allegations or findings of sexual harassment, retaliation, adverse employment action, or any other conduct by the Florida Senate or Senate leadership. Moreover, the senate aide has remained employed as a Florida Senate staffer with full salary, benefits, and raises.”

The complaint seeks declaratory relief that GERA does not validly abrogate the Florida Senate’s sovereign immunity as to this case, and that the Seventh Amendment right to a jury trial applies to a claim for money damages under GERA. The Florida Senate is also asking the court for an injunction prohibiting further prosecution of the administrative law proceeding and ordering its dismissal with prejudice due to the Florida Senate’s sovereign immunity.

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