Florida Senate - 2017                                     SB 410
       By Senator Stewart
       13-00273B-17                                           2017410__
    1                        A bill to be entitled                      
    2         An act relating to employment discrimination; amending
    3         s. 448.07, F.S.; revising provisions prohibiting
    4         discrimination on the basis of sex to include
    5         discrimination on the basis of gender identity;
    6         providing definitions; prohibiting an employer from
    7         providing less favorable employment opportunities to
    8         employees based on their sex or gender identity;
    9         providing exceptions; specifying civil penalties;
   10         revising applicability; amending s. 448.102, F.S.;
   11         prohibiting an employer from taking certain employment
   12         actions against employees; creating s. 448.111, F.S.;
   13         providing a short title; prohibiting an employer from
   14         engaging in certain activities relating to employee
   15         wages and benefits or requiring an employee to sign
   16         certain waivers; providing an effective date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Section 448.07, Florida Statutes, is amended to
   21  read:
   22         448.07 Wage rate discrimination based on sex or gender
   23  identity prohibited.—
   24         (1) DEFINITIONS.—As used in this section, unless the
   25  context or subject matter clearly requires otherwise, the
   26  following terms shall have the meanings as defined in this
   27  section:
   28         (a) “Business necessity” means an overriding legitimate
   29  business purpose that relies on a bona fide factor, as described
   30  in subparagraph (2)(a)4., to effectively fulfill such business
   31  purpose.
   32         (b)(a) “Employee” means any individual employed by an
   33  employer, including individuals employed by the state or any of
   34  its political subdivisions or instrumentalities of subdivisions.
   35         (c)(b) “Employer” means any person who employs two or more
   36  employees.
   37         (d)“Gender identity” means an individual’s identification
   38  of self as male, female, a combination of male and female, or
   39  neither male or female, regardless of the individual’s
   40  physiology or assigned sex at birth.
   41         (e)“Less favorable employment opportunities” means:
   42         1.Assigning or directing an employee to a position or
   43  career track in which the work performed requires substantially
   44  less skill, effort, and responsibility than the work performed
   45  by the majority of individuals in the employee’s same occupation
   46  and labor market area;
   47         2.Assigning the employee work less likely to lead to a
   48  promotion or career advancement opportunity; or
   49         3.Limiting or depriving an employee of a promotion or
   50  career advancement opportunity that would otherwise be available
   51  to the employee but for the employee’s sex or gender identity.
   52         (h)(c) “Wages” means and includes all compensation paid by
   53  an employer or the employer’s his or her agent for the
   54  performance of service by an employee, including the cash value
   55  of all compensation paid in any medium other than cash.
   56         (f)(d) “Rate” with reference to wages means the basis of
   57  compensation for services by an employee for an employer and
   58  includes compensation based on time spent in the performance of
   59  such services, on the number of operations accomplished, or on
   60  the quality produced or handled.
   61         (g)(e) “Unpaid wages” means the difference between the
   62  wages actually paid to an employee and the wages required to be
   63  paid to an employee pursuant to subsection (3).
   66         (a) An No employer may not provide less favorable
   67  employment opportunities to employees based on their shall
   68  discriminate between employees on the basis of sex or gender
   69  identity or pay by paying wages to employees at a rate less than
   70  the rate the employer at which he or she pays wages to employees
   71  of the opposite sex or a different gender identity for
   72  substantially similar equal work on jobs the performance of
   73  which requires equal skill, effort, and responsibility, and
   74  which are performed under similar working conditions, except
   75  when the employer demonstrates the entire wage differential is
   76  based on one or more of the following reasonably applied factors
   77  when such payment is made pursuant to:
   78         1. A seniority system;
   79         2. A merit system;
   80         3. A system that which measures earnings by quantity or
   81  quality of production; or
   82         4. A bona fide differential based on any reasonable factor
   83  other than sex or gender identity, including, but not limited
   84  to, education, training, or experience. This subparagraph only
   85  applies if the employer demonstrates that the factor is not
   86  based on, or derived from, a sex-based or gender identity-based
   87  wage differential, is job related with respect to the position
   88  in question, and is consistent with a business necessity.
   89         (b)An employer who is paying a wage in violation of this
   90  section may not reduce another employee’s wage to comply with
   91  this section when exercised in good faith.
   92         (c)(b)A No person may not shall cause or attempt to cause
   93  an employer to discriminate against an any employee in violation
   94  of the provisions of this section.
   95         (3) CIVIL ACTION FOR UNPAID WAGES.—Any employer or person
   96  who violates the provisions of this section is liable to the
   97  employee for the amount of the difference between the amount the
   98  employee was paid and the amount he or she should have been paid
   99  under this section. Nothing in this section allows a claimant to
  100  recover more than an amount equal to any his or her unpaid wages
  101  while so employed for 1 year prior to the filing of the claim.
  102  An action to recover such liability may be maintained in any
  103  court of competent jurisdiction by the aggrieved employee within
  104  6 months after termination of employment. The court in such
  105  action may award to the prevailing party costs of the action and
  106  a reasonable attorney attorney’s fee.
  108         (a)An employer who violates this section is subject to a
  109  civil penalty of:
  110         1.Up to $2,500 for a first violation.
  111         2.Up to $3,000 for a second violation.
  112         3.Up to $5,000 for a third and each subsequent violation.
  113         (b)In determining the amount of a civil penalty to be
  114  assessed under paragraph (a), a court of competent jurisdiction
  115  shall consider the severity of the violation.
  116         (c) A minority business enterprise, as defined in s.
  117  288.703, is exempt from this section.
  118         (4)Nothing in this section or in s. 725.07, relating to
  119  discrimination based on sex in providing equal pay for equal
  120  services performed, is applicable to any employer, labor
  121  organization or member thereof, or employee whose employer is
  122  subject to the federal Fair Labor Standards Act of 1938, as
  123  amended.
  124         Section 2. Subsection (4) is added to section 448.102,
  125  Florida Statutes, to read:
  126         448.102 Prohibitions.—An employer may not take any
  127  retaliatory personnel action against an employee because the
  128  employee has:
  129         (4)(a)Discussed or disclosed the employee’s own wages;
  130         (b)Inquired about another employee’s wages;
  131         (c)Discussed another employee’s wages if such wages have
  132  been voluntarily disclosed by such employee;
  133         (d)Requested that the employer provide a reason for the
  134  amount of the employee’s own wages; or
  135         (e)Aided or encouraged another employee to exercise rights
  136  under this chapter.
  137         Section 3. Section 448.111, Florida Statutes, is created to
  138  read:
  139         448.111Helen Gordon Davis Fair Pay Protection Act.—
  140         (1) SHORT TITLE.—This section may be cited as the “Helen
  141  Gordon Davis Fair Pay Protection Act.”
  143  BENEFITS.—An employer may not:
  144         (a)1.Screen a job applicant based on prior wages or
  145  benefits or require that the applicant’s prior wages or benefits
  146  satisfy minimum or maximum criteria.
  147         2.Request or require as a condition of being interviewed,
  148  or as a condition of continued consideration for an employment
  149  offer, that an applicant disclose prior wages or benefits.
  150         (b)Request or inquire about the prior wages or benefits of
  151  an applicant from a current or former employer. However, an
  152  applicant may provide written authorization to a prospective
  153  employer to confirm such prior wages or benefits after an
  154  employment offer with compensation has been made to the
  155  applicant.
  156         (c)Prohibit an employee from:
  157         1.Discussing or disclosing the employee’s own wages;
  158         2.Inquiring about another employee’s wages;
  159         3.Discussing another employee’s wages if such wages have
  160  been voluntarily disclosed by such employee; or
  161         4.Requesting that the employer provide a reason for the
  162  amount of the employee’s own wages.
  163         (d)Require an employee to sign a waiver or any other
  164  document that prohibits the employee from:
  165         1.Discussing or disclosing the employee’s own wages;
  166         2.Inquiring about another employee’s wages; or
  167         3.Discussing another employee’s wages if such wages have
  168  been voluntarily disclosed by such employee.
  169         Section 4. This act shall take effect July 1, 2017.