Can You Sue for Sexual Harassment if Your Florida Employer Has Fewer Than 15 Employees?
Federal and state laws require an employer to have 15 or more employees before they can be sued for sexual harassment. However, in Florida, you can still find justice against small employers by using local county ordinances or filing common law civil torts like Battery or Assault.
One of the most frustrating aspects of employment law is discovering that you might be barred from suing your employer simply because the company is too small. For employees working at local diners, small medical clinics, or family-owned retail shops in Florida, finding out the law might not protect them from a predatory boss is devastating. However, this '15-employee rule' is not the end of the line. There are powerful local and common law alternatives available. To explore these specialized options, you should connect with a knowledgeable employment attorney in our US Lawyers Directory.
The 15-Employee Threshold Explained
The primary laws that protect workers from sexual harassment are the federal 42 U.S.C. § 2000e(b) and the state-level Fla. Stat. § 760.02. Unfortunately, lawmakers drafted these statutes to exempt small businesses from heavy litigation. Both laws explicitly state that an 'employer' is only covered if they have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. If your employer only has 8 workers, the EEOC and the FCHR will dismiss your claim for lack of jurisdiction.
Local County Protections for Small Business Employees
Recognizing this massive loophole, several progressive counties in Florida have enacted their own local human rights ordinances that lower the employee threshold. If your workplace is located in one of these counties, you can file a claim locally.
Miami-Dade Human Rights Ordinance
If you work in Miami, you are protected by the Miami-Dade County Code § 11A-28. This local ordinance strictly prohibits sexual harassment and lowers the threshold dramatically. It applies to any employer with 5 or more employees. You would file your grievance not with the state, but with the Miami-Dade Commission on Human Rights, Miami.
Broward and Hillsborough County Protections
Similarly, Broward County (Fort Lauderdale) and Hillsborough County (Tampa) have local codes to protect small business workers. The Broward County Code § 16½-33 applies to employers with 5 or more employees. Complaints are filed with the Broward County Professional Standards/Human Rights Section, Fort Lauderdale. Hillsborough County also maintains local ordinances allowing claims against smaller employers, providing a crucial safety net for victims.
Filing Common Law Tort Claims (Battery/Assault)
If your county does not have a local ordinance, or if your employer has fewer than 5 employees, you can bypass employment statutes altogether. If the sexual harassment involved any unwanted physical touching (groping, kissing, rubbing), you can sue the individual harasser directly for the civil tort of Battery.
Furthermore, in the landmark case Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099 (FL Supreme Court 1989), the Florida Supreme Court ruled that workers' compensation exclusivity rules do not protect employers from lawsuits involving sexual harassment batteries. This means you may be able to sue the small business directly for Negligent Retention or Intentional Infliction of Emotional Distress if the owner knew about the harassment and did nothing to stop it.
Step-by-Step Process for Small Employers
Handling a claim against a small business requires a different strategy than suing a massive corporation.
Step 1: Count the Employees Correctly
Your lawyer will first determine exactly how many people work there. This includes part-time workers, owners who draw a salary, and sometimes independent contractors who are misclassified. If it totals 15, you use the standard EEOC/FCHR route.
Step 2: File with the County Agency
If there are between 5 and 14 employees, and you are in a protected county, your lawyer will draft a complaint and file it with the local county human rights commission. The county will conduct an investigation similar to the EEOC.
Step 3: File a Civil Tort Lawsuit
If the company is simply too small for any agency, your lawyer will file a standard civil lawsuit in your local Circuit Court, alleging Battery, Assault, or Intentional Infliction of Emotional Distress against the individual harasser and potentially the business itself.
How Much Does it Cost?
Like most civil rights and personal injury claims, suing for battery or local ordinance violations is typically done on a contingency fee basis. You will not pay hourly rates; the lawyer takes 33% to 40% of the settlement. One challenge with very small businesses is that they might not have Employment Practices Liability Insurance (EPLI), meaning the settlement money must come out of the business owner's pocket. Your lawyer will investigate the company's assets to ensure they can actually pay a judgment.
How Long Does the Process Take?
Local county agencies often move slightly faster than the backlogged federal EEOC, taking about 4 to 8 months to investigate. If you file a direct civil lawsuit for Battery in a Florida Circuit Court, the timeline heavily depends on the court's docket and how aggressively the small business fights back. Generally, these civil tort lawsuits take 1 to 2 years to resolve.
Frequently Asked Questions (FAQ)
Do part-time employees count toward the 15-employee minimum?
Yes. Under 42 U.S.C. § 2000e, part-time employees generally count toward the 15-employee threshold as long as they were on the payroll for each working day in 20 or more weeks during the calendar year.
Can I sue my boss personally instead of the company?
Under standard 42 U.S.C. § 2000e employment laws, you generally sue the company, not the individual. However, if you file a common law tort claim like Battery or Assault, you absolutely sue the individual boss or coworker who physically harassed you.
What if the harassment was purely verbal and the company is small?
If the harassment was only verbal (no physical touching), you cannot sue for Battery. If the company has fewer than 15 employees and is not in a protected county like Miami-Dade, your legal options are severely limited. This is a known loophole in the law.
Are independent contractors counted as employees?
Generally, true independent contractors (1099 workers) do not count toward the employee threshold. However, if the employer misclassified workers who should be W-2 employees just to stay under the 15-person limit, a court can order them to be counted.
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