Less Than 15 Employees is Not a Free Pass to Discriminate

Categories: blog

Some companies mistakenly believe that because they have less than 15 employees they can treat their employees however they wish (including discriminating against them). However, such belief can be a costly mistake. Yes, the Florida Civil Rights Act (“FCRA”) and Title VII require a minimum of 15 employees in order to be sued for discrimination; many employers tend to forget about Civil Rights Act of 1866, 42 U.S.C. 1981. Section 1981 prohibits discrimination on the basis of one’s race. Although Section 1981 was initially created to protect discrimination against blacks after slavery was abolished, it has expanded to include other ethnicities (i.e. Asian, Hispanic, etc.) and even religions. Essentially, Section 1981 has gone beyond just “racial” discrimination, to include some individuals who may be covered under the “national origin” or “religious” categories under Title VII and FCRA. Under Section 1981, there is no limit on how many employees a company must have, therefore, this opens up all companies in the United States to liability under this federal law.

Although, Section 1981 does not cover gender discrimination, the Equal Pay Act (“EPA”) may protect some individuals who have suffered from gender discrimination (at the hand of an employer who employs less than 15 employees), but only for the portion of their claim based on a pay difference, due to their gender.  Although the EPA does not cover all damages resulting from gender discrimination, it still opens up employers to liability, regardless of size, if part of the gender discrimination included a pay difference.

A final law that has no regard to the amount of employees is the Fair Labor Standards Act (“FLSA”). The FLSA governs minimum wages and overtime wages of an employee. Essentially, if a company fails to pay an employee for any overtime hours that employee worked or pays the employee less than minimum wage, the company shall be liable not just for the amount owed, but twice that amount as liquidated damages, plus attorney’s fees and costs, regardless of how many employees are employed by the company.

In summary, smaller employers shouldn’t rely on their lack of numbers to act recklessly in the workplace. Employers should always conduct themselves as if they were covered under federal and state laws in an abundance of caution – not only will thye protect themselves, it is also the right thing to do.  If you are an employer with less than 15 employees, or if you have been discriminated against by your employer, even if your employer has less than 15 employees, set a consult with Wilson McCoy, P.A. to evaluate your matter.