Analysis and Discussion
The facts demonstrate that Petitioner was the wife of Mr. Robert Morand during the time she was employed by Respondent and that Respondent was aware of their marital relationship. At the DOAH hearing, Respondent admitted that although she was a satisfactory employee, Petitioner was terminated due to her relationship with Robert Morand. It is the fact that their relationship was a marital one and, as such protected under the Florida Human Rights Act of 1977, as amended, that Respondent's action must be found violative of Florida's anti- discrimination law.
The Florida Legislature stated its purpose in promulgating the Human Rights Act of 1977 as securing:
for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby protect their interest in personal dignity, to make avail- able to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
Section 760.01(2), Florida Statutes.
Section 760.10(1)(a), Florida Statutes, states that it is an unlawful employment practice for an employer:
To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to com- pensation, terms, conditions, or privileges of employment, because of such individual's
... marital status.
In Owens v. Upper Pinellas Association for Retarded Citizens, 8 FALR 438 (FCHR September 10, 1985), the Commission interpreted the term "marital status" broadly to include one's relationship to one's spouse, rather than narrowly to include only the fact that one is married, single, divorced or widowed.
Therein, the Commission determined that absent legislative intent to the contrary, such interpretation is consistent with the general purposes of the act and the legislative mandate for liberal construction. Subsections 760.01(2) and (3), Florida Statutes. Affirmed without opinion: Upper Pinellas Association for Retarded Citizens v. Florida Commission on Human Relations, 434 So.2d 754 (Fla. 2d DCA 1986).
A prima facie case of discrimination can be established in at least three ways. First, a petitioner may produce evidence which gives rise to an inference of discrimination by showing: (1) S/he was a member of the protected class; (b) S/he was performing the duties of the position in a satisfactory manner; and (c) Despite satisfactory performance, s/he was terminated. McDonnell Doualas v.
Green, 411 U.S. 732, 33 S.Ct. 1817 (1973). Second, a petitioner may offer direct evidence of discriminatory intent. Third, a prima facie case may be shown through statistical proof of a pattern of discrimination. Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir. 1985).
In the instant case, Petitioner met her burden of proof by establishing a prima facie case of discrimination by showing that she was married, was performing her job in a satisfactory manner, and despite her satisfactory performance, she was discharged. Thereafter, Respondent conceded that Petitioner was terminated due to her relationship with Mr. Morand, but that such action was necessary "to eliminate the likelihood that Robert Morand would be on or near company property."
As such, Respondent has admitted to an action which violates Florida law: Petitioner was terminated based solely on her marital relationship with Robert Morand. Nevertheless, Respondent raised an affirmative defense to its employment decision by stating that Petitioner's termination was necessary to prevent Mr. Morand from returning to Respondent's property.
It is well established that the burden of proof is upon the party asserting the affirmative of an issue before an administrative tribunal. Irvine v. Duval County Planning Commission, 466 So.2d 357, 360 (Fla. 1st DCA 1985); Florida Department of Transportation v. J.W.C. Company, Inc., 336 So.2d 778, 788 (Fla.
1st DCA 1981). Similarly, in Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (August 13, 1981), this Commission held that the burden is upon the applicant or employee to establish that the employer took adverse action against him based upon a prohibited basis-but that once the discriminatory action has been shown, the burden is upon the employer to establish an affirmative defense which justifies its otherwise unlawful action.
The Hearing Officer made the following findings which relate to Respondent's affirmative defense:
National employees made allegations of sexual harassment, rudeness, obscene language, threats, and potential violence against Robert Morand.
At the time of his layoff, Robert Morand was advised not to return to the plant property. While it is uncertain how many times Mr.
Morand returned, it is clear he returned to the site on at least one occasion between August 23 and August 26, 1985.
National elected to terminate Petitioner to eliminate the likelihood that Robert Morand would be on or near company property.
As the Commission was not provided a copy of the transcript of the DOAH hearing, the Panel is limited to the Hearing Officer's findings of fact contained in the Recommended Order. Based thereon, the Commission concludes
that Respondent has failed as a matter of law to meet its burden regarding its affirmative defense. Respondent failed to demonstrate that no alternate course of action was available and that it could not continue to function safely with Sharon Morand in its employ.
In EEOC v. St. Anne's Hospital of Chicago, Inc., 664 F.2d 128 (7th Cir. 1981), the court held that St. Anne's violated Title VII when it terminated employee Barbara Herzon in retaliation for hiring a black employee. Ms. Herzon was the Director of Communications in charge of the security department when she was terminated from St. Anne's. On March 1, 1978, she hired the first black consumer services representative employed by the hospital. Later that day, the hospital began receiving bomb threats, several unexplained fires were started, and one caller stated that he was"....going to fix that bitch Barbara. who
hired that black assistant." Thereafter, a hospital administrator requested Ms. Herzon to resign or she would be discharged because it was felt that she was an irritant to the person or persons making the threats and/or setting the fires.
Based on these facts, the court determined:
Section 704(a) was specifically designed to encourage employees to act to protect Title VII rights, and that is what Herzon has assertedly done. We agree with the Comm- ission that Herzon has demonstrated her opposition to unlawful discrimination by hiring the applicant she considered most qualified for the job without regard to his race.
St. Anne's points out, however, that the reason for the discharge was the threats and not Herzon's hiring decision.
In our case, the discharge of Herzon is also alleged to be for self-protective reasons.
The issue is whether Title VII permits the employer to discharge an employee for
hiring a black man because the racial animus of an anonymous caller threatens the secu- rity of the hospital. It would be a sad day for the enforcement of Title VII if
every unlawful threat of violence motivated by racial hate could make lawful the dis- charge of an employee for a hiring
decision that was itself required by the Act.
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At the same time, neither we nor the employer can ignore a possible risk to the lives of innocent persons.
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The discharge of Herzon for being an irritant to the treatening caller was lawful under Title VII only if the hospital demonstrates
that no alternative course of action
was available and that it could not continue to function safely with Herzon in its employ. Otherwise, the discharge of Herzon, assuming that the facts are as the Commission has alleged, was discriminatory and in violation of section 704(a) of the Act. At this stag
of the proceedings, we see no reason to assume that St. Anne's could not have enlisted adequate police protection and investigation to alleviate the threat without discharging Herzon.
St. Anne's Hospital, at 133-134. Footnote ommitted.
As the case above demonstrates, the fact that Petitioner may be the irritant and/or attractant to the person or persons wishing to do harm to Respondent is not sufficient, without more, to support an unlawful termination. Concerns for safety, while legitimate, cannot justify the unlawful discharge of a protected status employee unless the employer shows that no less discriminatory alternative course of action was available and that the continued safe functioning of Respondent's business necessitated Petitioner's termination. Since Petitioner met her burden of proof in establishing her prima facie case and Respondent did not meet its burden regarding its affirmative defense, Petitioner prevails in her discrimination claim. Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR January 5, 1986).
