The Supreme Court of Florida issued an opinion last week in the case of Gainesville Woman Care, LLC v. State, which deals a blow to the 2015 “Mandatory Delay Law,” which requires a 24 hour waiting period for women seeing an abortion. No. SC16-381, 2017 Fla. LEXIS 340 (Feb. 16, 2017).
In determining that an injunction preventing enforcement of the law is appropriate given a “substantial likelihood of success” in the attempt to defeat the law, the Court dismissed a list of state interests found potentially compelling by the First District, such interests to include:
. . . whether, in passing the privacy amendment in 1980, voters intended to deprive Florida and its citizens of the benefits of advances in medical knowledge and evolutions in federal law recognizing increasingly compelling state interests arising from, among other factors, the potentiality of life uniquely represented by the human fetus. Likewise, the trial court did not address the evidence of intent reflected in the State's many post-1980 laws and regulations specific to abortion; nor the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women's and authorized a requirement of parental notice of termination of a minor's pregnancy. Id. at 282.
. . . providing women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel, in protecting the unique potentiality of human life, in protecting the organic law of Florida from interpretations and impacts never contemplated or approved by Floridians or their elected representatives, and in protecting the viability of a duly-enacted state law.
Id. Despite the First District’s clear attempt to uphold the will of the majority of voters and of their elected officials in the arena of abortion, the Supreme Court again looked to the fundamental right of a woman to her privacy and stated that none of the reasons listed by the First District could be considered compelling.
Most interestingly, since the Court expressed in such powerful language the fundamental nature and broad expanse of a person’s right to bodily autonomy and privacy was its dismissal of any rights of the unborn child, described as the “potentiality of life uniquely represented by the human fetus” by stating “[s]uch social and moral concerns have no place in the concept of informed consent.” Id.
It seems likely this will only be one battle in the ongoing conflict between lawmakers, the people of the State of Florida, and the Supreme Court of Florida continue in the context of constitutional rights.
Prospective clients often wonder whether they can try to collect “pain and suffering” damages from another person or party when a dispute arises. Outside of certain somewhat limited types of claims (e.g., employment discrimination/retaliation, negligence cases, etc.), these types of damages are not normally available to aggrieved parties complaining of negligent behavior.
A recently decided case reminds parties of the greatest hurdle preventing “pain and suffering” (usually referred to as ‘non-economic damages’); the Florida Impact rule. In the case of G4S Secure Solutions USA, Inc. v. Golzar, the plaintiff had been allegedly captured in a state of undress on video from outside her home by a security guard holding his cell phone against her window while on his rounds in the early hours of the morning in a residential security job. No. 3D14-2588, 2016 Fla. App. LEXIS 16663, at *7 (3d DCA Nov. 9, 2016). The defendant security firm was alleged to have hired the guard without properly verifying certain aspects of the man’s past (including specifically allegations that he had done something similar previously). Id.
As the holding makes clear, non-economic damages are not available against the security company for negligent hiring since the employer’s behavior was allegedly negligent—not intentional—and the intentional conduct of the employee could not be imputed (i.e., held against) the employer for purposes of collecting non-economic damages. Id. This would violate both the law regarding imputing liability as well as Florida’s impact rule, which requires that there be an actual physical impact (i.e., touching) of the person in order for non-economic damages to be available. Id.
One exception to this rule about which sometimes laypersons are familiar is in the area of intentional infliction of emotional distress claims. However, given that these claims require no proof of touching, the standard is extraordinarily high for a plaintiff to prove in order to be awarded non-economic damages. The plaintiff must show:
(1) The wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
(3) the conduct caused emotion distress; and
(4) the emotional distress was severe.
Legrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. 3d DCA 2004).
If you have concerns about claims you may have against another person or company, contact the attorneys of Icard Merrill for information about non-economic damages in your case.
Those looking for further evidence of the changing tides of inclusion, gender and trans-gender equal opportunity, and broadening of the social consciousness can look no further than a recent brief the Equal Employment Opportunity Commission (EEOC) sought to file in aid of the American Civil Liberties Union (ACLU) in the case of exclusions in the employer’s employee health plan pertaining to “treatment, drugs, and services for or leading to ‘sex transformation surgery.’” The brief can be found here: https://www.aclu.org/legal-document/robinson-v-dignity-health-eeoc-amicus-brief
In what may raise eyebrows in many parts of the country, the EEOC supports claims in the complaint filed by the putative transgender employee that gender dysphoria is “a ‘serious medical condition’” and that “[u]nder ‘widely accepted standards of care,” the treatment (inclusive of “hormone therapy, sex reassignment surgery, and ‘other medical services that align individuals’ bodies with their gender identities’”) is “medically necessary.”
In the brief, the EEOC explains that “discrimination against transgender individuals because of their gender non-conformity is discrimination on the basis of sex.” This represents a continued expansion in recent years by the EEOC to include sexual orientation, sexual conformity, and similar issues under the umbrella of sex and/or gender discrimination.
This expansion has in some instances run afoul of judicial efforts to maintain a boundary between the two under Federal Title VII legislation, recently in a case before the U.S. Court of Appeals for the Seventh Circuit. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016).
As some long-held boundaries and lines between sexual orientation and identification continue to blur and fade, these issues will likely present more challenges for both employees and employers to ensure that the rights of people under the law are respected while respecting the rights of businesses to operate efficiently and in a lawful manner without undue governmental oversight. For help navigating these challenges on either side of the equation, contact the attorneys of Icard Merrill today.