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Aaron Tandy Authors for The Florida Bar ‘Is Protection for Florida LGBTQ Employees on the Horizon?’

By April 19, 2019August 30th, 2019No Comments
The Checkoff
Aaron Tandy

Is Protection for Florida LGBTQ Employees on the Horizon?

By Aaron W. Tandy
April 2019

Aaron W. Tandy is a partner with Pathman Schermer Tandy, LLP and a member of its commercial litigation department.

Unlike some state laws that specifically prohibit discrimination on the bis of sexual orientation,1 neither the Florida Civil Rights Act2 (FCRA) nor Title VII of the Civil Rights Act of 19643 (Title VII) includes such specific language. Both the FCRA and Title VII only prohibit discrimination by employers on the basis of the sex of their employees; i.e., an employee’s gender as male or female. Further—at least for now—the Eleventh Circuit, Florida federal district courts, and Florida state courts continue to draw a distinction between employee discrimination and retaliation claims on the basis of sexual orientation (which are not covered under Title VII or the FCRA) and claims on the basis of gender non-conformity (which are covered).4

However, efforts toward providing more safeguards for Florida lesbian, gay, bisexual, transgender, and questioning (LGBTQ) employees are making headway on the legislative front, albeit incrementally. First, individual counties and communities are passing local ordinances intended to provide some modicum of protection for these workers. Second, individual employers are stepping up around the state to include protections for their LGBTQ employees in non-discrimination policies and directives.

Third, State Senator Joe Gruter recently introduced the Florida Inclusive Workforce Act, SB 438, which would amend the FCRA to prohibit discrimination in employment on the basis of gender identity and sexual orientation. While these measures do not prevent all discrimination against Florida’s LGBTQ population (which a recent survey put at over one million residents), this legislation, if passed, will expand and extend the protections afforded by law to other minority and disenfranchised groups to these individuals and families, positively impacting Florida’s business community by attracting skilled and valuable employees to the state and bringing Florida in line with other states around the country.

Additionally, broader federal protections may come out of the United States Supreme Court this term or next. As of this writing, there are two competing petitions for writs of certiorari pending before the Supreme Court regarding the expansion of Title VII to causes of action for sexual orientation discrimination. Bostock (Docket No. 17-1618) and Zarda (Docket No. 17-1623) were distributed for conference of the justices on February 15, 2019.5 Also distributed for the February 15th conference was the appeal in R.G. & G.R. Harris Funeral Homes, Inc. (Docket No. 18-107), seeking to extend Title VII protections to transgender employees.6 Of course, the retirement of Justice Anthony Kennedy and appointment of Justice Brett Kavanaugh, as well as the prior appointment of Justice Neil Gorsuch, has realigned the Court from the majority that decided Obergefell v. Hodges, 7 which recognized a fundamental right of same sex couples to marry. Nevertheless, protection for LGBTQ workers would seem to be a logical progression from this case, as the right to be free from discrimination as part of the workforce is a right enjoyed by other minority communities.

Until the Supreme Court or Congress acts, jurists will continue to face the prospect of adhering to circuit precedent that some courts have found perpetuates an outmoded distinction between gender non-conformity claims and sexual orientation discrimination.8

1   See, e.g., N.Y. Exec. Law § 296(1)(a).
2   Fla. Stat. §§ 760.01, et seq.
3   42 U.S.C. §§ 2000e, et seq.
4   Compare Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 F. App’x 964 (11th Cir. 2018) (affirming dismissal of sexual orientation discrimination claim) with Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (finding discrimination on the basis of gender nonconformity is sex discrimination). See also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (vacating trial court dismissal of plaintiff’s gender non-conformity claims but confirming dismissal of claims for discrimination and retaliation based on sexual orientation). Recently the Fifth Circuit Court of Appeals joined the Eleventh Circuit in finding that Title VII does not prohibit discrimination on the basis of sexual orientation. Wittmer v. Phillips 66 Co., __ F.3d __, 2019 U.S. App. LEXIS 3731 (5th Cir. Feb. 6, 2019). In doing so, the Fifth Circuit acknowledged that three other circuits—the Second, Sixth, and Seventh—had decided the question the other way. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).
5   This is not the first time these cases have been scheduled for conference, only to have the discussion postponed. See
6   See cases/r-g-g-r-harris-funeral-homes-inc-v-equalopportunity-employment-commission/
7   576 U.S. __ (2015).
8   See, e.g., Coleman v. Amerihealth Caritas, 2017 U.S. Dist. LEXIS 85319 (E.D. Pa. June 2, 2017) (dismissing sexual orientation discrimination claims but granting leave to amend to bring gender stereotyping claim).