Aaron Tandy of Pathman Lewis.

On April 22, the U.S. Supreme Court agreed to place three employment cases on its docket for the October term—Bostock v. Clayton County, Georgia, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. Equal Opportunity Employment Commission. Each of the cases asks the court to interpret that language of Title VII of the Civil Rights Act of 1964 (Title VII) that prohibits discrimination on the basis of “sex” broadly to embrace claims based on sexual orientation or gender identity discrimination. All of the parties watching the trio of cases closely hope the court will provide clear guidance on the interpretation of Title VII as federal courts currently are split as to whether federal law provides employees protection from discrimination based upon their sexual orientation or gender identity.

Currently, South Florida employees in Broward, Palm Beach, Miami-Dade and Monroe counties have neither a federal cause of action based upon Title VII nor a cause of action based on the Florida Civil Rights Act (FCRA). Only a patchwork of county and local ordinances (see, e.g., Miami Dade Code of Ordinances, Section 11A-26) make it unlawful in those jurisdictions for employers to consider sexual orientation when engaging with their employees with regard to job duties and employment decisions.

For now, Florida has no statewide statute specifically prohibiting bias in hiring, promotion, job assignment, termination or compensation on the basis of one's sexual orientation. Unlike some state laws that specifically prohibit discrimination on the basis of “sexual orientation,” the FCRA does not include such specific language and has not been interpreted to cover such situations.

Instead, the FCRA only prohibits discrimination by employers on the basis of the “sex” of their employees, i.e., the employee's gender as “male” or “female” or “marriage”, i.e., meaning whether a party is married or not, not the gender of their spouse.

During this past legislative session, state Sen. Joe Gruter introduced the Florida Inclusive Workforce Act, SB 438, which would have amended the FCRA to prohibit discrimination in employment on the basis of gender identity and sexual orientation. Gruter's efforts were supported by several large Florida employers who currently privately offer protections to their LGBTQ employees. Unfortunately, based upon current proposed committee discussions, it appears that the 2019 Florida Legislative Session will end without action on the bill. A more comprehensive bill seeking to offer protections in housing and other areas has stalled in the legislature during past sessions.

Until the Supreme Court rules, the U.S. District Court for the Eleventh Circuit, Florida federal district and Florida state courts likely will continue to draw a line 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 nonconformity (which are covered). Other circuits have taken a different approach, finding that sexual orientation discrimination is prohibited by the language of Title VII as interpreted in light of changing societal norms despite Congress not amending the statute explicitly. To date, the Eleventh Circuit has specifically declined to join those jurisdictions. Despite this, the U.S. Equal Employment Opportunity Commission continues to pursue sexual orientation discrimination cases on behalf of Florida employees even if those claims are not recognized by the court.

While claims regarding sexual orientation and gender nonconformity harassment often overlap, only claims alleging that an employee suffered discrimination as a result of failing to adhere to prevailing cultural and societal expectations about what is “appropriate” to their gender create viable causes of action in Florida under Title VII and the FCRA. Further, courts have required that employees alleging gender nonconformity claims allege more than just mistreatment as a result of their gender or gender attraction. Florida courts have routinely dismissed complaints or granted summary judgment against employees whose claims in reality are based upon allegations that co-workers harassed them because of their sexual orientation.

For now, most protections come because of the voluntary, private actions of Florida employers. On the other hand, Florida courts have also upheld employer's actions in disciplining or terminating employees found to have harassed their co-workers about their sexual orientation or gender identification in violation of company policies.

Aaron Tandy heads Pathman Lewis' employment law practice, helping employers and employees navigate complex employment issues. He can be reached at [email protected].