When the first transgender discrimination case reached the U.S. Supreme Court, Chief Justice Roberts asked, “What do we do about bathrooms?” Now, The Supreme Court has been asked the question: Does Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination at work, apply to discrimination based on an individual’s gender identity or sexual orientation?
The case follows funeral director, Aimee Stephens (formerly known as Anthony Stephens), who was fired from her job when she wrote a letter to the owner informing him that she was transitioning from a man to a woman. In the letter, Stephens described how she felt imprisoned in her own body, how she “decided to become the person that my mind already is,” and how she would soon “return to work as my true self,” dressed “in appropriate business attire.” Shortly after submitting the letter, she was fired. In a later deposition, the owner explained that he decided to fire Stephens because she “was no longer going to represent himself as a man” and “wanted to dress as a woman.”
In last month’s oral arguments, the Court’s first few rounds of questions were focused on gender specific workplace policies, like bathrooms. The leadoff question led to other concerned questions that seemed to touch every realm of the nation’s transgender discussion – transgender men playing women’s sports, gender specific dress codes, and other hot button issues with the potential to cause “massive social upheaval.”
Along with Stephen’s case, the Supreme Court will decide on two consolidated cases, which involve claims that employers discriminated based on sexual orientation. With the Supreme Court set to adopt this politically charged debate, Florida’s employers need to be aware of what the law currently is and what changes may come.
The legal landscape for Florida employers on LGBTQ discrimination is complex, as is it includes Title VII, the Florida Civil Rights Act and differing municipal ordinances.
The Eleventh Circuit, which includes Florida in its jurisdiction, held in 2017’s Evans and 2019’s Bostock that Title VII does not prohibit an employer from discriminating against an employee or applicant based on their sexual orientation and/or gender identity.
The Florida Civil Rights Act (FCRA) does not specifically refer to “sexual orientation” or “gender identity,” but many municipal ordinances do. According to the Human Rights Campaign and the Movement Advancement Project, 12 out of Florida’s 67 counties, have an ordinance prohibiting discrimination based on sexual orientation and gender identity, including Miami-Dade, Leon, Broward, Palm Beach, Orange and Monroe counties. In light of this, employers should take note of (1) workplace locations, and (2) whether they meet the definition of “employer” under their applicable ordinance’s anti-discrimination provision.
The Supreme Court’s anticipated decision has the potential to affect the American workplace dramatically, and could pave the way for federal law claims based on workplace harassment and disparate treatment members of the LGBTQ community. Until then, Florida employers operating in any of the counties that have laws specifically protecting LGBTQ employees should audit their current workplace inclusion policies and consult employment counsel to assess potential legal risks.
*Special thanks to Thomas Raine, who assisted in the drafting of this post. Thomas is a third year Juris Doctor Candidate at the University of Miami School of Law.