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Sexual Orientation Discrimination Q & A

With Employment Law Attorneys Serving Central Florida, Including Citrus, Marion & Alachua Counties

Q: What federal law has been used as a basis for arguing that sexual orientation discrimination is an unlawful employment practice?

A: Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sex. Title VII does not explicitly forbid discrimination on the basis of sexual orientation. In other words, the plain text of Title VII does not include the term “sexual orientation.” When bringing sexual orientation discrimination claims in federal court, employees have argued that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII.

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Q: Does the E.E.O.C. consider sexual orientation discrimination an unlawful employment practice under federal law?

A: Yes. The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for interpreting and enforcing federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act, and the Age Discrimination in Employment Act. In Baldwin v. Foxx, 2015 WL 4397641 (E.E.O.C. July 15, 2015), the EEOC adopted the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.

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Q: Has the U.S. Supreme Court ruled on the issue of whether sexual orientation discrimination is an unlawful employment practice under federal law?

A: To date, the U.S. Supreme Court has not addressed the issue of whether sexual orientation discrimination is an unlawful employment practice under federal employment discrimination law. In Evans v. Georgia Hospital, 850 F.3d 1248 (11th Cir. 2017), Jameka Evans, the individual who brought the lawsuit, filed a petition for certiorari with the Supreme Court asking the Court to hear her appeal and rule that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sexual orientation. In December 2017, the Supreme Court issued an order declining to exercise jurisdiction and hear the appeal. Thus, the Supreme Court elected not to address the issue of whether Title VII’s protections against sex discrimination extend to sexual orientation discrimination.

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Q: Does federal law protect Florida employees from sexual orientation discrimination?

A: The U.S. Eleventh Circuit Court of Appeals is the federal court with appellate jurisdiction over the federal district courts in Alabama, Florida, and Georgia. The Eleventh Circuit is required to comply with the rulings of the U.S. Supreme Court on federal law. However, if the Supreme Court has not addressed an issue, the Eleventh Circuit has the authority to set legal precedent for federal law for federal district courts in the Eleventh Circuit. In Evans v. Georgia Regional Hospital, 850 F.3d 1249 (11th Cir. 2017), the Eleventh Circuit ruled that Title VII of the Civil Rights Act of 1964 (Title VII) does not prohibit discrimination on the basis of sexual orientation. Evans is binding precedent in the Eleventh Circuit and must be followed by federal district courts in Alabama, Florida, and Georgia. Under the Eleventh Circuit’s ruling in Evans, Title VII does not protect employees who are employed in Alabama, Florida, or Georgia from sexual orientation discrimination.

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Q: Has any federal appellate court ruled that sexual orientation discrimination is an unlawful employment practice under federal law?

A: Yes. In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017), the U.S. Seventh Circuit Court of Appeals became the first federal appellate court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). In Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the U.S. Second Circuit Court of Appeals became the second federal appellate court to hold that sexual orientation discrimination is covered under Title VII’s prohibition against sex discrimination.

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Q: What is the jurisdiction of the U.S. Seventh Circuit Court of Appeals?

A: The U.S. Seventh Circuit Court of Appeals is the federal appellate court with appellate jurisdiction over the federal district courts in Illinois, Indiana, and Wisconsin. Under the Seventh Circuit’s decision in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017), Title VII of the Civil Rights Act of 1964 protects employees who are employed in Illinois, Indiana, and Wisconsin from sexual orientation discrimination.

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Q: What is the jurisdiction of the U.S. Second Circuit Court of Appeals?

A: The U.S. Second Circuit Court of Appeals is the federal court with appellate jurisdiction over the federal district courts in Connecticut, New York, and Vermont. Under the Second Circuit’s decision in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), Title VII of the Civil Rights Act of 1964 protects employees who are employed in Connecticut, New York, and Vermont from sexual orientation discrimination.

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Q: Must federal and state courts in Florida comply with the decisions in Hively and Zarda?

A: No. The decisions in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017) and Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) are not binding on federal or state courts in Florida. Federal courts in Florida are only bound by decisions of the U.S. Supreme Court and the U.S. Eleventh Circuit Court of Appeals. Florida state courts are only bound by the decisions of the U.S. Supreme Court, the Florida Supreme Court, and the Florida District Courts of Appeal. Because Hively and Zarda are not binding in Florida, federal and state courts in Florida are not required to follow them. Although they are not binding in Florida state courts, Hively and Zarda constitute highly persuasive authority in Florida state courts that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

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Q: Is there a Florida state law that makes sexual orientation discrimination an unlawful employment practice?

A: The Florida Civil Rights Act (FCRA) is patterned after Title VII of the Civil Rights Act of 1964 (Title VII). Because the FCRA is patterned after Title VII, courts interpret the two statutes as if they were one and the FCRA is given the same construction as Title VII. Like Title VII, the FCRA protects employees from discrimination on the basis of sex. However, like Title VII, the FCRA does not expressly prohibit discrimination on the basis of sexual orientation. Because the FCRA is given the same construction as Title VII, the federal appellate court decisions in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017) and Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) are highly persuasive authority for the proposition that the FCRA’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Although the U.S. Eleventh Circuit ruled in Evans v. Georgia Regional Hospital, 850 F.3d 1249 (11th Cir. 2017) that Title VII does not prohibit discrimination on the basis of sexual orientation, the Eleventh Circuit’s decision in Evans is not binding in Florida state courts.

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Q: Have courts recognized any legal theory that can be used to protect gay and lesbian employees from discrimination?

A: As observed by the U.S. District Court for Oregon in Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 212 (D. Or. 2002), “nothing in Title VII [of the Civil Rights Act of 1964] suggests that Congress intended to confine the benefits of that statute to heterosexual employees only.” Consequently, as explained by the U.S. Third Circuit Court of Appeals in Prowel v. Wise Business Farms, Inc., 579 F.3d 285 (3d Cir. 2009), “a homosexual individual is [not] barred from bringing a sex discrimination claim under Title VII.” Gay and lesbian employees who are discriminated against because they fail to conform to gender or sex stereotypes are victims of sex discrimination under Title VII. This theory of sex discrimination is known as a “gender stereotyping” or “sex stereotyping” claim. Federal courts have consistently ruled that Title VII condemns gender or sex stereotyping and routinely upheld Title VII claims based on the gender or sex stereotyping theory of sex discrimination.

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Q: Does the gender or sex stereotyping theory of sex discrimination protect gay and lesbian employees from discrimination on the basis of sexual orientation?

A: No. Under the gender or sex stereotyping theory of sex discrimination, a gay or lesbian employee is not being discriminated against on the basis of sexual orientation. Instead, a gay or lesbian employee is being discriminated against for failure to conform to gender stereotypes. For example, a gay male employee is being discriminated against because he does not comply with societal stereotypes of how men should look or behave. Likewise, a lesbian employee is being discriminated against because she does not comply with societal stereotypes of how women should look or behave. When an employee is subjected to an adverse employment action for failure to conform to the stereotypes of his or her gender, the employee has been discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. As observed by the U.S. Ninth Circuit Court of Appeals in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), “discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.”

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Q: Does the U.S. Supreme Court recognize a gender or sex stereotyping claim?

A: Yes. The gender or sex stereotyping theory of sex discrimination was first recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the Supreme Court held that when an employee is subjected to an adverse employment action that is motivated by the employee’s failure to conform to gender or sex stereotypes, the employee has been discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964.

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Q: Do the facts in Price Waterhouse illustrate how an employee is punished for noncompliance with gender or sex stereotypes?

A: Yes. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the female plaintiff, Hopkins, was a senior manager at an accounting firm who had been denied a partnership. Hopkins was described by various partners as “macho,” “a lady using foul language,” and someone who had been a “tough-talking somewhat masculine hardnosed manager.” Hopkins was told that she could improve her chances for a partnership if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court concluded that this evidence reflected that Hopkins was denied a partnership because she failed to conform to stereotypes of her gender or sex. In other words, Hopkins was denied a partnership because she did not conform with societal stereotypes concerning how a woman should look or behave.

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Q: Must the U.S. Supreme Court’s decision in Price Waterhouse be followed by state and federal courts in Florida?

A: Yes. The U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) is binding on state and federal courts in Florida. This means that the gender or sex stereotyping theory of sex discrimination is a viable cause of action in state and federal courts in Florida. In other words, Price Waterhouse is the law of the land.

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Q: Can the gender or sex stereotyping theory of sex discrimination be used to protect gay and lesbian employees from harassment?

A: Yes. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Because gender or sex stereotyping is a form of prohibited sex discrimination, an employee who is harassed because of his or her failure to conform to gender or sex stereotypes is also discriminated against on the basis of sex in violation of Title VII. This means that when a gay or lesbian employee is harassed because he or she was perceived as failing to conform to gender or sex stereotypes, the employee can bring a claim for hostile work sex-based harassment under Title VII. However, the gender or sex stereotyping theory of sex discrimination does not protect gay and lesbian employees from harassment on the basis of sexual orientation. Instead, the gender or sex stereotyping theory of sex discrimination protects gay and lesbian employees from harassment because of their failure to conform to gender or sex stereotypes.

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Q: Is there a case where a court ruled that a gay man was harassed because of his perceived failure to conform to gender or sex stereotypes?

A: There are many cases. One case is Anonymous v. Omnicorn Group, Inc., 852 F.3d 195 (2d Cir. 2017) (previously captioned as Christiansen v. Omnicorn Group, Inc.). In that case, Christiansen, an openly gay may, claimed that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. The U.S. Second Circuit Court of Appeals ruled that Christiansen’s claim that he was harassed for failure to conform to gender or sex stereotypes was a cognizable gender or sex stereotyping claim under Title VII of the Civil Rights Act of 1964. The Second Circuit’s decision establishes that a gay man can ground a hostile work environment harassment claim on evidence that other employees, whether male or female, harassed him because he was perceived as not meeting the stereotyped expectations of masculinity.

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Q: Is there a case where a court ruled that a lesbian was harassed because of her perceived failure to conform to gender or sex stereotypes?

A: There are many cases. One case is Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 212 (D. Or. 2002). In that case, Heller, who is a lesbian, alleged that she was harassed because of her failure to conform to a supervisor’s “stereotype of how a woman ought to behave.’ The court found that Heller presented sufficient evidence of severe or pervasive sex-based harassment to establish that she worked in a hostile work environment. The decision in Heller demonstrates that a lesbian can ground a hostile work environment harassment claim on evidence that other employees, whether male or female, harassed her because she was perceived as not meeting the stereotyped expectations of femininity.

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Q: Does federal law protect transgender individuals from discrimination based on their transgender status?

A: In EEOC v. R.G. & G.R. Harris Funeral Homes, 2018 WL 177669 (6th Cir. 2018), the U.S. Sixth Circuit Court of Appeals became the first federal appellate court to rule that “discrimination on the basis of transgender and transitioning status” is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Under the Sixth Circuit’s decision, Title VII’s protection against sex discrimination includes discrimination based on transgender status. In support of its ruling, the Sixth Circuit explained that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping” because “a transgender person is someone who fails to act and/or identify with his or her gender.” Thus, the Sixth Circuit grounded its decision on the gender or sex stereotyping theory of sex discrimination.

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Q: Am I protected from retaliation for complaining about sex-based discrimination?

A: Yes. Employees are protected from retaliation when they complain about sex-based discrimination in the workplace—regardless of whether their complaint is about sex-based discriminatory behavior towards them or other employees. In other words, employees cannot be retaliated against because they complained about sex-based discrimination they endured or other employees endured.

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Q: Are gay and lesbian employees protected from retaliation when they complain about discrimination for failure to conform the gender or sex stereotypes?

A: Yes. When a gay or lesbian employee complains that he or she is being discriminated against because of a perceived failure to conform to gender or sex stereotypes, the employee is making a complaint of sex discrimination. Under well-established law, employees are protected from retaliation when they complain about sex discrimination.

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Q: Are Florida employees protected from retaliation for complaining about sexual orientation discrimination?

A: In Florida, sexual orientation discrimination does not constitute an unlawful employment practice under Title VII of the Civil Rights Act of 1964 (Title VII). However, in order to be protected from retaliation under Title VII or the Florida Civil Rights Act (FCRA), an employee only has to show that he or she had a good faith, reasonable belief that the behavior complained about constituted an unlawful employment practice. In other words, the employee does not have to prove that the behavior was in fact an unlawful employment practice. Based on the holdings in
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 33 (7th Cir. 2017) and Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) that sexual orientation is discrimination on the basis of sex for purposes of Title VII, a compelling argument can be made that any employee who complains about perceived sexual orientation discrimination has a good faith, reasonable belief that the perceived discrimination constituted an unlawful employment practice under Title VII and the FCRA and, thus, the employee is protected from retaliation by Title VII and the FCRA.

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Q: Do You Have More Questions Or Believe You Have A Case?

A: If you have more questions or believe that you have an employment discrimination case, please contact our office to speak with an employment law lawyer. You will never have to pay to speak with an employment law attorney here. We can help you take action to protect and vindicate your employee rights. We take employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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