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Sexual Orientation Discrimination Q & A

Q: Does federal law protect employees from discrimination on the basis of sexual orientation and transgender status?

A: Yes. In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court for the first time addressed the issue of whether an employer can fire an employee simply for being homosexual or transgender. In resolving that issue, the Supreme Court was required to decide whether discrimination against employees on the basis of sexual orientation or transgender status constitutes a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Under Title VII, employers are forbidden from discriminating against employees on the basis of sex. The Bostock Court ruled that discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of Title VII. The Supreme Court’s landmark ruling in Bostock makes discrimination against employees on the basis of sexual orientation or transgender status an unlawful discriminatory employment practice in violation of Title VII. In holding that discrimination on the basis of sexual orientation or transgender status is covered by Title VII’s protections against unlawful employment discrimination, the Bostock Court resolved a disagreement among federal appellate courts over the issue of whether discrimination on the basis of sexual orientation or transgender status is forbidden by Title VII.

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Q: Does federal law protect Florida employees from discrimination on the basis of sexual orientation and transgender status?

A: Yes. The U.S. Eleventh Circuit Court of Appeals is the federal court with appellate jurisdiction over federal district courts in Alabama, Florida, and Georgia. Thus, the Eleventh Circuit establishes and enforces federal law for employees in Florida. However, the Eleventh Circuit is required to comply with the rulings of the U.S. Supreme Court on federal law. Under the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of federal law. Bostock is binding precedent in the Eleventh Circuit and must be followed by federal district courts in Alabama, Florida, and Georgia. Because federal district courts in Florida are required to comply with Bostock, Florida employees are protected by federal law from discrimination on the basis of sexual orientation or transgender status.

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Q: Does Florida law protect Florida employees from discrimination on the basis of sexual orientation and transgender status?

A: Yes. 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. In other words, if an employment practice is unlawful under Title VII, then the employment practice is also unlawful under the FCRA. Like Title VII, the FCRA protects employees from discrimination on the basis of sex. Because the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) that discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of Title VII, the Supreme Court’s ruling in Bostock means that discrimination against employees on the basis of sexual orientation or transgender status also constitutes unlawful discrimination on the basis of sex in violation of the FCRA. Thus, the FCRA protects Florida employees from discrimination on the basis of sexual orientation or transgender status.

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Q: Are Florida state courts required to comply with the U.S. Supreme Court’s decision in Bostock?

A: Yes. Florida state courts are bound by the decisions of the U.S. Supreme Court with respect to federal law. In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court held that discrimination against employees on the basis sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII of the Civil Rights Act of 1964 (Title VII). Because the Florida Civil Rights Act (FCRA) is given the same interpretation as Title VII, Florida state courts must rule that discrimination against employees on the basis of sexual orientation or transgender status is a form of sex discrimination forbidden by the FCRA. Thus, Florida state courts are not permitted to ignore the U.S. Supreme Court’s ruling in Bostock or otherwise refuse to apply Bostock’s holding that discrimination against employees on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination. Any decision by a Florida state court that does not adhere to the U.S. Supreme Court’s decision in Bostock would be subject to reversal by a higher court.

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Q: Prior to the U.S. Supreme Court’s decision in Bostock, did federal law protect Florida employees from sexual orientation discrimination?

A: No. Prior to its landmark decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court had not addressed the issue of whether discrimination against employees on the basis of sexual orientation constitutes unlawful sex discrimination in violation Title VII of the Civil Rights Act of 1964 (Title VII). Before the Supreme Court addressed the issue in Bostock, the question of whether Title VII protected Florida employees from discrimination on the basis of sexual orientation was controlled by the decisions of the U.S. Eleventh Circuit Court of Appeals. The Eleventh Circuit is the federal appellate court with jurisdiction over federal district courts in Alabama, Florida, and Georgia.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), the Eleventh Circuit ruled that Title VII does not prohibit discrimination against employees on the basis of sexual orientation. Until the Supreme Court’s landmark decision in Bostock, Evans was binding precedent in the Eleventh Circuit and had to be followed by federal district courts in Alabama, Florida, and Georgia. Under the Eleventh Circuit’s decision in Evans, Title VII did not protect Florida employees from discrimination on the basis of sexual orientation. Thus, because Eleventh Circuit law held that sexual orientation discrimination was not covered by Title VII’s protections against unlawful employment discrimination, Florida employees had no legal protection against sexual orientation discrimination under federal law.

In Bostock, the Supreme Court consolidated three federal appellate court cases for purposes of its appellate review. One of the cases before the Supreme Court was the Eleventh Circuit’s decision in Bostock v. Clayton County, Georgia, 723 Fed.Appx. 964 (11th Cir. 2018). In that case, Gerald Bostock (Bostock) worked for Clayton County, Georgia as a child welfare advocate. After a decade with the county, Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Bostock’s sexual orientation and participation in the league. Soon, Bostock was fired for conduct “unbecoming” a county employee. In upholding the trial court dismissal of Bostocks’s discriminatory discharge claim, the Eleventh Circuit reaffirmed its holding in Evans and ruled that Title VII does not prohibit employers from firing employees for being gay. On appeal, the Supreme Court reversed the Eleventh Circuit’s decision and reinstated Bostock’s discriminatory discharge claim.

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Q: Prior to the U.S. Supreme Court’s decision in Bostock, had any federal appellate courts ruled that federal law protects employees from sexual orientation discrimination?

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 squarely hold that discrimination against employees 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). The Seventh Circuit is the federal appellate court with appellate jurisdiction over federal district courts in Illinois, Indiana, and Wisconsin. Under the Seventh Circuit’s decision in Hively, Title VII protected employees who worked in Illinois, Indiana, or Wisconsin from sexual orientation discrimination.

In Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018), the U.S. Second Circuit Court of Appeals became the second federal appellate court to specifically hold that sexual orientation discrimination is covered under Title VII’s prohibition against sex discrimination. The Second Circuit is the federal appellate court with appellate jurisdiction over federal district courts in Connecticut, New York, and Vermont. Under the Second Circuit’s decision in Zarda, Title VII protected employees who worked in Connecticut, New York, or Vermont from sexual orientation discrimination.

In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court consolidated three federal appellate cases for purposes of its appellate review. One of the cases before the Supreme Court was the Second Circuit’s decision in Zarda. In that case, Donald Zarda (Zarda) worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Zarda mentioned that he was gay and, days later, was fired. On appeal, the Supreme Court affirmed the Second Circuit’s ruling that Title VII protected Zarda from discrimination on the basis of his sexual orientation.

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Q: Can an employer refuse to hire me because of my sexual orientation or transgender status?

A: No. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers are prohibited from failing or refusing to hire any individual on the basis of sex. In its landmark decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court ruled that discrimination on the basis of sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII. Because discrimination on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination under Title VII, it is unlawful for an employer to fail or refuse to hire any individual on the basis of sexual orientation or transgender status. Indeed, because the Bostock Court ruled that “an employer who fires an individual for merely being gay or transgender defies the law,” an employer who fails or refuses to hire an individual for merely being gay or transgender “defies the law.”

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Q: Can an employer fire me or otherwise discriminate against me because of my sexual orientation or transgender status?

A: No. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sex in all aspects of employment, including hiring, pay, training, demotion, promotion, job assignments, discipline, layoff, and termination. Because discrimination on the basis of sexual orientation or transgender status is a form of sex discrimination prohibited by Title VII, employers are forbidden from discriminating against employees on the basis of sexual orientation or transgender status in all aspects of employment. Thus, it is unlawful for an employer to terminate or otherwise discriminate against an employee on the basis of sexual orientation or transgender status. Indeed, the U.S. Supreme Court stated in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) that “an employer who fires an individual merely for being gay or transgender defies the law.”

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Q: Am I protected from harassment on the basis of sexual orientation or transgender status?

A: Yes. Harassment on the basis of sex, including sexual harassment, is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Because the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) that discrimination on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination in violation of Title VII, harassment on the basis of sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII. When an employee is harassed on the basis of sexual orientation or transgender status, and the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment, the harassment is a form of unlawful sex discrimination in violation of Title VII.

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Q: Am I protected from retaliation for complaining about discrimination on the basis of sexual orientation or transgender status?

A: Yes. Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from retaliation when they complain about perceived sex discrimination in the workplace. Because the U.S. Supreme Court held in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) that discrimination on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination in violation of Title VII, employees are protected from retaliation when they complain about perceived discrimination on the basis of sexual orientation or transgender status. Thus, if an employee believes that he or she has been discriminated against on the basis of sexual orientation or transgender status, an employer cannot retaliate against the employee for complaining about the perceived discrimination. If an employer subjects an employee to an adverse employment action, such as demotion, reduction in hours, or termination, in retaliation for lodging a complaint of discrimination on the basis of sexual orientation or transgender status, the employer has unlawfully retaliated against the employee in violation of Title VII.

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Q: Am I protected from retaliation for complaining about harassment on the basis of sexual orientation or transgender status?

A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from retaliation when they complain about perceived sex discrimination in the workplace, including perceived sexually harassing behavior in the workplace. Because the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) that discrimination on the basis of sexual orientation or transgender status is a form of unlawful sex discrimination in violation of Title VII, Title VII also protects employees from retaliation when they complain about perceived harassment on the basis of sexual orientation or transgender status. Thus, if an employee believes that he or she is being harassed on the basis of sexual orientation or transgender status, an employer cannot retaliate against the employee for complaining about the perceived harassment. If an employee is subjected to an adverse employment action, such as demotion, reduction in pay, or discharge, in retaliation for lodging a complaint about harassment on the basis of sexual orientation or transgender status, the employee has been unlawfully retaliated against in violation of Title VII.

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Q: Does federal law protect employees from discrimination on the basis of transitioning status?

A: Yes. In E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir. 2018), the U.S. Sixth Circuit Court of Appeals became the first federal appellate court to specifically 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, discrimination on the basis of transgender and transitioning status is covered by Title VII’s protections against unlawful employment discrimination. 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 in the gender or sex stereotyping theory of sex discrimination.

In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court consolidated three federal appellate cases for purposes of its appellate review. One of the cases before the Supreme Court was the Sixth Circuit’s decision in Harris Funeral Homes. In that case, Amiee Stephens (Stephens) worked at Harris Funeral Homes in Garden City, Michigan. When she got the job, Stephens presented as a male. In her sixth year with the company, Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired Stephens before she left, telling her “this is not going to work out.” On appeal, the Supreme Court affirmed the Sixth Circuit’s ruling that Stephens was protected by Title VII from discrimination on the basis of her transgender status.

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Q: Can gay and lesbian employees be discriminated against because of their perceived failure to conform to gender or sex stereotypes?

A: No. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers are forbidden from discriminating against gay and lesbian employees on the basis of their alleged failure to conform to gender or sex stereotypes. This theory of sex discrimination is known as a “gender stereotyping” or “sex stereotyping” claim. For example, a gay male employee is discriminated against because he purportedly does not comply with societal stereotypes of how men should act, appear, or behave. Likewise, a lesbian employee is discriminated against because she purportedly does not comply with societal stereotypes of how women should act, appear, or behave.

Even before the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), federal courts had consistently ruled that Title VII condemns gender or sex stereotyping discrimination and consistently upheld Title VII claims based on the gender or sex stereotyping theory of sex discrimination. 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 unlawfully discriminated against on the basis of sex in violation of Title VII. 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 by Title VII.”

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

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 perceived failure to conform to gender or sex stereotypes, the employee has been unlawfully 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 show how an employee is discriminated against for perceived 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,” “overcompensated for being a woman,” “a lady using foul language,” and someone who had been a “tough-talking somewhat masculine hard-nosed manager.” Hopkins was told that she could improve her chances for partnership if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The U.S. Supreme Court ruled 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 of how women ought to act, appear, or behave.

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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 environment sex-based harassment under Title VII.

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

A: Yes. There are many cases. On case is Anonymous v. Omnicom Group, Inc., 852 f.3d 195 (2d Cir. 2017) (previously captioned Christiansen v. Omnicom Group, Inc.). In that case, the employee, an openly gay man, 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 the employee’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: Yes. There are many cases. One case is Heller v. Columbia Edgewater County 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 discriminatory harassment to establish that she worked in a hostile environment. The decision in Heller demonstrates that a lesbian can ground a hostile work environment 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: Are gay and lesbian employees protected from retaliation when they complain about discrimination based on their perceived failure to conform to gender or sex stereotypes?

A: Yes. When a gay or lesbian employee complains that he or she has been discriminated against because of a perceived failure to conform to gender or sex stereotypes, the employee is making a complaint of gender or sex discrimination. Under Title VII of the Civil Rights Act of 1964, employees are protected from retaliation when they complain about perceived gender or sex discrimination in the workplace.

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