DEFENDING FLORIDA EMPLOYERS: RECENT SUPREME COURT PRECEDENT PROHIBITING DISCRIMINATION AGAINST LGBT PERSONS

The recent United States Supreme Court case, Bostock v. Clayton County, Georgia, 17-1618, 2020 WL 3146686 (U.S. June 15, 2020), held that lesbian, gay, bisexual, and transgender (LGBT) employees are protected by Title VII of the Civil Rights Act of 1964 (Title VII). While the holding may be considered groundbreaking by some LGBT advocates, the case does not represent a fundamental change in law from the perspective of Florida employers. Florida employers that can show that they have legitimate non-discriminatory reasons for their employment decisions can successfully defeat claims of workplace discrimination regardless as to whether the claimed protected class is race, sex, or any other protected class. Peter Mavrick is a Fort Lauderdale employment attorney who defends businesses and their owners against labor and employment lawsuits, including lawsuits claiming retaliation and discrimination and wages in federal and Florida state courts and charges of discrimination with the EEOC, Florida Commission on Human Relations, and city and county agencies.

Title VII makes it unlawful for employers of 15 or more employees “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court’s Bostock decision interpreted the meaning of the statutory term “sex” in the federal anti-discrimination statute.

Before Bostock, federal appellate courts disagreed as to the statutory meaning of “discrimination on the basis of sex” as this wording is used in the Title VII statute. LGBT employees, like all other employees of a business employing at least 15 employees, have always been protected from discrimination on the basis of their sex. However, it was not always clear what types of discriminatory actions qualified as “discrimination on the basis of sex” as opposed to discrimination on the basis of someone being homosexual or transgender. The United States Court of Appeals for the Eleventh Circuit Court had previously held in Evans Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), that an employee who claimed she was discriminated against because she was a homosexual did not state a claim of sex discrimination under Title VII. Evans held that homosexuals are not a protected class under Title VII. Evans suggested that, had the plaintiff argued that the very same conduct was caused because of her non-conformity with gender-stereotypes, then it may have been unlawful, based on important Supreme Court precedent in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court’s Price Waterhouse decision held that discrimination based on gender stereotyping is unlawful because it constitutes discrimination “on the basis of sex.” The underlying facts in the Price Waterhouse case involved a female executive who was passed over for a promotion explicitly because she was not “feminine” enough. The implication of Evans could yield an absurdity: plaintiffs could claim to be protected under Title VII as long as they presented their complaint of sex discrimination based on gender stereotyping rather than because being homosexual, even though the core issue consisted of discrimination based on being homosexual.

Bostock interpreted Title VII to eliminate this procedural and interpretative concern. Bostock held that:

From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ‘s sex contributed to the decision […]. [I]f changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred […]. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

Bostock does not extend protection under Title VII to LGBT people as a new class of protected persons; instead, Bostock simply found that LGBT people do not lose protection under Title VII for sex-based discrimination simply because of the additional attribute that they happened to be LGBT. This is in line with previous federal court decisions holding that employees do not lose protection from sex discrimination based upon other attributes, such as being a mother. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (holding that discriminating against only women who are parents is still discriminating against women, regardless of the additional trait of motherhood).

Bostock also suggested the possibility of a limited exception to Title VII for religious organizations to lawfully discriminate on the basis of sex for LGBT people in employment. 42 U.S.C.A. § 2000e-1(a) (“[Title VII] shall not apply to an employer with respect […] to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”). Additionally, Bostock recognized that the holding may be limited by the Religious Freedom Restoration Act of 1993, potentially allowing religious persons the opportunity to lawfully discriminate against LGBT persons. 42 U.S.C.A. § 2000bb-1(a), (b) (“Government shall not substantially burden a person’s exercise of religion […] [unless it] is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest”).

Peter Mavrick is a Fort Lauderdale employment lawyer who defends businesses in employment litigation. This article does not serve as a substitute for legal advice tailored to a particular situation.