Joan M. Vecchioli, Colleen M. Flynn, and Rachael L. Wood
Johnson Pope Labor & Employment Attorneys
On June 15, 2020, the United States Supreme Court issued its landmark ruling in Bostock v. Clayton County, holding that “An employer who fires an individual merely for being gay or transgender violates Title VII”. This ruling clarifies years of mismatched and confusing case law as to when a gay or transgender individual would be protected under the Title VII of the Civil Rights Act of 1964 (“Title VII”), and provides employers with a clear standard – discrimination based upon sexual orientation and identification as transgender is prohibited.
The Supreme Court also explained that for discrimination to exist, the adverse employment action, such as failure to hire, failure to promote, demotion, or termination, need not be the sole or primary cause. Rather, the “but for” standard applies. This means that discrimination can be found “whenever a particular outcome would not have happened ‘but for’ the purported cause”. In this Opinion, the purported causes are sexual orientation and transgender identification. The Opinion, however, does not offer guidance on whether sex-segregated bathrooms, locker rooms, and dress codes will violate Title VII or other laws, explaining that “[t]he only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual because of such individual’s sex. The answer to that question is yes.”
As a reminder, employers with fifteen (15) or more employees must comply with the requirements of Title VII which prohibits discrimination based on race, color, national origin, religion and sex (including pregnancy). Employers in Florida with fifteen (15) or more employees must also comply with the Florida Civil Rights Act of 1992 (“FCRA”) which prohibits discrimination based on race, color, religion, gender, pregnancy, national origin, age, handicap, or marital status. Because the FCRA is modelled after Title VII, sexual orientation and gender identity should now be recognized as protected statuses under the FCRA as well. Finally, employers should be mindful of local ordinances that either explicitly protect sexual orientation and gender identity or are modelled after Title VII. For example in Pinellas County, Chapter 70 of the Pinellas County Code of Ordinances applies to employers with five (5) or more employees and makes it unlawful for an employer to discriminate in employment based upon race, color, religion, sex (including pregnancy discrimination and sexual harassment), sexual orientation, national origin, age, marital status, or disability.
Because this Opinion provides broad protection to gay and transgender individuals in the employment context, it is essential that employers review their anti-discrimination policies and training to ensure a work environment that is consistent with this Opinion. Employers may be liable for back pay, front pay, compensatory damages, punitive damages, and attorney’s fees and costs in a successful claim alleging violation of Title VII.
Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is an associate in the Clearwater office whose practice focuses on Labor and Employment Law.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.