by Kelly M. Peña
In 2015, the U.S. Supreme Court’s landmark decision in Obergfell v. Hodges, 135 S. Ct. 2584 (2015), focused the national conversation on the legal rights and protections of LGBT individuals when it held that states could no longer deny same-sex couples the right to marry under the same terms afforded to opposite-sex couples. The decision, which did not focus on employment law, was seen by some as an incredible victory for the LGBT community, while others felt strongly morally opposed to the concept of same-sex marriage. Apart from the broader social and moral discussions in the nation, regulators and the legal community began examining the decision’s impact on other areas of law, to include employment law. Building on the new case, the Equal Employment Opportunity Commission (EEOC) issued a separate decision, taking the position that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.1 Up to this point, the courts did not generally interpret Title VII’s prohibition on sex discrimination to cover sexual orientation. After the EEOC’s new interpretation, many predicted that the federal and state courts would begin following suit.
In spite of this prediction, post Obergfell courts and agency decisions on the question have been all over the map. Some have construed Title VII to cover sexual orientation discrimination, while others have taken the position that such conduct, no matter how wrong it might be from a policy perspective, is not presently covered under this law, and that any expansion of Title VII’s scope could only be accomplished by Congress. Cases of gender identity discrimination, likewise, face an uncertain future. While the next few months will be telling, not only for federal cases, but also for cases filed under the Florida Civil Rights Act patterned after Title VII, this article attempts to review the history and likely direction the law will go in this important policy debate.
Background of Title VII and Sex Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin.2 This law only applies to employers that have “ or more employees for each working day in each of  or more calendar weeks in the current or preceding calendar year.”3 Although seemingly uncomplicated, the very definition of the word “sex” has been heavily litigated since this statute’s enactment.
Throughout the years, Congress has amended Title VII and expanded its scope. For example, in 1972, the prohibited conduct was extended to state and local government employers.4 These legislative amendments were often the result of a push and pull between Congress and the courts. In 1976, the U.S. Supreme Court ruled that discrimination on the basis of pregnancy was not sex discrimination under Title VII.5 Congress responded by enacting the Pregnancy Discrimination Act of 1978 two years later, effectively overturning this decision.6
Apart from the various congressional amendments, what qualifies as “sex discrimination” has also been expanded by the courts via statutory construction of the act. In 1986, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court held that sexual harassment is a form of prohibited sex discrimination under Title VII. Three years later, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that gender stereotyping qualifies as yet another form of sex discrimination prohibited by Title VII. The Court reasoned that sex discrimination under Title VII prohibits discriminatory conduct carried out because of sex, meaning the employer relied upon “sex-based considerations” when coming to its decision.7
In 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the U.S. Supreme Court held that sexual harassment between members of the same sex was also cognizable. The Court reasoned that sex discrimination under Title VII is not limited to conduct between members of the opposite sex.”8 Although “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII… statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils….”9
Despite what the voting members of Congress may have initially contemplated, Title VII’s “sex discrimination” now encompasses a broader range of issues than the traditional tribulations experienced by women in a male-dominated workplace. As set forth in Price Waterhouse and Oncale, Title VII prohibits an employer from taking sex into account or relying upon “sex-based considerations” when making decisions that impact an employee or prospective employee.10 Using this rationale, many have reasoned that it should also cover sexual orientation and gender identity.
In the last five years, the EEOC has been particularly vocal in its position that Title VII covers LGBT-related discrimination and that it will seek to enforce and apply the law accordingly. In 2012, the EEOC adopted a Strategic Enforcement Plan to include “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a “top [c]ommission enforcement priority.”11 Since this time, the EEOC has filed numerous lawsuits and amicus curiae briefs addressing a variety of LGBT discrimination claims in numerous jurisdictions, including the 11th Circuit.12
But the EEOC was not the only agency to take such a strong position on this issue. In December 2014, former Attorney General Eric Holder issued guidance on behalf of the Department of Justice (DOJ) consistent with the EEOC; namely, that Title VII should be far more encompassing, taking into account other sex-based considerations.13 Following suit, the Department of Labor released its final rule in 2014, barring federal contractors from discriminating on the basis of sexual orientation and gender identity, implementing an amendment to Executive Order 11, 246.
A New Administration Ushers in a New Perspective
As is invariably the case, a new regime brings new perspectives to the table, and the Trump administration is no exception to this rule. The new administration’s various departures from the Obama administration, including the DOJ’s new position on Title VII receding from Obama-era policy, is just one example.
On July 26, 2017, the DOJ submitted an amicus brief in a case before the Second Circuit Court of Appeals, asserting that Title VII’s prohibitions on sex discrimination do not include discrimination because of sexual orientation, and that the law only covers discrimination between men and women.14 The DOJ reasoned that Congress is responsible for expanding the scope of the law, not the courts.15 Further, the DOJ reasoned that Congress had many opportunities to amend the provisions concerning sex discrimination over the past few decades, and although it had chosen to amend the law to include pregnancy, it has refrained from including any form of LGBT-related discrimination.16
On October 4, 2017, the DOJ took its position a step further, issuing a memorandum concluding that Title VII’s prohibition on sex discrimination did not cover transgender employees.17 The DOJ reasoned that Title VII does not explicitly refer to gender identity, and that it is required to construe the law in accordance with what Congress initially intended: “The sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited….”18 Widespread media attention followed, as equal rights advocates called out Attorney General Jeff Sessions for his departure from the earlier guidance issued under the Obama administration.19
Despite the DOJ’s recent announcements, the EEOC has remained steadfast in its position. Thus, there are now two federal agencies directly at odds with one another in their interpretation of Title VII’s scope. To complicate matters, the federal circuit courts are now split on this issue, prompting speculation as to when this topic will finally make its way to the U.S. Supreme Court, how it will be decided by the justices currently sitting on the Court, and whether retirement or death of one or more of the longer serving justices would change a projected outcome.
The Split Among the Federal Circuits
The U.S. Supreme Court has never explicitly addressed sexual orientation discrimination, but it may do so in the near future. The lower courts have historically held that sexual orientation discrimination is not actionable under Title VII.20 Aside from one decision in the Northern District of Florida,21 all recent Florida U.S. District Court decisions have likewise taken this position.22
On March 10, 2017, this issue finally made its way to the 11th Circuit in Evans v. Georgia Regional Hospital, 850 F.3d 1248, 1254 (11th Cir. 2017), which held that discrimination based on sexual orientation was not actionable under Title VII. The court stated that it was precluded from ruling otherwise given the binding precedent established under Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), that “[d]ischarge for homosexuality is not prohibited by Title VII….” Instead, this precedent would have to either be “overruled by this court en banc or by the Supreme Court.”23 Following denial of a request for en banc hearing in July, Evans filed a petition for a writ of certiorari with the U.S. Supreme Court on September 7, 2017.24
The following month, in Zarda v. Altitude Express, 855 F.3d 76, 82 (2d Cir. 2017), the Second Circuit also held that binding precedent25 could only be overturned by the entire court sitting en banc. A rehearing en banc was granted on May 25, 2017, resulting in opposing amicus briefs from the EEOC and the DOJ, among others.26 Oral argument was presented in September 2017.
While the outcome of Evans and Zarda in the Second and 11th circuits have yet to be decided, the Seventh Circuit has already made up its mind on the issue in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 345 (7th Cir. 2017). On April 4, 2017, after a rehearing en banc, the Seventh Circuit ruled that sexual orientation discrimination is unlawful under Title VII, reasoning that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner…is a reason purely and simply based on sex.”27 This is the first time a federal appellate court has drawn such a conclusion.
The Seventh Circuit provided a multi-factored explanation for its holding. First, it reasoned that the scope of Title VII has expanded over the years to reflect progress and more modern notions of inclusiveness: “The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.”28 Second, the court reasoned that sexual orientation discrimination is based on sex because if the aggrieved female employee had been a man and all other variables remained the same (i.e., that the employee was in a relationship with or married to a woman) she would not have been disadvantaged.29 Third, the court agreed that such discrimination constitutes a gender nonconformity claim because “heterosexuality is the norm and other forms of sexuality [are] exceptional.”30
Finally, the Seventh Circuit relied upon the associational sex discrimination theory, holding that anti-gay bias ultimately qualifies as sex discrimination just as anti-miscegenation laws (i.e., criminalizing interracial marriage) constitute race discrimination.31 That is, when a person of one race is prohibited from marrying a person of a different race, such prohibition constitutes discrimination because of race. Consequently, any action taken against a person for associating with someone who shares his or her sex constitutes discrimination “because of sex.”32
Within the next year, employment lawyers should begin to gain more clarity on whether the Seventh Circuit’s view will carry the day.
A Florida-Specific Look
The Florida Civil Rights Act of 1992 (FCRA) was patterned after Title VII and likewise prohibits employment discrimination on the basis of sex.33 “Sex” is not explicitly defined under the statute, however, and its meaning is left, in large part, to judicial interpretation.
In the last few years, there has been a push and pull between Florida’s legislature and courts in their respective interpretations of sex discrimination under the FCRA. As is the case with Title VII, Florida courts have often interpreted discrimination “because of…sex” to cover a broad range of issues.
In Delva v. Continental Group, Inc., 137 So. 3d 371 (Fla. 2014), for example, the Florida Supreme Court ruled for the first time that pregnancy discrimination constitutes sex discrimination under the FCRA. The Florida Supreme Court stated that its conclusion was consistent with the legislative intent of the FCRA, which shall be “liberally construed” to further its purpose “to secure for all individuals within the state freedom from discrimination because of…sex.”34 The following year, the Florida Legislature amended the FCRA to expressly include pregnancy as a protected class.35
In February 2017, Senate Bill 666 and House Bill 623 were both introduced for consideration at Florida’s 2017 Legislative Session.36 These bills each set out to prohibit discrimination based on sexual orientation and gender identity or expression and to amend the FCRA to reflect these protections.37 However, both bills were indefinitely postponed and withdrawn from consideration on May 5, 2017.38 Thus, despite the various expansions to the FCRA’s coverage in recent years, it still does not cover sexual orientation or gender identity.
Florida’s courts generally (but not always) construe the FCRA’s protections in accordance with the federal court system’s interpretation of Title VII.39 Thus, the outcomes of Evans and Zarda have the potential to impact how the FCRA is interpreted and applied, regardless of any legislative action.40
Since the FCRA does not presently cover sexual orientation or gender identity, employees in this state must look elsewhere for protection.41 Presently, there are 11 counties42 and 34 municipalities43 within Florida that prohibit discrimination based on both sexual orientation and gender identity. A few additional cities and counties maintain these prohibitions, but only for public-sector employees.44 Finally, there are a few cities and counties in Florida that prohibit discrimination on the basis of sexual orientation, but do not cover gender identity.45
When raising claims locally, Florida employees must take care to adhere to all local procedural rules and ensure they are complying with the requirements set forth under the relevant governing ordinance. Each county and municipality varies considerably. For example, Palm Beach County’s Equal Opportunity Ordinance requires an employee to submit a complaint within 180 days of any alleged discriminatory act, whereas Broward County’s Human Rights Section allows for an employee to submit a complaint within a year.46
Some ordinances also set specific limitations as to when and under what circumstances a civil action may be filed.47 For example, Palm Beach County only allows for an employee to commence a civil action if Palm Beach County’s Office of Equal Opportunity issues a determination of reasonable cause, and only if such lawsuit is filed within a year of such finding.48 Under other ordinances, such as Broward County’s Human Rights Section, employees may be able to proceed with a civil lawsuit so long as the administrative charge has been dismissed by the county.49
An employee also must confirm that the subject employer is covered by the governing ordinance. For example, the Alachua County Human Rights Ordinance only has jurisdiction over employers that have at least five employees.50 Similarly, Broward County’s Human Rights Ordinance only covers employers with “five…or more employees for each working day in each of  or more calendar weeks in the current or preceding calendar year.”51 Monroe County is more restrictive, only covering employees with at least 15 employees.52
The current state of the law is unquestionably in flux. However, there are a few things we know for certain. First, the national trend in the last decade generally points to greater protections for the LGBT community, including a host of state laws enacted to prevent employment discrimination on the basis of gender identity and sexual orientation. Although Florida does not presently have a law on the books, there are 22 other states that do.53 The number of Florida counties and municipalities that have expanded the scope of their civil rights protections in recent years is consistent with this trend.
Further, many employers, on their own initiative, have sought to prohibit discrimination based on gender identity and sexual orientation within the workplace, by updating their employment policies and initiating relevant workplace trainings. Several prominent businesses have recently taken this a step further by actively advocating for greater workplace protections, filing motions for leave to file amici briefs in Evans.54 Among others things, they assert that excluding sexual orientation from Title VII’s protections is harmful to businesses and undermines efforts to create an inclusive work environment.55
Citing various court decisions, legislative hearings, and independent research, these businesses assert that LGBT discrimination remains pervasive throughout the United States, compromising the ability for many to lead successful careers.56 In one cited study, gay, lesbian, and bisexual respondents reported experiencing mistreatment in alarming numbers, and that they felt discouraged from being open about their sexual orientation in the workplace.57 The amici posited that their employees are essential to their overall success, and their employees’ fate — largely dependent on the state in which they live — directly impacts the fate of the businesses. By failing to recognize LGBT employees, the law was serving to uphold and enforce social stigma, resulting in various negative consequences for their employees’ health and productivity:58 “Fear of discrimination has also been shown to exact a significant toll on employees — manifesting in, inter alia, negative attitudes toward one’s career; increased stress; difficulty trusting coworkers and superiors; and experiences of isolation, frustration, anxiety, depression, and low self-esteem.”59
In sum, regardless of the outcome of Evans and Zarda, this author believes the long-term trend suggests that whether the statutes are amended or expanded via judicial interpretation, employers and employees will both continue working to prohibit LGBT discrimination in the workplace, and counsel for businesses and employee organizations should look toward helping their clients get ahead of this curve both to avoid new lawsuits but also to ensure employee morale and customer loyalty are enhanced.
1 See Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015).
2 See 42 U.S.C. §2000e-2.
3 See 42 U.S.C. §2000e(b).
5 General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).
6 See 42 U.S.C. §2000e(k).
7 Price Waterhouse, 490 U.S. at 241-42.
8 Oncale, 523 U.S. at 78-79 (emphasis added).
9 Id. at 79.
10 Price Waterhouse, 490 U.S. at 242; Oncale, 523 U.S. at 79.
11 U.S. Equal Employment Opportunity Commission, Fact Sheet: Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination, https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.
13 See Memorandum issued by the Office of the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014).
14 Brief for the United States as Amicus Curiae, No. 15-3755, 2017 WL 3277292, at *6 (July 26, 2017).
15 Id. at *2.
16 Id. at *3.
17 See Memorandum issued by the Office of the Attorney General, Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017).
18 Id. at 1.
19 See, e.g., Laura Jarrett, Sessions Says Civil Rights Law Doesn’t Protect Transgender Workers, CNN (Oct. 5, 2017), available at http://www.cnn.com/2017/10/05/politics/jeff-sessions-transgender-title-vii/index.html.
20 See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (“Title VII does not afford a cause of action for discrimination based upon sexual orientation....”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.”).
21 Winstead v. Lafayette Cnty. Bd. of Cnty. Commissioners, 197 F. Supp. 3d 1334, 1346 (N.D. Fla. 2016) (holding that disparate treatment of employee based on her sexual orientation was, in essence, gender stereotype discrimination: “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex.”).
22 See, e.g., Luna v. Bridgevine, Inc., No. 15-22859-CIV-COOKE/TORRES, 2016 WL 128460 (S.D. Fla. Jan. 12, 2016) (“Plaintiff may not assert a claim for discrimination under Title VII based upon sexual orientation because courts have consistently found that Title VII does not apply to discrimination claims based on sexual orientation.”); Espinosa v. Burger King Corp., No. 11-62503-CIV-COHN, 2012 WL 4344323, at *5 (S.D. Fla. Sept. 21, 2012) (granting summary judgment in the employer’s favor, holding same).
23 Blum, 597 F.2d at 938, citing Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).
24 Evans v. Georgia Regional Hosp., No. 17-370 (Sept. 11, 2017).
25 Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (holding that Title VII does not prohibit discrimination based on sexual orientation).
26 See, e.g., En Banc Brief of Amicus Curiae Equal Employment Opportunity Commission in Support of Plaintiffs/Appellants in Favor of Reversal, No. 15-3755, 2017 WL 2730281 (June 23, 2017); Brief for the United States as Amicus Curiae, No. 15-3755, 2017 WL 3277292 (July 26, 2017).
27 Hively, 853 F.3d at 345.
28 Id. at 344.
29 Id. at 345-346.
30 Id. at 346.
31 Id. (citing Loving v. Virginia, 388 U.S. 1 (1967)).
33 Fla. Stat. §§760.01, et seq.
34 Delva, 137 So. 3d at 371 (emphasis added) (citing Fla. Stat. §760.10(2)-(3)).
35 Fla. Stat. §760.10.
36 See HB 2623: Prohibited Discrimination and SB 666: Prohibited Discrimination, available at https://www.flsenate.gov/Session/Bill/2017/00623/?Tab=BillHistory; https://www.flsenate.gov/Session/Bill/2017/00666.
39 See, e.g., Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Ranger Ins. Co. v. Bal Harbour Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989).
41 Although, it should be noted that Florida has addressed other issues impacting the LGBT community in recent years, such as adoption for same-sex couples. Florida Dept. of Children and Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010) (holding that state statute categorically banning same-sex couples from adopting children violated the equal protection clause of the Florida Constitution).
42 Alachua, Broward, Hillsborough, Leon, Miami-Dade, Monroe, Orange, Osceola, Palm Beach, Pinellas, and Volusia counties.
43 Atlantic Beach, Boynton Beach, Delray Beach, Dunedin, Gainesville, Greenacres, Gulfport, Haverhill, Jacksonville, Key West, Lake Clarke Shores, Lake Worth, Largo, Leesburg, Mascotte, Miami, Miami Beach, Mount Dora, Neptune Beach, North Port, Oakland Park, Orlando, Pembroke Pines, Sarasota, St. Augustine Beach, St. Petersburg, Tallahassee, Tampa, Tequesta, Venice, West Palm Beach, Wellington, and Wilton Manors.
44 Sarasota County, Cape Coral, Miami Shores, and Port St. Lucie.
45 Hypoluxo, Juno Beach, Jupiter, Palm Beach Gardens, Royal Palm Beach, Coral Gables, Ft. Lauderdale, and Hialeah.
46 See Palm Beach County’s Equal Employment Opportunity Ordinance §2-2301; Ord. No. 2011-14, §1, 8-16-11.
47 See §2-311(a).
49 Ord. No. 2011-14, §1, 8-16-11.
50 See Alachua County Ordinance §2013-10.
51 Ord. No. 2011-14, §1, 8-16-11.
52 Monroe County Ordinance §14-40.
53 See Cal. Govt. Code §12940; Colo. Rev. Stat. §24-34-402; Conn. Gen. Stat. §46a-81c; Del. Code Ann. Tit. 19, §711; Haw. Rev. Stat. §378-2; 775 Ill. Comp. Stat. Ann. 5/1-102; Iowa Code §216.6; Me. Rev. Stat Ann. Tit. 5, §4571; Md. Code Ann., State Govt. §20-606; Mass. Gen. Laws Ch. 151B, §4; Minn. Stat. §363A.08; Nev. Rev. Stat. §613.330; N.H. Rev. Stat. Ann. §354-A:7; N.J. Stat. Ann. §§10:5-4, 10:5-12; N.M. Stat. Ann. §28-1-7; N.Y. Exec. Law §296; Or. Rev. Stat. §659A.030; R.I. Gen. Laws §28-5-7; Utah Code Ann. §34A-5-106; Vt. Stat. Ann. Tit. 21, §495; Wash. Rev. Code §§49.60.030, 49.60.180; Wis. Stat. §111.36.
54 See Evans v. Georgia Regional Hospital, No. 17-370, Motion for Leave to File Amici Brief Filed by 76 Businesses and Organizations (Oct. 10, 2017).
56 Id. at 8.
57 Id. at 8-9 (citing Brad Sears & Christy Mallory, Documented Evidence of Employment Discrimination & Its Effects on LGBT People, The Williams Institute 4 (July 2011)); 112th Cong. 8-10, Equality at Work: The Employment Non-Discrimination Act: Examining Equality at Work, Including S. 811, To Prohibit Employment Discrimination on the Basis of Sexual Orientation or Gender Identity Before S. Comm. on Health, Educ., Labor, and Pensions (June 2012).
58 Id. at 11.
59 Id. at 10.
Kelly M. Peña is an attorney in the Miami office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Her practice focuses primarily on employment law. Peña represents management in administrative proceedings as well as in litigation. She received her law degree from the Northeastern University School of Law.
This column is submitted on behalf of the Labor and Employment Law Section, Zascha Blanco Abbott, chair, and Robert Eschenfelder, editor.