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53 Years After Title VII, Stil...

53 Years After Title VII, Still No Clear Answer on Sexual Orientation

Title VII of the Civil Rights Act of 1964, makes it illegal for an employer 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.” However, the question of whether Title VII’s protection against discrimination in the workplace extends to sexual orientation has arisen. This issue has been addressed for several years in different forums, but it has come to the forefront of the mainstream media as the Department of Justice (DOJ) has recently weighed in on the issue. In a brief filed in the case of a skydiving instructor who alleged that his premature termination was related to his sexual orientation, the DOJ argued that Title VII does not and should not provide protection against discrimination based on sexual orientation.

The U.S. Equal Employment Opportunity Commission (EEOC), the organization responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, has taken the position that discrimination based on sexual orientation is prohibited under Title VII. Despite the EEOC’s guidance, the answer to the question of whether Title VII applies is not clear-cut. This issue has been litigated in multiple courts, with different results, that have resulted in a split of the judicial circuits. For example, the Seventh Circuit Court of Appeals has held that Title VII recognizes claims based on sexual orientation discrimination, while the Second and Eleventh Judicial Circuits have held that Title VII did not apply to discrimination based on sexual orientation. Accordingly, the determination of the applicability of Title VII to sexual orientation depends on what part of the country, and within which judicial circuit an individual lives. This judicial split will likely lead to a case being brought before the U.S. Supreme Court to provide a definitive ruling which will unify the courts one way or another.

Florida falls within the Eleventh Judicial Circuit, so at the moment, the binding law is that Title VII does not protect against discrimination based on sexual orientation. The Florida Civil Rights Act (FCRA), the purpose of which is “to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state,” is the state law equivalent to Title VII. Like Title VII courts have held that the FCRA does not apply to sexual orientation. However, even though Title VII and the FCRA may not apply to discrimination based on sexual orientation there are some legal protections available. Many counties and cities within the state have enacted laws which recognize sexual orientation as a protected class and provide protection against workplace discrimination.

If you are in the Broward, Palm Beach or Miami-Dade Counties and feel that you have been discriminated against at work for any reason, the Law Office of Brandon J. Gibson, PLLC is here to help. Contact us today to schedule a consultation. We will hear the details of your claim, determine what options you have under applicable laws, and help you pursue your case.



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