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Any employee claiming illegal sex discrimination must show that an employer took an adverse employment action, such as hiring, firing, promoting, or discipling an employee, and that action was motivated by the sex of the employee.  Avoiding sex discrimination claims is complicated by the fact that the definition of “sex” as it is understood in Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act has steadily changed since its inception more than 50 years ago. The Supreme Court is expected to reinterpret the law as it pertains to applicability of antidiscrimination laws to LGBT employees, which may retroactively affect controversies involving LGBT employees. Peter Mavrick is a Miami employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

The rules governing sex discrimination are based upon the interpretation of civil rights employment law at the time that a case is pending.  This determination by a court often happens years after the alleged conduct that forming the basis of the claim. This means that it is impossible for a Florida employer to definitively know the rules that apply for its employees at any given time, because the rules that govern Florida employers, today, are governed by the law as it will be interpreted in the future.  Florida employers would be wise to be careful and avoid taking an action that could become illegal in the future, particularly in areas of law which are still developing, such as civil rights employment law concerning gay, lesbian, and transgender employees.

When Title VII of the Civil Rights Act was enacted in 1964, the law was generally interpreted so that discrimination on the basis of sex meant that employers must not bar women from applying – a common practice at the time.  Courts have steadily expanded that definition.  For example, in 1986, the Supreme Court affirmed that sexual harassment was illegal sex discrimination in Meritor Savings Bank v. Vinson, 477 US 57 (1986).  Until the decision in Meritor it had been an open question as to whether an employee could even sue for sexual harassment for almost a decade.  In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), when a female executive was denied a promotion because she was allegedly not feminine enough.  The Supreme Court found that this sort of conduct was in reality sex-based discrimination because discrimination based on stereotypes about what a man or a woman should be was, in reality, discrimination on the basis of sex.

From the perspective of employers, the Meritor and Price Waterhouse decisions retroactively changed the law. By reinterpreting what is discrimination on the basis of sex, the Supreme Court essentially changed what was required of employers for conduct that happened before those decisions.  This sort of reinterpretation could happen again soon concerning LGBT employees.  The Supreme Court is expected to issue decisions concerning whether Title VII of the Civil Rights Act applies to transgender employees in R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., 139 S. Ct. 1599 (2019), or to homosexual employees in Altitude Exp., Inc. v. Zarda, 139 S. Ct. 1599 (2019).

The Eleventh Circuit Court of Appeals, which is the federal appellate court governing the State of Florida, has ruled that discrimination based on sexual orientation is not prohibited under Title VII.  In Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), the plaintiff employee claimed that she was harassed and battered in her position as a security guard at a hospital because she was a gay woman with a masculine gender presentation.  The Court found that she could not make a claim under Title VII of the Civil Rights Act if she was harassed only because of her sexuality and affirmed that “[d]ischarge for homosexuality is not prohibited by Title VII.”  Id., quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).

The upcoming Supreme Court decisions in Etsitty and Altitude might change the law that applies to Florida employers. There will always be some degree of uncertainty as to how antidiscrimination laws will later be interpreted.  Florida employers need not necessarily stay abreast of the latest trends or changes in employment law in order to manage their risk.  Instead, Florida employers can avoid allegations of nearly any kind of discrimination by ensuring that employment decisions are based on the employee’s objective performance, and that these decisions are properly documented to show that the decision was based on these objective measures.  The more objective and measurable this performance evaluation is, the better.  A well-documented history of poor performance is usually a strong defense to almost every claim of discrimination.

Peter Mavrick is an employment attorney with the Mavrick Law Firm.  Mr. Mavrick has successfully represented many businesses in employment law claims in the Miami-Dade, Broward, and Palm Beach Counties.  This article is not a substitute for legal advice tailored to a particular situation.

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