Sexual Orientation Discrimination

Attorneys Serving You and the state of Florida

Polls consistently show that 75% of Florida’s population supports fully inclusive laws that protect members of the LGQBT+ community. However, there is still no statewide law that expressly prohibits discrimination against LGBTQ+ people.

Current statewide laws make it illegal to discriminate in housing, employment, and public accommodations based on:

• Race
• Religion
• Sex
• Pregnancy
• National origin
• Age
• Marital status
• Handicaps

The United States Equal Employment Opportunity Commission (EEOC) provides protection against discrimination based on sexual orientation at the federal level. Widely known as Title VII of the Civil Rights Act of 1964, the determination of “sex” has been widely litigated. Though recent federal laws have expanded to include sexual orientation, the protection only applies to employers who employ more than fifteen employees and employees who work more than twenty weeks a year.

Federal law 42 U.S.C. § 2000e-2 (Section 703) applies to the private sector, labor organizations, and state and local governments. Section 703 establishes a prohibition of discrimination based on sex and clarifies that sexual orientation and transgender status are covered under those protections.

42 U.S.C. § 2000e-16 (Section 717) deals with employees of the federal government and provides protection against discrimination based on sexual orientation and transgender status.

Title VII remained a gray area for members of the LGBTQ+ community for far too long. Though federal laws continue to gain strength in offering protection from discrimination based on sexual orientation, Florida lags behind much of the country in offering similar protection at a state level.

The Florida Competitive Workforce Act

The Florida Competitive Workforce Act (FCWA) would prohibit discrimination based on sexual orientation and gender identity. The act would amend Chapter 760 of the state statutes that currently prohibits discrimination based on the characteristics listed above.

Despite overwhelming support, the bill has yet to pass into law in Florida. The bill would make it illegal for an employer to fire a gay, bisexual, or transgender person based on their sexual orientation or their gender identity. Though more than twenty states have passed such legislation, the Florida measures have failed in the Legislature for over a decade.

What is Sexual Orientation Discrimination and Gender Identity Discrimination

Sexual orientation discrimination happens when you are treated differently in any aspect of employment because of your sexual orientation. Whatever your sexual orientation, including heterosexual, it should not impact how you are treated at work.

Sexual orientation discrimination happens when you are treated differently based solely on your real or perceived sexual orientation. The discrimination may occur because of how someone else perceives your sexual orientation, whether the perception is correct or not. The discrimination may also occur based on your association with someone of a different sexual orientation.

Though “sex” and “gender” are often used interchangeably, they have different meanings in law. The term “sex” is a person’s anatomical identity of male or female. “Gender” is a collection of characteristics that are associated with females and males. Gender discrimination refers to being treated differently in aspects of employment because of your gender identity.

• Discrimination based on gender identity can include:
• Termination once the employer discovers the employee’s gender identity
• Denying access to workplace restroom facilities appropriate for the person’s gender identity
• Harassment or refusing to investigate claims of harassment made by the employee
• Being terminated or disciplined for cross-dressing either at work or outside the workplace
• Disciplinary action for wearing clothing appropriate to your gender identity treated as a failure to conform to a dress code policy
• Any adverse employment action based on the employee’s gender identity
• Transgender individuals are those whose gender identity does not match the sex they were assigned at birth. It is also essential to note that identifying as transgender has nothing to do with sexual orientation.

LGBTQ+ individuals may have to endure jokes or slurs about their gender identity or sexual orientation at work. Often, the courts have held that this is a form of sexual harassment and, therefore, is illegal discrimination. However, it can be challenging to draw the lines between offhand comments, teasing and isolated incidents versus ongoing harassment. If the conduct is creating a hostile work environment, you are entitled to protection under the EEOC.

If you feel you are forced to work in a hostile environment based on your gender identity or sexual orientation, contact an experienced employment attorney to discuss your rights under federal and Florida law. The Lopez Law Group works with both employees who feel that they are suffering discrimination and harassment and employers who want to make a safer and more inclusive workplace for their employees.

Everyone has a right to live and work in a place free of discrimination and harassment. Let the Lopez Law Group help you determine your options when faced with discrimination where you work or live.

Know Your Company’s Policies

Four out of five Fortune 500 companies have policies in place to protect employees from discrimination based on sexual orientation. Fortune 500 companies are not alone in their strides to remove discrimination from the workplace. Many smaller companies have strict anti-discrimination policies in place as well.

A company’s policy may often be more stringent than any protection under federal, state, or local law. If so, this provides you with additional protection should you end up in litigation for discrimination. Know your companies’ policies regarding gender identity and sexual orientation so that you can hold the company accountable for any harassment or discrimination you encounter.

What Should I Do if I have Been Discriminated Against Based on my Sexual Orientation

Discrimination based on gender or sexual orientation can be subtle or overt. If you feel you have been discriminated against based on your sexual orientation or gender, you should contact an experienced employment attorney in Florida that can review your case and advise you on the best way to proceed.

Discrimination may include:

• A refusal to hire you based on your LGBTQ+ status
• Being denied advancement based on your LGBTQ+ status
• On-the-job harassment because of your sexual orientation
• Being paid less than other employees that are doing the same work
• Being denied FMLA leave to care for a spouse or a child
• Being terminated or demoted because of your LGBTQ+ status
• Denial of company-sponsored spousal or family benefits

Numerous counties and cities in Florida have enacted anti-discrimination ordinances that may impact your rights in the workplace. Jacksonville, Miami, Tampa, Tallahassee, Orlando, and St. Petersburg all have local ordinances that offer some measure of protection against discrimination based on sexual orientation. Over half of Florida residents live in counties where there are protections against discrimination based on sexual orientation.

If you feel you have suffered discrimination based on your sexual orientation, you should:

• Document each instance of discrimination
• Take notes of what was said, when, and by who
• Keep all documentation related to hiring, firing, and disciplinary action was taken against you
• File a complaint with the Human Resources Department of your workplace
• Contact a Florida attorney skilled in employment law

The Commission on Human Relations is responsible for enforcing state anti-discrimination laws in Florida. You can contact them to learn more about how to file a complaint, or you can contact an employment attorney to determine if you have grounds for a complaint.

You Have Legal Protection From Retaliation

It can be daunting to accuse an employer of discrimination because you fear retaliation. Fortunately, there are state and federal laws in place to protect you from retaliation if you make a discrimination claim against your employer.

Federal employment discrimination laws that contain anti-retaliation provisions that make it unlawful for employers to punish employees include:

• Title VII of the Civil Rights Act of 1964, discussed above, protects employees from discrimination on the basis of race, color, national origin, religion and sex. Federal law has widely interpreted
• Title VII to include protection from discrimination based on sexual orientation.
• The Americans with Disabilities Act (A.D.A.) serves to protect employees from discrimination based on a disability
• The Pregnancy Discrimination Act (P.D.A.) protecting employees from discrimination based on pregnancy
• The Age Discrimination in Employment Act (ADEA) which offers protection to employees against discrimination that is based on age
• The Equal Pay Act (E.P.A.) protects employees from discrimination on the basis of sex with regard to compensation

In Florida, the Florida Civil Rights Act (FCRA) contains anti-retaliation provisions protecting employees engaged in statutorily protected activities. As discussed above, the FCRA protects Floridians from discrimination based on race, color, national origin, pregnancy, religion, disability, age, marital status, and sex. However, state law has not widely defined “sex” as protection for those in the LGBTQ+ community.

Protected actions under the anti-retaliation provisions of discrimination laws include:

• Filing a complaint to a supervisor or manager about alleged discrimination
• Making a complaint to a manager or supervisor about harassment at work
• Making a complaint to a supervisor or manager that another employee is being discriminated against or harassed at work
• Telling a supervisor or manager to stop harassing you
• Refusing to obey an order because of your belief that the order constitutes an unlawful employment practice
• You are protected from retaliation for requesting a reasonable accommodation for a disability
• You are legally protected from retaliation if you file an assault and battery police report because of sexual harassment in the workplace

To be considered an adverse employment action, the action must be one that materially affects the terms, conditions, compensation, or privileges of your employment. The courts uniformly hold that the following things constitute an adverse action:

• Failure to hire
• Failure to promote
• Demotion that includes a decrease in compensation
• Denial of benefits
• Reduction in hours or reduction in pay
• Suspension without pay
• Layoff
• Termination

Other forms of action that may rise to the level of unlawful retaliation include:

• Disciplinary action
• Increased workload without adequate explanation or reason
• Eliminating the responsibility for supervising others
• Denying training or other opportunities
• Transferring you to a different position
• A negative performance evaluation that is undeserved
• Increased scrutiny on work performance, or holding you to attendance standards not expected of other employees

If you have brought attention to harassment or discrimination and suffered retaliation, it is crucial that you contact a knowledgeable employment attorney as soon as possible. Keep thorough notes and records about the retaliation. The Lopez Law Group is experienced in employment law and discrimination cases and stands ready to offer a case review.

OCALA BASED EMPLOYMENT RETALIATION ATTORNEYS SERVING CENTRAL FLORIDA

Contact the Lopez Law Group Today

The Lopez Law Group is an experienced, compassionate, and knowledgeable team of legal professionals ready to help you understand your rights. If you have suffered discrimination based on your sexual orientation or gender, contact us today for a case review. We will review your case and work closely with you to help you determine the best path forward.

Call us today at (727) 933-0015.

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