FLORIDA'S LATE ENTRANCE TO THE ON GOING TREND: SEXUAL ORIENTATION DISCRIMINATION IN THE WORK PLACE.

• Author: Rivero, Ernesto G.

1. INTRODUCTION

   John Doe is an exceptional firefighter who also happens to be a homosexual. (1) John performs his duties every day to the utmost of his ability; however, in response to his sexual orientation, John is verbally harassed daily, underpaid for his line of work, and subsequently discharged from his position. (2) This is a consequence of practicing his protected constitutional right of same sex marriage at his workplace. (3) Every individual ought to have a fair and inclusive workplace free from discrimination; that is not the case in today's America. (4)

   Although employees are protected from discrimination by the Civil Rights Act of 1964 ("Title VII"), courts have been reluctant on defining sex to include sexual orientation. (5) This is the unfortunate reality of the workforce: discrimination based on sexual orientation is not prohibited. (6) Despite the narrow interpretation of Title VII, several states have already amended their laws to extend the interpretation to sexual orientation. (7) Although several cities have local ordinances, Florida has no statutory law in place which protects the lesbian, gay, bisexual, or transgender ("LGBT") (8) community in the workplace. (9) Over the course of ten years, Florida has attempted and failed to pass the Florida Competitive Workforce Act ("FCWA"), (10) placing their own employees in fear of being harassed or even discharged from work for practicing their own beliefs. (11)

   Amending Florida legislation to include protections for LGBT employees would ensure the highest qualified worker is hired for employment and would undoubtedly boost the economy as a result of solely merit-based hiring. (12) Due to the nation's ongoing trend, the FCWA should be brought up once again for legislation and become the law of the land in Florida. (13) If the bill is denied, Florida risks national animosity and falling behind the growing global economy. (14)

   This Comment addresses the proposed legislation by the Florida House of Representatives known as the FCWA. (15) Part II will focus on the history of Title VII. (16) In particular, it will discuss federal circuit split cases in dispute regarding the scope of Title VII's coverage of sexual orientation discrimination. (17) Part II will also review Florida's judicial interpretation of Title VII and cases within the state that have granted protection to those discriminated against based off of their sexual preference. (18) Further, Part III will analyze the negative ramifications of failing to pass such legislation both socially and economically. (19) Lastly, Part IV will emphasize the policy behind the FCWA and how its enactment will promote a more balanced and morally sound workplace by creating a business environment suitable for optimal competitive development in Florida. (20)

2. BACKGROUND

   1. TITLE VII HISTORY

      Before Title VII was enacted, an employer could reject an applicant or fire them solely based on the color of their skin, their religion, or their sex. (21) Title VII's implementation has protected workers over the years from various forms of discrimination including gender discrimination. (22) However, centuries later, Title VII's interpretation of sex discrimination encompasses a much broader range of issues than the traditional misfortunes experienced by women in a male-dominated workforce. (23) Employees are now being treated unfairly, harassed, and even discharged solely because of their sexual orientation. (24) In Blum v. Gulf Oil Corp., the courts first decided the extent to which "sex" was defined within Title VII's parameters by granting protection for sexual orientation discrimination; this opened the flood gates to many ensuing statutory interpretation arguments. (25)

   2. FEDERAL INTERPRETATION SPLIT

      Although the Supreme Court has yet to rule on the issue, several lower courts have been consistent with determining that Title VII does not cover discrimination on the basis of sexual orientation. (26) In Evans v. Ga. Reg'l Hosp., the Eleventh Circuit, relying on the Blum decision, ruled that "sex" does not expand to discrimination based off of sexual orientation. (27) Further, in Vickers v. Fairfield Med., the Sixth Circuit followed the Blum holding once again when deciding a sexual orientation claim may not be brought under Title VII. (28) The reasons for excluding this specific form of bias from the definition of sex has yet to be explained by the Eleventh Circuit, rather the court points to the thirty-year-old Blum case to explain their reasoning and that their holding is established precedent. (29)

      However, in Hively v. Ivy Tech Cmty. College of Indiana, the Seventh Circuit decided for the first time that alleging employment discrimination on the basis of sexual orientation is, in fact, a discrimination case protected under Title VII. (30) In Zarda v. Altitude Express, the Second Circuit followed right behind when they decided sexual orientation discrimination is motivated in part by sex and falls under sexual discrimination as Title VII is defined. (31) The courts placed great deference on the fact that employees should be evaluated on their job performance--not on who they love. (32) Both U.S. Appellate courts agree that with exponentially different times, the focus should be on what the law interprets "sex" discrimination as defined in today's culture, rather than what it meant forty years ago. (33)

      The conflicting interpretations of federal law provided by the different circuits should warrant review by the Supreme Court to clarify the scope of Title VII. (34) In Obergefell, awarding same sex marriage nationwide, the circuit courts faced a similar predicament and the Supreme Court answered by granting review. (35) Unfortunately, one can be protected from being discriminated on the basis of their sexual preference on one side of the country, while being harassed on the other. (36) The opposing opinions have even sparked interest from two federal agencies to file several amicus briefs demanding resolutions. (37) Ultimately, it is not for Congress to decide the law, but for the Supreme Court to interpret it, thus an answer to the circuit split is inevitable. (38)

   3. FLORIDA INTERPRETATIONS OF TITLE VII

      The Florida Civil Rights Act of 1992 (the "FCRA") is nearly identical in structure to Title VII, both prohibiting employment discrimination on the basis of sex, yet failing to define sex. (39) Rather than waiting for federal judicial precedent, Florida has attempted to file the FCWA to effectively define sex as encompassing sexual orientation by amending the FCRA; however, Florida's nearly decade-long pursuit was of no avail. (40) Those against amending the FCRA argue that implementation could potentially open up the flood gates to further litigation, and would create "special rights" for specific persons in Florida. (41) However, those in favor of the bill counter the disapproval by focusing on the wrongful morality behind denying such equal protection and the economic benefit that would stem from instilling such protection. (42)

      Aside from one decision in the Northern District of Florida, the district courts in Florida have consistently ruled that Title VII does not apply to sexual orientation discrimination claims. (43) Despite the failure of judicial deference, many local cities have taken it into their own hands to place local ordinance requirements for businesses in their area. (44) These local ordinances expand the scope of the FCRA to include protection against sexual orientation discrimination within the workplace in those regions. (45) Further, many businesses implement their own employment policies to expand protection in the workplace and demand equality among their employees. (46)

3. DISCUSSION

   1. MODERNIZING THE FCRA

      The FCRA should be amended to include sexual orientation under its discriminatory employment practice provision. (47) Although it has continually failed in the past, the FCWA should be raised to the House and Senate in 2019 to create consistency in the rights assigned to individuals, promote a more balanced and morally sound workplace, and create a business environment suitable for optimal competitive development. (48) Although the FCWA has been knocked down for nearly a decade, the legislatures should consider both the great value of passing the bill and the negative ramifications of failing to follow the national trend against sexual orientation discrimination. (49)

      History has continuously indicated that all individuals deserve to have their human rights protected. (50) America's growth as a nation is credited to learning from its prior faults, as rights have been given to those unjustly discriminated against in the past, such as African Americans, women, and those that practice certain religions. (51) One should not be punished or discriminated against for the way they were born. (52) Similarly here, the LGBT community in Florida should not be penalized and at a disadvantage in the workplace for being who they are. (53)

   2. ECONOMIC GROWTH

      As a business owner in the modern era, one must adhere to any national regulations since the competitiveness of the market constantly separates those who are profitable from those who face economic turmoil. (54) The ongoing trend is to promote employee diversity and stimulate new ideas by specifically prohibiting sexual orientation discrimination in the workplace. (55) Research has shown that failure to observe these practices through modernization can scare off new business development. (56) These new businesses looking to expand and grow, such as Amazon and Apple, can lead to an influx of local jobs within the state, and a substantial increase in investment, development, and revenue. (57)

      i. Lack of LGBT Protection in the Workplace

      Several conservative states have repealed laws which protected the LGBT community, immediately causing a backlash that decreased economic development. (58) North Carolina passed House Bill 2 ("H.B. 2")...