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Northern District of Florida Holds Title VII Prohibits Sexual Orientation Discrimination

In a recent groundbreaking opinion written by Judge Mark Walker, Winstead v. Lafayette Board of County Commissioners, the Northern District held that Title VII prohibits employers from discriminating on the basis of an employee's sexual orientation or their perceived sexual orientation. The opinion arose out of a lawsuit filed by two female EMTs employed by Lafayette County. Their complaint alleged that members of the Lafayette County Commission had engaged in harassment and failed to protect them from harassment of a co-worker based on his perception of their sexual orientation. The county argued that the plaintiff's claims should be dismissed because Title VII does not prohibit discrimination on the basis of sexual orientation. 

Judge Walker disagreed, finding that Title VII's general prohibition on discriminating against employees "because of sex" included discrimination on the basis of sexual orientation. The opinion comes in the wake of a growing number of EEOC decisions recognizing a cause of action for sexual orientation discrimination. Those decisions have found that sexual orientation discrimination is necessarily sex discrimination. For instance, if a heterosexual and homosexual employee both display pictures of their spouse at the office and only the employee in the same-sex marriage were suspended, the suspension would necessarily be "because of sex" since the adverse conduct would not have occurred if the employee was of a different sex.

While the Northern District's opinion arrived at the same result as these recent EEOC's decisions, Judge Walker relied on a slightly different rationale. He characterized discrimination on the basis of sexual orientation as a form of gender stereotype discrimination. Following a 1989 decision called Price Waterhouse v. Hopkins, the Supreme Court has held that Title VII prohibits discriminating against a person because they transgress stereotypical gender norms. Judge Walker reasoned that the sexual orientation discrimination in this case was a subset of this type of discrimination, because it punishes women for having the "traditionally male trait" of being attracted to a woman. While the Eleventh Circuit Court of Appeals has never applied the Price Waterhouse doctrine to sexual orientation discrimination, a 2011 case called Glenn v. Brumby found that discriminating against a transgender person violated the Equal Protection Clause of the Fourteenth Amendment because it was a form of gender stereotyping.

The Northern District's opinion marks another step in what has been a major shift toward recognizing sexual orientation as a protected category under Title VII. There is still no binding precedent from the Eleventh Circuit on this issue. However, Judge walker was critical of older opinions that seemed to foreclose a cause of action for victims of sexual orientation discrimination, labeling a Fifth Circuit opinion as "one of many examples of a parsimonious reading of Title VII failing to stand the test of time." The Northern District's opinion is one of many recent encouraging signs for LGBT individuals in the workplace. A victim of sexual orientation discrimination need not wait for reforms to federal civil rights laws or the passage of local human rights laws in order to seek relief, as many courts are finding that sexual orientation is a protected characteristic under Title VII as it is currently written.

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