As HB 641 — or the Freedom of Conscience in the Workplace Act — makes its way through the Florida legislature, I’ve been plagued by some questions. At the top of the list: How might HB 641 run afoul of Title VII of the Civil Rights Act?
This legislation, which would prevent employers from taking adverse employment actions against workers who don’t believe in the concept of gender identity, would apply to public employers in Florida, nonprofits or private-sector employers that take state or regional money.
I interviewed Kelly Kolb, a Fort Lauderdale-based shareholder of Buchanan Ingersoll & Rooney’s labor and employment practice, and Debra Leder, a partner in Akerman’s labor and employment practice group, about how the proposed bill would affect employers.
How HB 641 can complicate the world of work
Kolb told me that, during a Florida Senate hearing he attended, someone in attendance raised a hypothetical scenario: What would happen if, after a cisgender employee is fired for harassing a transgender employee, the trans employee sues under U.S. Supreme Court precedent, and the cis employee sues under this new bill?
Essentially, HB 641 could put employers in a double bind. So if HB 641 were to pass, what should Florida-based employers do if pronouns or gender-related conversations drive a wedge between workers with different gender identities?
“That’s a difficult question,” Kolb told me. “The best I can recommend is to try to work it out between these two people.”
He brought up Labriola v. Miami-Dade County, in which the 11th U.S. Circuit Court of Appeals found that Miami-Dade County did not violate a worker’s free speech rights by firing him after he penned a piece using “off-color” language to describe transgender people.
Kolb told me that at the Senate hearing, HB641 sponsors admitted that Labriola was “the sole impetus” for the bill.
“If a co-worker is as adamant about being anti-transgender as this gentleman was in Miami, I don’t know that there is going to be a good solution for an employer,” Kolb said.
How HB 641 could run afoul of Title VII
When I reached out to Leder, over email, she illuminated how the Civil Rights Act and SCOTUS rulings interpreting it could be complicated by HB 641.
While the U.S. Equal Employment Opportunity Commission rescinded gender identity-related workplace guidance earlier this year, past court decisions, such as SCOTUS’ Bostock v. Clayton County, Leder said, still interpret Title VII as protecting against discrimination based on gender identity.
“This creates ongoing legal uncertainty for employers,” she told me.
“It has long been a principle of federal (Title VII) and state (FCRA) law that workplace conduct, when sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, may be actionable,” Leder added. Courts interpreting the federal and state civil rights acts “have continued to hold that discrimination based on gender identity is prohibited. This includes adverse actions and, in some circumstances, harassment related to pronoun use.”
So what are best practices here for Florida HR pros dealing with a tricky workplace landscape?
“The best advice for HR teams is to stay informed and flexible: Review and update policies as needed, monitor court developments, and focus on maintaining a respectful and professional environment for all employees,” Leder said. “Being prepared to adapt quickly as the legal landscape evolves will be essential.”
