The Only Way "Don't Say Gay" Is Consistent With Title VII Is Complete Gender Neutrality

I'm following up on my post Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade, one, because I've thought more about it, two, because the law really irks me, and three, because I want to explain why an employment lawyer is writing about an education law.

If I go through my memories of law school, back when dinosaurs roamed, one of the things they taught us is the rules of statutory construction. That is, how judges are supposed to interpret laws after they are passed. And one thing that the rules of statutory construction say is that separate statutes must be read together, when possible, to achieve a harmonious statutory scheme. It is assumed that the legislature does not intend to create inconsistency. (Ha! Have they ever listened to a legislative debate?) But anyhow, that's one of the things a judge has to look at. 

And I keep coming back to two laws that are the backbone of any employment law practice: Title VII, which is the federal law prohibiting discrimination in the workplace, and the Florida Civil Rights Act, which is the state law prohibiting workplace discrimination. We all know that the Supreme Court has already ruled that sexual orientation discrimination is sex discrimination covered by Title VII. So sexual orientation discrimination or harassment based upon sexual orientation violates laws prohibiting sex discrimination in the workplace. That is established law. 

So how does that affect the interpretation of Florida's Don't Say Gay law? Let's look at it again: "Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."

Let's look at two second grade teachers. Bob is married to a woman. Barb is married to a woman. Bob and Barb are both asked about their spouses by their students. If school boards, schools, or the state interpret this law to mean that Bob can answer but Barb can't, then they have violated Title VII and the Florida Civil Rights Act. If Barb is disciplined for mentioning her same sex spouse but Bob is not disciplined for mentioning his opposite-sex spouse, that is sex discrimination.

Barb is terrified that she might accidentally mention her spouse during class. If she is subject to extra scrutiny of her teaching methods due to her sexual orientation, that's sex discrimination.

Both Bob and Barb assign students a project to draw their families. Susie draws two dads. When it comes time for each student to discuss their families, do they have to skip Susie? Or tell her she can't mention the dads? Does that make Barb feel upset or attacked? If so, she is being harassed due to her gender. 

The school removes all books with two moms, two dads, any LGBTQ characters. Only straight characters and opposite sex marriages allowed in the library. Barb feels uncomfortable with this. She is being harassed due to her gender.

Now let's look at the gender neutral way to interpret the statute. Both Bob and Barb can talk about their spouses, but not use the terms "husband" or "wife." They can say spouse or partner. Both are treated equally. The kids label moms and dads as "parent" and refer to them as such. Both Barb and Bob are comfortable. The school leaves the books alone. Or removes all books relating to any kind of marriage or romance, including heterosexual ones. Both Bob and Barb feel comfortable. Nobody is being treated differently or made to feel uncomfortable due to their sexual orientation. 

So I repeat my assertion from last week. The Don't Say Gay bill may be the most accidentally woke law I've ever seen. I think that parents and students should insist that it be interpreted as requiring absolute gender neutrality. If schools, school boards, or the state of Florida does otherwise, school employees can bring workplace discrimination claims under Title VII and the Florida Civil Rights Act. And, although I don't do education law, students could have claims under Title IX, the law prohibiting sex discrimination in education.

Don't let the bigots get you down. Make them follow their new law to the letter, assuming it gets signed.

Federal Judge Says All Florida Clerks Have Duty To Issue Same-Sex Marriage Licenses

So, it's official. On Tuesday, January 6 at 12:01 a.m., gay marriage is legal in Florida (absent some intervention by the 11th Circuit or the Supremes). While Greenberg Traurig had previously advised the clerks not to issue the licenses, after the ruling by Judge Hinkle ruled that all Florida clerks have a duty under the Constitution to issue same-sex marriage licenses.

In a display of extreme douchebaggery and poor-loserdom, clerks in Duval, Baker, Clay, Okaloosa and Santa Rosa counties have decided to stop all marriage ceremonies in their offices, just so they don't get the gay cooties. That's right. They've decided to shirk their duty to all citizens of their counties because they don't like gay marriage. Boo-freaking-hoo. These guys go on my permanent Roll Of Shame, and their names will be on the wrong side of history, just like the idiots who tried to stop school integration in the 60s.

Some clerks have announced they will start issuing licenses at 12:01 a.m. on Tuesday. The clerks so far that have made such announcements include Broward and Osceola counties. Many other clerks have announced that they will comply with the order. I haven't heard of any who plan on outright refusing to issue the licenses, but stay tuned.

If you plan to get married on January 6 or 7, please take the 4 hour premarital course that is required, which you can do online or in person. There are quite a few online providers out there. Otherwise, you have a 3 day waiting period. For more on requirements for marriage licenses in Florida, check here and here. Your county clerk's website will also have information about the requirements and their hours. Please note that a license issued by any Florida clerk will let you marry anywhere in Florida, so if your clerk refuses, go to the next nearest county to get the license.

Why does it matter, employment law-wise? Well, it will affect Family And Medical Leave, pension, insurance, benefits, confidentiality, marital status discrimination, privilege, and tax filing status. Florida employers need to get on the phone or email their management-side employment lawyers ASAP to adjust policies and make sure they are in compliance with the laws.

Remember, employee-side lawyers like me are watching to make sure you obey the law and treat same-sex married couples with dignity.

Congratulations to everyone who is getting ready to tie the knot!

UPDATE: The Roll Of Shame: Some Florida Clerks Of Court Refuse To Issue Gay Marriage Licenses Despite Ruling

Why, why, why is it always Florida? In an issue similar to the hanging chads of yesteryear, Florida is in a state of confusion yet again, this time over gay marriage licenses. In every Florida county where a court has ruled on the issue, the courts have ruled that failure to marry gay couples violates the Constitution. Our Republican Attorney General, Pam Bondi, has thrown a tizzy of legal filings everywhere from counties that ruled to the 11th Circuit Court of Appeals to the Supreme Court.

Bottom line so far is that, while the 11th issued a temporary stay of the ruling compelling gay marriage licenses to issue, that stay ends January 5. They refused to extend it. The Supreme Court has also just refused to stay the ruling. So gay marriage becomes officially the law in Florida January 6. Right?

Here comes the confusion. A law firm, Greenberg Traurig (and shame on them), advised the clerks of court that they might face criminal penalties if they issue gay marriage licenses on January 6. They told the clerks that the case legalizing gay marriage only applies to Washington County. Other lawyers say they're dead wrong. I think they're dead wrong. Every single public official in Florida swears to uphold the Constitution. Refusing to issue the licenses violates the Constitution. If they aren't removed from office for refusing to uphold the Constitution in one of these lawsuits,

As a result, couples planning to get licenses January 6 will need to pay close attention to the law and legal wrangling over the next couple weeks.

Flagler County is the only county so far that has said it is definitely issuing licenses January 6. Kudos to Gail Wadsworth for upholding her oath. UPDATE: AP reports that Osceola County is the only county that responded affirmatively when they asked, so whether or not Flagler County will issue licenses is unclear. Orlando Mayor Buddy Dyer has announced he plans to officiate a wedding on January 6. Osceola County has been sued as a result of their announcement.

So far, the following clerks have indicated that they are "ready" to issue licenses January 6 (Whatever that means - are they going to do it? Still unclear):

Broward County
Monroe County

The Monroe County clerk says she wants to be the first clerk to marry a gay couple, so hopefully she'll actually do it and break the ice.

Collier County is still undecided. AP says 6 clerks are undecided, but didn't say which 6.

The following clerks' offices have said they will not issue gay marriage licenses January 6 (unless a court makes them do it), and thus are on my official Roll Of Shame (UPDATE: AP says 46 responded to them that they would not issue licenses, but they didn't share their list):

Miami-Dade County
Pinellas County
Hillsborough County
Pasco County
Hernando County
Lee County
Duval County
Manatee County
Flagler County
Brevard County

No official word yet from Washington County as to whether and whey they will comply with the ruling in the case that started all the confusion. Here's their website, if you want to follow the issue yourself. UPDATE: Last word was they were seeking clarification as to whether they had to issue one license, only to the couple who sued, or issue to anyone who applies. Facepalm. In the meantime, I'll keep updating you on this important issue.

Fourth Florida Court Recognizes Gay Marriage

Adding to the landslide of cases coming down in Florida, a Palm Beach court ruled that it must recognize a Delaware same-sex marriage. In this case, another silly result from Florida's constitutional amendment banning recognition of same-sex marriages was that a widower couldn't be designated as a personal representative for his spouse's estate.

“There is no justification in denying Mr. Simpson the privilege of acting as the fiduciary, based solely on the gender and sexual orientation of his now-deceased spouse,” ruled the judge.

No clerks of court have started issuing marriage licenses in Florida, and all the cases are stayed pending appeal. I'll keep you posted here of the latest developments.

And now that I have your attention, I want to remind you that the American Bar Association's nomination period for the ABA Blawg 100, in which this blog has had the honor of being included the past several years, ends Friday at 5 p.m. Eastern time. The nomination form is here. If you enjoy my posts, I'd sure appreciate your nomination. They'll ask you for some links to posts you liked. Some I can suggest are:

When Is A Company A Joint Employer With Its Franchise Operators?

What Does It Mean Now That My Employer Has A Religion?

The Criminalization of Employment Law 

Florida Legalizes Medical Marijuana But You Can Still Be Fired For Using It

Third Florida Court Strikes Gay Marriage Ban (But No Licenses Being Issued Yet)

Broward County Circuit Judge Dale Cohen ruled Monday that the silly Florida constitutional amendment saying Florida won't recognize gay marriages done in other states is unconstitutional. No surprise there. In this new case, Judge Cohen couldn't grant a divorce without first acknowledging there was a marriage. The amendment would force gay couples who move to Florida to be trapped in marriages. Can you say Full Faith and Credit?

The ruling was stayed, just like the ones in Key West and Dade. In the meantime, folks on both sides of the issue are pushing for the Florida Supreme Court to weigh in on the issue.

I'm still waiting for some brave clerk of court to start issuing licenses, but none have yet. I think it's their duty as officers who obey the constitution to issue marriage licenses to gay couples. If couples do apply and are turned away, they may have some nice legal claims since the clerks are on notice that failure to issue is a constitutional violation. Stay tuned.

Miami-Dade Court Rules In Favor Of Gay Marriage

As I predicted yesterday in my post about the Key West ruling favoring gay marriage, the other Florida courts that have cases pending on same-sex marriage are starting to rule. Miami-Dade Judge Sarah Zabel ruled yesterday (after my blog post) that denying gay marriage violates the Equal Protection Clause of the U.S. Constitution.

Don't rush to Miami yet. The judge stayed her ruling pending appeal.

Will any Florida clerks of court have the guts to start issuing licenses because they swore to uphold the U.S. Constitution? The Boulder, Denver and Pueblo Colorado clerks did. Stay tuned.

Now That Florida Has Gay Marriage, How Does That Affect Employee Rights?

Okay, okay. I know we don't have gay marriage in Florida quite yet. The July 17 Florida ruling on gay marriage only applies to the Keys, and it's stayed pending appeal. Still, there are multiple cases pending around the state, and it's only a matter of time before someone starts issuing licenses and performing marriages.

How does that affect employee rights? There are several ways Florida employees and employers will be impacted once gay marriage starts happening in Florida, so start preparing now:

Family and Medical Leave: Because FMLA applies to leave for care of spouses, Florida employers will have to start granting leave for gay employees who are married. If you have a sick partner and are married, you may qualify for FMLA leave, assuming your employer is large enough and you've been there at least a year. Start gathering those forms and have them ready for your spouse's doctor to fill out so you can put in for leave once you're married if your partner is sick.

Pensions: Spousal benefits will have to be updated to include gay married couples. You will need to make sure you adjust any defined benefit plans if you want to include your new spouse.

Benefits: Health and life insurance will have to be updated to include spouses of gay employees. If your new spouse needs coverage, you need to contact HR to get them on the plan ASAP.

Marital status discrimination: While it still isn't illegal in Florida to discriminate based on sexual orientation, except in some counties and cities, it will be illegal to discriminate against employees just because you don't believe in gay marriage or don't like that they married a same-sex partner. If your employer starts treating you differently after your marriage, you may have a discrimination claim.

Tax filing status: Once you're married, you'll be able to update your tax filing status and employers will have to deal with updated W-4 forms with revised withholdings.

Confidentiality: If you have an agreement that says it can't be disclosed to anyone but your spouse, you may now disclose it to your married partner. This is one of the things I always have to caution unmarried couples, gay or straight about. You could be severely sanctioned if you tell a boyfriend/girlfriend/partner about, say, how much severance you got. All they have to do to mess you up is tell the employer they know what you got and all hell will break loose. Once you're married, you can probably tell and not be sanctioned for it.

Privilege: I absolutely hate having to exclude gay partners from attorney-client meetings, but it's necessary so there's no waiver of attorney-client privilege. Once you're married, your spouse can attend even attorney-client meetings with your permission.

Start planning now, because it's going to start happening very soon. Have your plan in place as to how you will protect your spouse before you say, "I do." And Florida employers, best have your management-side lawyer start updating your policies and forms to make sure you aren't caught flat-footed.

6 Ways Same-Sex Marriage Will Affect Florida Employees

There are multiple lawsuits pending in Florida challenging the state's ban on same-sex marriage. There's one in Key West, one in Miami, one in federal court in Tallahassee, and there are probably some more out there. It's almost inevitable that the ban on gay marriage will be overturned here soon.

So why does an employment lawyer care about gay marriage? Here are just some of the laws that will affect Florida employees and employers once gay couples can marry:

1. Florida Civil Rights Act: The Florida statute against discrimination covers marital status. And I'm betting plenty of backwards Florida employers will discriminate when their gay employees get married.
2. Family and Medical Leave Act: Finally, Florida gay couples will be able to take leave to care for a sick spouse.
3. Benefits: Gay spouses will have to be included in employee benefit plans such as insurance and pension. That includes recognizing a same-sex marriage as a qualifying event to enroll a spouse.
4. Tax filing status: Married gay employees will be able to change the number of deductions they claim.
5. Privilege: Right now, I have to boot same-sex partners from confidential attorney-client meetings because there's no privilege between same-sex partners. Once they're married, I can finally include them. I hate, hate, hate having to inform gay couples how backward Florida law is on this, so gay marriage will be a welcome relief.
6. Confidentiality provisions: Many severance and other employment contracts have confidentiality provisions that prohibit telling anyone but immediate family or spouse. Married gay couples will finally be able to share this vital information with partners.

I'm keeping my fingers crossed that same-sex marriage will soon be allowed in Florida. I'm absolutely, 100% for it. I look forward to a time when we look back on these times like we look back on school integration - with shame for the years of discrimination, pride that Americans eventually do the right thing and nostalgia.