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.
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.”
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