Florida's HB 641 Addresses Gender Identity In The Workplace

We are watching a Bill recently filed with the Florida Legislature addressing gender identity in the workplace. The Freedom of Conscience in the Workplace Act (HB 641) seeks to prohibit employers from accommodating gender ideology preferences and from taking adverse employment actions against employees who oppose concepts of gender identity and gender ideology. If passed, the Bill could require employers to modify job application forms, hiring practices, employee handbooks, HR training presentations and employee disciplinary procedures.

The requirements of HB 641 spring from the statement in the Bill that "It is the policy of this State that a person's sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person's sex." Based on this statement of public policy, the Bill:

• Prohibits employers from providing non-binary or other options on job applications or other forms for disclosing one's "sex" – defined as "the organization of the body...for a specific reproductive role, as indicated by...external genitalia present at birth."
• Prohibits employers from requiring employees from referring to another person (not just other employees) by that person's preferred pronoun if that pronoun does not correspond to that person's "sex," and makes such a requirement an act of discrimination actionable under Florida Statute Ch. 760.
• Prohibits employees from requiring or demanding an employer to use the employee's preferred pronoun if that pronoun does not correspond to that employee's "sex."
• Makes it an unlawful employment practice - actionable under Florida Statute Ch. 760 - for an employer to take adverse action against an employee who opposes the concept of "gender ideology" – defined as "the false belief that replaces the biological category of sex with...self-assessed gender identity..." Notably, this prohibition would apply to the employee's opposition whether at work or "away from the worksite," which would include social media posts, protests, etc.
• Makes it an unlawful employment practice - actionable under Florida Statute Ch. 760 - for a state, county, municipality, special district or other public employer which receives state funding to require training or instruction on sexual orientation, gender identify or gender expression.

The Bill extends not only to employees but also to "contractors" hired by employers.

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