Employment Law Daily Fired for anti-LGBT Facebook post, employee can’t show Title VII or free speech retaliation
Monday, January 8, 2018

Fired for anti-LGBT Facebook post, employee can’t show Title VII or free speech retaliation

By Joy P. Waltemath, J.D.

Allegations that an employee was fired because she posted on her Facebook page a photograph of a man wearing a dress at a Target store and commented on his potential use of the women’s restroom and/or dressing room—and that the company president, a “member of the LGBT community,” suggested she be fired—did not present a viable freedom of expression claim under the Louisiana constitution, nor did they support a viable Title VII retaliation claim. A federal district magistrate in Louisiana pointed out that the Louisiana constitutional protections for free speech and expression did not apply to private actors, and she could not state facts supporting a public policy wrongful discharge exception to employment at will. Nor did the facts support a retaliation claim based on her opposition to sex discrimination or sexual orientation discrimination (which is not recognized by the Fifth Circuit under Title VII). Her complaint and proposed amendments were dismissed (O’Daniel v. Industrial Service Solutions, January 2, 2018, Bourgeois, R. Jr.).

Searching for actionable claims. The fired employee initially filed pro se claims for discrimination, retaliation, defamation, and intentional infliction of emotional distress against multiple defendants, including individuals. After she retained counsel, she proposed a second amended complaint to instead include retaliation for exercising her constitutionally protected right to freedom of expression, in violation of La. Const. Art. 1 § 7, a state invasion of privacy claim, and Title VII retaliation by terminating her due to her opposition to the company’s sex discrimination after she informed them she intended to (but had not yet) filed a sex discrimination claim.

Eventually the employee abandoned many of her initial claims, which the court dismissed with prejudice, and sought only to amend her complaint to allege the state constitutional freedom of expression claim and a retaliation claim under Title VII. She contended that her retaliation claim in violation of her right to freedom of expression was valid because the Louisiana Constitution provides a remedy for retaliation to private employees, and her Facebook post touched upon a matter of public concern. Her Title VII retaliation claim was valid, she said, because she engaged in “protected activity” by asserting that she would file a formal complaint (and after she was fired, she filed an EEOC charge), opposing the company’s unlawful discrimination. In response, her employer argued that the Louisiana constitutional provision was not applicable to alleged retaliation by private employers, and Title VII does not protect complaints concerning harassment based upon a non-protected characteristic such as sexual orientation.

State freedom of expression. But the Louisiana Constitution, in relevant part, says “No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.” This state free speech protection mirrors the First Amendment, and it is well settled, said the court, that the First Amendment does not protect a person’s right to private employment, but only affords protections against state action. As such, the employee’s proposed freedom of expression claim against a private company and private individuals was futile and was dismissed.

Public policy wrongful discharge. To the extent the employee was attempting to allege a wrongful discharge claim based on a public policy exception to employment at will, that too was futile, said the court. Aside from the federal and state statutory exceptions, there are no broad policy considerations creating exceptions to employment at will and affecting relations between employer and employee in Louisiana. It was undisputed the employee was at-will, and no precedent or statute on which to find that at-will employees in Louisiana enjoy a private right of action against their private-sector employers when they are terminated for the exercise of speech under the Louisiana Constitution.

Title VII retaliation. Title VII only protects opposition to discrimination based on “race, color, religion, sex, or national origin,” so the court framed the issue as “whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” Because the employee filed her formal EEOC charge after she was fired, there was no actionable retaliation there. But she argued that the proposed complaint allegations established that she engaged in protected activity by telling her employer she would file a formal complaint before she was fired. This formal complaint was to include, among other things, allegations that the company president, “a member of the LGBT community,” discriminated against the employee “on the basis of her sex, as a married, heterosexual female.” While alleged discrimination based on her status as a “married, heterosexual female” might not be prohibited under Title VII, she claimed she reasonably believed it was.

Sexual orientation discrimination not prohibited under Title VII. What the employee actually was alleging, said the court, was retaliation under Title VII on the basis that she reasonably believed that she could not be discriminated against based upon her sexual orientation as a heterosexual female. It was unreasonable for her to believe that discrimination based on her status as a married, heterosexual female was discrimination on the basis of sex or that she was opposing discrimination based on sexual orientation. Accordingly, the court found no protected activity or reasonable belief that she had engaged in protected activity, and she could not plead a prima facie case of Title VII retaliation.

Even if Title VII did offer protection regarding sexual orientation discrimination, the employee clearly had not alleged that the company fired her because of her sexual orientation. At most, she alleged that the company president was offended by her Facebook post and asked that she be fired. There were no allegations of any discriminatory treatment or references to the employee’s sex or sexual orientation. Consequently, the employee’s claim for Title VII retaliation also was dismissed.

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