Labor & Employment Law Daily No revival of Title VII claim employee was fired for opposing discrimination based on her heterosexual orientation
Wednesday, April 24, 2019

No revival of Title VII claim employee was fired for opposing discrimination based on her heterosexual orientation

By Kathleen Kapusta, J.D.

Title VII protects employees only from retaliation for complaining about the types of discrimination it prohibits, the appeals court, stated, finding the employee’s claim failed as a matter of law.

Reasserting its position that “Title VII in plain terms does not cover ‘sexual orientation,’” the Fifth Circuit refused to revive a discharged HR manager’s Title VII retaliation claim in which she alleged was fired because she opposed discrimination perpetrated against her on the basis of her heterosexual orientation. “In the face of our unbroken and unequivocal precedents, it is not ‘reasonable’ in the Fifth Circuit to infer that Title VII embraces an entirely new category of persons protected for their sexual orientation,” the appeals court wrote, affirming a magistrate’s dismissal of her complaint for failure to state cognizable claims under federal and state law (O’Daniel v. Industrial Service Solutions, April 19, 2019, Jones, E.).

Facebook post. Three years after she was hired as the manager of an employment agency’s HR department, the employee posted on her Facebook page a photograph of a man wearing a dress at a Target store, writing “So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.” Her post was shared with two of the company’s owners, one of whom was a member of the LGBT community and wanted her fired immediately.

Hostile work environment. Rather than being terminated, however, the employee was required to take a sensitivity/diversity training course and prohibited from recruiting through social media. She also received a letter of reprimand. Several days later, she was placed under the direct supervision of the owner, whom the employee claimed conspired with the other owner to create a hostile work environment in an attempt to force her to quit. When the employee failed to attend any of the sensitivity training classes, the owner purportedly modified her schedule to conflict with her children’s schedules. She complained again about discrimination and harassment and was ultimately fired “due to unsatisfactory job performance.”

Prior proceedings. She initially sued pro se, alleging violations of multiple anti-discrimination laws. She then filed a first amended complaint to reflect claims under Title VII and various Louisiana statutes. Her employer moved to dismiss, and before her response was due, she obtained counsel and moved to amend her complaint. The district court denied her motion for leave to amend and granted the employer’s motion to dismiss.

Amici urge her belief was reasonable. After first noting that the employee waived her claim she was dismissed because of her sexual orientation—it was inadequately briefed—the appeals court turned to her Title VII retaliation claim. The court noted that the EEOC, ACLU, and several other organizations submitted amicus curiae briefs arguing that Title VII ought to encompass sexual orientation as a protected class and urging that whether or not Fifth Circuit precedent recognizes a claim for discrimination on the basis of sexual orientation under Title VII, at the time the employee threatened in the spring of 2016 to file an EEOC complaint, she could have reasonably believed sexual orientation discrimination was prohibited by Title VII.

No retaliation. The employee in essence claimed she was retaliated against because she opposed discrimination based on her heterosexual orientation, said the court, noting that the “propositions she and the amici advocate would require us to press beyond limits firmly established in the statute and our case law. Therefore, regardless of the ‘evolution’ in other courts’ decisions or the parties’ preferred policy positions, we affirm the magistrate judge’s straightforward approach.”

Law is clear. Other circuits, the appeals court explained, have recognized the Fifth Circuit’s unequivocal stance barring Title VII coverage of sexual orientation as a protected class. And because the law in the Fifth Circuit is clear, the three-member panel found it could not accept the employee’s or amici’s suggestions that it either overrule the precedents or assume arguendo that the “trend” has upended them.

Although the court acknowledged there was no dispute the employee advised the owners on several occasions of her intent to file some kind of discrimination complaint, her allegations of protected conduct had to be reasonable. But the question, said the court, was not the potential scope of “sex harassment” prohibited by Title VII for over 30 years but rather the exclusion altogether of “sexual orientation” from the term “sex” in the statute.

Observing that the employee and amici contended it was reasonable for her to be knowledgeable about the “uncertain” state of federal law throughout the circuit courts regarding the coverage of sexual orientation in Title VII, but ignorant about what the Fifth Circuit has held, the court found this untenable. “Title VII protects an employee only from ‘retaliation for complaining about the types of discrimination it prohibits,” said the court, finding the employee’s claim failed as a matter of law.

Freedom of expression. And while the employee also asserted a claim for freedom of expression under Louisiana Constitution Article 1, Section 7, arguing it was unsettled as to whether the provision covers conduct by private individuals or entities, the court disagreed. Citing a recent Louisiana Supreme Court case, the appeals court noted that while the Louisiana constitution may extend broader protections for speech than the First Amendment, it does so only as to state actors.

Concurrence. In a separate opinion, Judge Haynes concurred with the court’s opinion affirming the dismissal of the employee’s complaint but would not have reached the issues addressed by the majority. Instead, she would have dismissed the complaint, because even if all the factual allegations in her complaint were accepted as true, there was no reasonable inference she was fired for any reason other than her Facebook post. “The question is not whether people are entitled to disagree (rudely or politely) about sensitive issues. The question is whether O’Daniel has stated a claim under Title VII. Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there.”

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