Skip to main content

Fifth Circuit Court of Appeals Addresses Whether Title VII Offers Anti-Discrimination Protections to Heterosexual Employees


As readers might be aware, Title VII of the Civil Rights Act of 1964 bars employers from discriminating based upon race, color, religion, sex, national origin, age, disability, or pregnancy.  While the Equal Employment Opportunity Commission (“EEOC”) has concluded that Title VII also prohibits sexual orientation discrimination in the workplace (as it has been found to be a form of sex discrimination), courts across the country have wavered on the applicability of the EEOC’s conclusion in recent years.  Currently, there is no federal law which has been passed to specifically include sexual orientation discrimination as a protected class under Title VII.  With that being said, the EEOC’s 2015 ruling was deemed by many to be historic and hailed by those in the LGBTQ community as a progressive step forward.  As such, in recent years, LBGTQ advocates have urged courts across the country (often via amicus briefs) to follow the EEOC’s lead and hold that Title VII prohibits sexual orientation discrimination in the workplace.  As noted, results have been somewhat mixed.

That leads us to a case currently pending in the Fifth Circuit Court of Appeals.  That case, O’Daniel v. Industrial Service Solutions, turns the question of whether sexual orientation discrimination falls under Title VII a bit on its head:  Assuming sexual orientation discrimination is prohibited against LGBTQ employees under Title VII, does Title VII also prohibit sexual orientation discrimination against heterosexual employees?  In this Fifth Circuit case, Bonnie O’Daniel (“O’Daniel”) claims she was terminated by her employer after she posted a picture on her personal Facebook page of a man wearing a dress in Target and commented on his ability to use the women’s restroom or dressing room.  O’Daniel argues that because her employer’s president is a member of the LGBTQ community and took offense to the Facebook post, O’Daniel’s termination was sex discrimination on the basis of her sexual orientation (heterosexual).

The district court dismissed O’Daniel’s claim on the grounds that even if Title VII did offer protection in regard to sexual orientation discrimination, O’Daniel did not allege that she was in fact terminated because of her sexual orientation.  While O’Daniel argued that her employer’s president was offended by the Facebook post and ultimately called for her termination, the district court found that O’Daniel failed to identify any instance in which her employer discriminated against her on the basis of O’Daniel being a “married, heterosexual female”.

Earlier this month, the Fifth Circuit Court of Appeals heard oral arguments in the matter to address whether Title VII does in fact prohibit sexual orientation discrimination against heterosexual employees as well as whether the complained of conduct by O’Daniel’s employer amounted to unlawful discrimination.  As some have pointed out, and as noted in the oral arguments, even if Title VII protects against LGBTQ discrimination, that does not necessarily mean that Title VII also recognizes an actionable offense every time a heterosexual employee is deemed to have suffered a negative employment action by an LGBTQ employer, supervisor, manager, etc.

This is a case I am interested to see play out at the appellate level.  Regardless of which way the Fifth Circuit rules, I think this Title VII question is ultimately a matter the United States Supreme Court considers.


For a recording of this month’s oral arguments:  https://www.courtlistener.com/audio/60835/bonnie-odaniel-v-industrial-service-solutions-e/

Comments

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per