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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/

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