The Fifth Circuit Court of Appeals in O’Daniel v. Industrial Service Solutions, released on April 19, 2019, affirmed a lower federal court’s dismissal of a lawsuit that claimed harassment and discrimination based on her heterosexual orientation. The Fifth Circuit held that there were no protections for sexual orientation employment discrimination under the law.

Bonnie O’Daniel worked at Plant-N-Power Services under Cindy Huber, who became president when the company was involved in a merger with Industrial Service Solutions. Ted Simoneaux was the vice president. O’Daniel developed a fantastic relationship with Huber and Simoneaux, although she never personally met Huber, who worked in the Texas office. On April 22, 2016, O’Daniel made an incendiary Facebook post. O’Daniel referred to the post simply as “that of a man at Target wearing a dress and not[ing] his ability to use the women’s bathroom and/or dressing room with Mrs. O’Daniel’s young daughters.” The text of O’Daniel’s post stated: “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.” The post included photos of the individual referred to in the post.

The post was shared with Simoneaux and Huber. Huber took personal offense to the post because she was a member of the LGBT community and felt the post wronged all members of the LGBT community, including herself. Huber told Simoneaux that she wanted O’Daniel fired, but Simoneaux convinced Huber not to, and instead required O’Daniel to take a sensitivity/diversity training course and advised her she could no longer recruit through social media. When O’Daniel failed to attend the course, Huber placed O’Daniel under her direct supervision and made rules that only applied to O’Daniel, such as modifying her schedule to conflict with her children’s schedules and putting her on a time clock. O’Daniel told Simoneaux that she felt she was being harassed and discriminated against because she was a heterosexual and advised she would be filing a formal complaint. A week later, Simoneaux told O’Daniel that the next week would be her last week. O’Daniel’s separation notice stated she was “fired due to unsatisfactory job performance.” However, when O’Daniel filed for unemployment benefits, she was denied due to employee misconduct. O’Daniel filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on December 20, 2016, and received her right to sue letter shortly afterward.

O’Daniel then filed a lawsuit in federal court alleging violations of multiple anti-discrimination laws, wrongful termination, intentional infliction of emotional distress, discrimination claims under Title VII of the Civil Rights Act, and various Louisiana statutes. The court dismissed her lawsuit, and she appealed.

The issue on appeal was whether Title VII, which outlaws employment discrimination based on “race, color, religion, sex, or national origin,” also encompassed sexual orientation as a protected class. Several organizations such as the EEOC and the American Civil Liberties Union Foundation filed amicus curiae briefs, asserting that Title VII ought to encompass sexual orientation as a protected class.

The Fifth Circuit reasoned that while “sex” discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping, the plain terms of Title VII does not cover “sexual orientation.” Acknowledging the evolution in other courts’ decisions interpreting Title VII to include sexual orientation, the Fifth Circuit decided to adopt the literal reading of the statute, which did not include sexual orientation as a protected class.

 

The concurring opinion pointed out that O’Daniel was not fired because she was heterosexual, but because of her Facebook post.

On April 22, 2019, the U.S. Supreme Court announced that it would resolve the split among the circuits as to whether sexual orientation is protected under Title VII of the Civil Rights Act, providing the first indication on how the U.S. Supreme Court’s new conservative majority will approach the rights of the LGBT community.

If you believe you have been or are being discriminated against at your job because of your sexual orientation, you should discuss your circumstances with an attorney who can advise you of your legal rights which, until the Supreme Court rules definitively, may be different depending on your location. Please let us know if we can help.