Heterosexual Worker Loses Sexual-Orientation Claim

Employee fired after Facebook posting of a photo of a man in a dress

By Michael D. Malone March 19, 2018
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​A heterosexual, female former employee lost her claim that she was fired over her Facebook posting of a photograph of and comments about a man in a dress because of her sexual orientation, in violation of Title VII of the Civil Rights Act of 1964. The U.S. District Court for the Middle District of Louisiana ruled that Title VII does not prohibit sexual-orientation discrimination and that even if it does, she hadn't proved such bias.

On Facebook, the plaintiff commented about the man's ability to use the same store restroom and dressing room as her daughters and claimed her termination was in response to the posted photo and remark. She connected her sexual-orientation discrimination theory to her allegation that the president of the parent company, which owns the subsidiary for which she worked, is a member of the lesbian, gay, bisexual and transgender community and saw her post and wanted her fired.

The plaintiff contended that her employer discriminated against her based on her status as a married, heterosexual female, which she couched as a sex-discrimination claim. The court rejected the plaintiff's retaliation claim and stated that she had not engaged in any type of protected conduct.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Citing 5th U.S. Circuit Court of Appeals case law (Louisiana is in the 5th Circuit), the court found that sexual-orientation discrimination is not actionable under Title VII. Even if, for the sake of argument, Title VII prohibits sexual-orientation discrimination, the court found that her allegations did not support her claim because they did not show that she was terminated because of her sexual orientation.

O'Daniel v. Industrial Service Solutions, M.D. La., No. 17-190 (Jan. 2, 2018).

Professional Pointer: There is presently a split among the federal appeals courts over whether Title VII prohibits discrimination based on sexual orientation. While the Supreme Court ultimately may resolve the split, the court declined in December 2017 to hear an appeal of an 11th Circuit decision holding that sexual orientation is not protected under Title VII.

Michael D. Malone is an attorney with Malone, Thompson, Summers & Ott, LLC, the Worklaw® Network member firm in Columbia, S.C.

 

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