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Fifth Circuit To Consider Claim Of “Reverse” Sexual Orientation Bias

On January 11, 2019, the Supreme Court will consider whether to take any one of three cases that may clarify whether Title VII’s prohibition on discrimination based on sex includes discrimination against LGBT applicants and employees.  At the same time, a heterosexual woman in Louisiana is trying to convince a federal appeals court that she was discriminated against because of her heterosexual orientation when she was fired by a gay supervisor, allegedly in retaliation for a negative Facebook post regarding transgender people.

Bonnie O’Daniel worked as a human resource manager for Industrial Service Solutions, Inc. O’Daniel alleged that her employment was terminated because she posted on her Facebook page a photograph of a man wearing a dress at a Target store and commented on his ability to use the women’s restroom and/or dressing room with her daughters.  Basically, O’Daniel disagreed with male-to-female transgender people using women’s bathrooms.  She used disparaging language and suggested transgender people could be dangerous.  O’Daniel alleges that a supervisor, a member of the LGBT community, was offended by the Facebook post and suggested her termination.  O’Daniel claims that she was fired after stating her intent to file an internal complaint of harassment because of her heterosexual orientation.

O’Daniel filed a pro se complaint in federal district court.  The complaint was amended twice, and the district court determined that she had abandoned many of her hodge-podge of claims.  On the retaliation claim, however, the district court found that O’Daniel had not engaged in activity protected by Title VII, because she could not have reasonably believed that bias based on sexual orientation was prohibited by Title VII.  The court cited Fifth Circuit precedent, from 1979, that held “discharge for homosexuality is not prohibited by Title VII.”  Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).    Furthermore, the court noted, [n]othing in Plaintiff’s proposed allegations support a finding that she is seeking to allege that she faced discrimination on the basis of gender non-conformity, which may constitute sex-based discrimination.”

O’Donnell appealed to the Fifth Circuit, and she is backed by the EEOC and ACLU.  The appeal urges the Fifth Circuit to reconsider its prior decisions and follow the Second and Seventh Circuits, which have ruled that sexual orientation bias is illegal under Title VII.

You can find the district court’s opinion here:  https://law.justia.com/cases/federal/district-courts/louisiana/lamdce/3:2017cv00190/51007/39/.

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