Heterosexual employees can’t claim reverse discrimination when federal law doesn’t shield gays, lesbians – judge
As advocates for LGBTQ employees push to reverse appellate rulings that they’re not protected against workplace discrimination on the basis of sexual orientation, a Louisiana federal judge held that a heterosexual employee who was fired after she posted an anti-LGBTQ comment on Facebook cannot claim reverse discrimination or retaliation at the hands of her LGBTQ boss. The scope of protection under Title VII of the Civil Rights Act, it would seem, cuts two ways. U.S. Magistrate Judge Richard Bourgeois of Baton Rouge dismissed a suit by Bonnie O’Daniel, a former office administrator for Industrial Service Solutions (ISS), which provides manufacturing equipment repair and maintenance services. In April 2016, O’Daniel posted on Facebook a photo she said she took in the women’s swimsuit department at a local Target. The photo appeared to show a man in a dress, looking through racks of bathing suits. O’Daniel’s accompanying text said, ““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.” O’Daniel claimed that after a supervisor saw the post, she was disciplined and eventually fired. Her suit alleged the supervisor, whom she had never met, is “a member of the LGBT community and had personally taken offense to the post.” O’Daniel’s suit said she was fired because she is a heterosexual woman, asserting a violation of her freedom of speech under the Louisiana Constitution and of her rights under Title VII. In a motion to dismiss, ISS lawyers from Fisher Phillips argued that O’Daniel was, in effect, alleging discrimination based on her sexual orientation – albeit as a heterosexual. That claim, ISS said, is not viable in most federal circuits, including Louisiana’s 5th U.S. Circuit Court of Appeals, because most of the circuits have held Title VII’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation. Judge Bourgeois sided with ISS, pointing out that the 5th Circuit has specifically ruled Title VII does not bar employers from firing employees on the basis of sexual orientation. “It is unreasonable for (O’Daniel) to believe that discrimination based on her status as a married, heterosexual female constitutes discrimination on the basis of her sex,” the judge wrote. “It is similarly unreasonable for (O’Daniel) to believe that discrimination based on sexual orientation constitutes protected activity. Based on the foregoing, the court finds no basis for concluding that (O’Daniel) engaged in protective activity and/or was reasonably concerned that she engaged in protective activity.” (The judge also rejected O’Daniel’s freedom of speech theory, citing Louisiana’s at-will employment doctrine.