(Reuters) - 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 last week 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 (2018 WL 2665585) 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. (O’Daniel at first represented herself but was later advised by Baton Rouge employment lawyer J. Arthur Smith.)
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.)
The scope of Title VII protection for gay and lesbian employees, as you know, is in flux in the appellate courts. Last year, the 7th Circuit broke with most of the other circuits in its en banc decision in Hively v. Ivy Tech (853 F.3d 339), which held that under U.S. Supreme Court precedent, discrimination on the basis of sexual orientation is a form of sex discrimination and is therefore encompassed by federal anti-discrimination law. The 2nd Circuit is right now reconsidering, en banc, its precedent on the question in Zarda v. Altitude Expressions.
But last December, the Supreme Court rejected its first invitation to decide whether Title VII shields LBGTQ employees when it denied review in Evans v. Georgia Regional Hospital (2017 WL 4012214), in which the 11th Circuit said the federal civil rights law does not address workplace discrimination based on sexual orientation.
O’Daniel’s case hints at a backlash if the LGBTQ community ultimately succeeds in persuading the Supreme Court – or Congress – to protect employees on the basis of sexual orientation. I’m sure she won’t be the last heterosexual to claim discrimination by a gay or lesbian boss, and presumably some of them will offer more compelling stories than O’Daniel’s allegations. But until gay and lesbian workers win protection under the law, straight people probably can’t allege reverse discrimination in circuits that don’t shield LGBTQ employees.
I left phone messages for O’Daniel lawyer Smith and ISS counsel Timothy Scott but didn’t hear back.