Labor & Employment

Neither gay nor straight workers can claim sex-orientation discrimination, federal judge rules

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Since courts have found that Title VII of the Civil Rights Act does not prevent employers from firing LGBT employees based on sexual orientation, heterosexual workers also have no “reverse discrimination” protection under the law, a Louisiana federal magistrate found.

The lawsuit was brought by Bonnie O’Daniel, a human resources manager who was disciplined and eventually fired after posting a photo of a man wearing a dress and shopping in the Target women’s clothing section, Reuters reports.

“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, who is in a heterosexual marriage, reportedly wrote in text that accompanied the photo.

She claimed that a supervisor who was “a member of the LGBT community” saw the post and found it offensive, which led to her getting fired from Industrial Service Solutions, a manufacturing equipment repair and maintenance services company.

Defense attorneys argued that the New Orleans-based 5th U.S. Circuit Court of Appeals and other federal circuits have held that Title VII’s prohibition on sex discrimination does not include discrimination related to sexual orientation.

Judge Richard Bourgeois, a federal magistrate, agreed. His Jan. 2 order does note Price Waterhouse v. Hopkins—the 1989 U.S. Supreme Court case that found discrimination based on gender nonconformity may amount to sex-based discrimination—but he wrote that nothing in the record argues that O’Daniel was fired because she was gender-nonconforming.

“It is unreasonable for plaintiff to believe that discrimination based on her status as a married, heterosexual female constitutes discrimination on the basis of her sex. It is similarly unreasonable for plaintiff to believe that discrimination based on sexual orientation constitutes protected activity,” the order (PDF) states.

Reuters notes that the Chicago-based 7th Circuit in 2017 found that discrimination on the basis of sexual orientation is a form of sex discrimination and is prohibited by Title VII. However, also in 2017, the U.S. Supreme Court denied a cert petition from the Atlanta-based 11th Circuit, where it was found that Title VII does not prohibit discrimination based on sexual orientation. Additionally, an en banc appeal regarding sexual orientation discrimination and federal law is pending in the New York-based 2nd Circuit, according to Reuters.

Hat tip to How Appealing.

Corrects to Title VII in first paragraph at 8:12 a.m.; adds locations of 2nd, 7th and 11th U.S. Circuit Courts in last paragraph at 8:14 a.m. and 9:14 a.m.

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