Monday, January 14, 2019

What's good for the goose? "Reverse" LGBTQ discrimination


If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?

Bonnie O'Daniel claims that her employer, Industrial Service Solutions, fired her because she posted to her personal Facebook page a photo of a man in a dress at a Target store, and commented on his ability to use the women's restroom or dressing room. O'Daniel further claims that because her employer's president, Cindy Huber, a member of the LGBTQ community, ad took offense to the Facebook post, the termination is sex discrimination on the basis of O'Daniel's sexual orientation (heterosexual).

The district court dismissed O'Daniel's discrimination claim:

Furthermore, even if Title VII did offer protection regarding sexual orientation discrimination, Plaintiff does not allege, or propose any allegations, indicating that Defendants terminated her because of her sexual orientation. At most, Plaintiff alleges that Ms. Huber was offended by Plaintiff's Facebook post posting, and ultimately directed Plaintiff's termination. Plaintiff does not specifically allege any instances in which Ms. Huber or any of the other Defendants discriminated against Plaintiff on the basis of her being a "married, heterosexual female" or otherwise made any references to her sex or sexual orientation in connection with her termination. 

This case is currently on appeal to the 5th Circuit, which, pending Supreme Court review, will have the final say on this case.

Two points to make:

  1. If we assume that Title VII covers LGBTQ discrimination, then it must offer the same anti-discrimination protections to heterosexuals as it does to members of the LGBTQ community. Unlawful discrimination is unlawful discrimination, period. And, if we are going to protect LGBTQ individuals from discrimination, then we (and they) should expect that they also cannot discriminate against non-LGBTQ employees because of their (non-LGBTQ) sexual orientation or gender identity.

  2. Just because Title VII protects against LGBTQ discrimination does not mean that Title VII recognizes every offense suffered by someone who is not LGBTQ at the hands of someone who is. We understand that Title VII, for example, protects whites from discrimination at the hands of African Americans. Race discrimination, however, is race discrimination, regardless of the race of employee claiming discrimination. But, that fact does not mean that a white employee can publicly question inter-race bathrooms and expect to keep his or her job. In other words, just because Title VII offers the protection does not mean it protects the underlying conduct at issue here.

The 5th Circuit heard oral argument last week, and I will be certain to update everyone on this case after it hands down its opinion.

* Photo by geralt on Pixabay

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