Do heterosexuals have Title VII rights? Part Two.

By: Robin Shea

May 03, 2019

Court says no, in one of the weirdest cases ever.

In January, I blogged about the very strange case of O'Brien v. Industrial Service Solutions.

The plaintiff was a Human Resources Manager who saw a transgender woman in the dressing room while she was shopping at a major retail outlet. She posted a rant on Facebook that wasn't very . . . politically correct.

(I am being diplomatic. It was awful. You can read it at the link, above.)

Her bosses found out about the post, and as a result she fell out of favor at work. She eventually was fired, and she claimed -- among other things -- that she was retaliated against for opposing discrimination against heterosexuals.

(In my opinion, her "opposition to discrimination against heterosexuals" had nothing to do with her termination, even if you believe the facts that she alleged in her lawsuit. She was fired because she was an HR professional who posted an inappropriate Facebook rant, and her co-workers and bosses were offended, and then she didn't get her mandatory sensitivity training quickly enough to suit her employer.)

Anyway, her "heterosexual retaliation" claim was brought under Title VII of the Civil Rights Act of 1964. And in support of her claim, she cited federal cases saying that sexual orientation discrimination violates Title VII.

(As you know, the Supreme Court has agreed to review that issue in its next term.) 

The only problem was that, in Ms. O'Daniel's own jurisdiction, the courts say that sexual orientation discrimination does not violate Title VII. So a federal magistrate in Louisiana dismissed her lawsuit, and she appealed to the U.S. Court of Appeals for the Fifth Circuit. 

And here's where the case gets even weirder: The Equal Employment Opportunity Commission and the American Civil Liberties Union, among others, filed amicus curiae (friend of the court) briefs taking her side. Sort of.

They did? After that Facebook post?

Yes, they did. Here's why:

  • They wanted to get a ruling from the Fifth Circuit that sexual orientation discrimination violates Title VII. (That would presumably include "reverse sexual orientation discrimination" -- in other words, discrimination against people for being heterosexual.)
  • They also wanted to persuade the Fifth Circuit that -- even if Title VII doesn't prohibit sexual orientation discrimination -- it was a close enough call that an employee who opposes discrimination on that basis should have a valid retaliation claim under Title VII.

In other words, the EEOC and the ACLU were taking the long view.

A three-judge panel of the Fifth Circuit has now issued its decision (many thanks to my law partner Bill McMahon, who alerted me), and agreed with the magistrate that the lawsuit should have been dismissed.

First, the majority reiterated that, in the Fifth Circuit at least, sexual orientation discrimination does not violate Title VII. (The Eleventh Circuit agrees. The Second and Seventh Circuits do not agree.)

Second, the majority ruled that Ms. O'Daniel couldn't assert a retaliation claim based on her "reasonable" mistaken belief that sexual orientation discrimination violated Title VII. The EEOC had argued that in 2016, when Ms. O'Daniel got in trouble with her employer, she could have reasonably believed that Title VII prohibited sexual orientation discrimination. The EEOC had said so in 2015, and the Supreme Court was giving encouraging vibes in its same-sex marriage decisions in U.S. v. Windsor and Obergefell v. Hodges.

But the majority was having none of it. As Judge Edith Jones, writing for the majority, said, "[I]t is not 'reasonable' in the Fifth Circuit to infer that Title VII embraces an entirely new category of persons protected for their sexual orientation." (Emphasis added.)

Reasonable mistaken belief would apply when, for example, an employee reports behavior as "sexual harassment" that really isn't severe or pervasive enough to qualify. Because sexual harassment is prohibited by Title VII, and because what is "severe or pervasive" can be a gray area, the employee gets the benefit of the doubt. If the employer takes adverse action against her for complaining about "sexual harassment," she could have a viable retaliation claim under Title VII even if her underlying complaint was not well founded.

By contrast, the court majority said, Ms. O'Daniels was arguing that "it is 'reasonable' to assume that the law is not what it is."

And even though the EEOC argued that sexual orientation under Title VII was a developing area of the law in which mistakes might be made, the court agreed with one of the defendants that it doesn't make sense "to be knowledgeable about the 'uncertain' state of federal law throughout the circuit courts . . . but ignorant about what this court has held."

Judge Catharina Haynes concurred, agreeing that the lawsuit was properly dismissed but saying that she would not have waded into the sexual orientation/Title VII issue at all. In her view, the lawsuit could have been dismissed solely on the ground that there was "no reasonable inference that [Ms. O'Daniel] was fired for any reason other than her Facebook post."

No disagreement there.

NOTE: In a jurisdiction where the courts have said that Title VII does prohibit sexual orientation discrimination, an employee could have a viable claim of Title VII retaliation based on a complaint that heterosexuals were being discriminated against.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.