Tag: Title VII

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Let’s meet employees where they are on their pronouns

diversity, gender

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students’ preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school’s discipline for his misgendering.

The plaintiff, Nicholas Meriwether, a philosophy professor at Shawnee State University and a devout Christian, challenged the school’s decision to discipline him for violating a policy that instructors were to use a student’s preferred pronouns after a student accused him of refusing to properly identify her as a woman or with she/her pronouns. Meriwether claimed the policy violated his First Amendment free-speech and religious freedoms. The 6th Circuit agreed enough to re-institute his claim.

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

Unless you are a public employer governed by the Constitution and the First Amendment protections it guarantees, Meriwether has limited applicability to your workplace, your rules and your employees. Moreover, after Bostock v. Clayton County, it’s likely a Title VII violation to intentionally misgender an employee.

Nevertheless, legal or illegal, Meriwether can teach us some important lessons about meeting employees where they are. Here are some things to think about regarding gender, pronouns, and your employees.

1. Educate yourself about the use of pronouns. When I went to school I learned that “he” refers to a singular male, “she” to a singular female,” and “they” to plural wo/men. That is no longer the case. A man can identify as “she” and a female as “he,” and they/them pronouns are used for individuals who identify as non-binary, gender-fluid, or whoever chooses to use them.

2. Do not assume what pronouns your employees use. Just because someone presents a particular way doesn’t mean they their pronouns fit match that presentation.

3. If you’re unsure, ask. Your employees who use alternate pronouns will be more than happy to help you.

4. Avoid gendered language. For example, use “y’all” instead of “you guys” and “everyone” or “people” instead of “ladies and gentlemen” or “men and women.”

More to the point, if you insist that you must refer to someone born with a Y chromosome as “he” and two X chromosomes as “she,” why do you care? If an employee identifies as female (regardless of whether she was born a male), why do you care what pronoun she uses?

This issue is nothing more than a solution in search of a problem. You are doing way more harm to the mental well-being of your employees if you misgender them than you are doing to other employees by having them rethink how they use pronouns.

Any other answer to this issue is bigotry, period. And, in 2021, we should be well beyond bigotry of any kind.

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CDC allows large employers to establish vaccination sites

COVID-19, vaccine, flu

The CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.

The CDC on March 16 said that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.

Employers should consider pushing employees to off-site vaccination clinics if they have a smaller number of employees, employees with flexible or non-predictable schedules, mobile employees who don’t have one worksite, or employees who’d prefer not to have their employer administer their vaccine.

Employers who choose to set up a vaccination site still must follow the EEOC’s guidelines on managing vaccines under the ADA, Title VII, and GINA (which I summarized here).

Bravo to the CDC for implementing policies to encourage as many employees to get shots in their arms as quickly as possible. It’s the only way we are going to stay ahead of the more contagious (and perhaps more deadly) variants and beat this pandemic. To this end, I highly recommend that you check out the CDC’s COVID-19 Vaccine Communication Toolkit for Essential Workers, in addition to these 5 tips on building vaccine confidence in your workplace:

  • Encourage your leaders to be vaccine champions. These leaders should reflect the diversity of the workforce. Invite them to share with staff their personal reasons for getting vaccinated and remind staff why it’s important to be vaccinated.
  • Communicate transparently to all workers about vaccination. See Key Things to Know, Frequently Asked Questions, and Myths and Facts for up-to-date information.
  • Create a communication plan. Share key messages with staff through breakroom posters, emails, and other channels. Emphasize the benefits of protecting themselves, their families, co-workers, and community. This fact sheet is available in numerous languages.
  • Provide regular updates on topics like the benefits, safety, side effects, and effectiveness of vaccination; clearly communicate what is not known.
  • Make visible the decision to get vaccinated and celebrate it! Provide stickers for workers to wear after vaccination and encourage them to post selfies on social media.

Now please do your family, friends, coworkers, me, and society in general a huge favor and get vaccinated as soon as your state allows you to do so. We are all counting on you.

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Tread carefully if offering employees financial incentives to get the COVID-19 vaccine

COVID-19, vaccine, flu

To a nation waiting for action, let me be clearest on this point: Help is on the way.

Those were the words of President Biden in announcing the ordering of 200 million additional COVID-19 vaccine doses, a hike in the distribution of doses to states, and a promise that there will be enough doses to fully vaccinate 300 million Americans by the end of summer.
It’s an ambitious plan, but it’s what we need to end a pandemic that has already claimed the lives of more than 425,000 Americans and will claim hundreds of thousands more before we close the book on COVID-19.
Vaccines, however, only work if people actually accept syringes in their arms. Too many of us say that they won’t.
According to one recent survey, 39 percent of Americans say that they either probably or definitely will not get the COVID-19 vaccine when it becomes available to them. Another survey pegs the number at 37 percent. While these percentages are trending down, and more of us say that we trust the vaccine and will get it, the needle on this issue isn’t moving quickly enough. According to Dr. Fauci, to reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated.
To overcome this vaccine hesitancy, some employers are offering their employees a financial incentive to obtain the COVID-19 vaccine when it becomes available. Retailers such as Trader Joe’s, Dollar General, and Instacart are offering small incentives such as a couple of hours of additional paid time off, or nominal (e.g., $25) stipends. Nursing homes, whose employees come in contact with our most vulnerable population, are offering similar incentives to their workers. Others are offering free marijuana (full disclosure: they are marijuana dispensaries).
If you are considering offering a financial incentive to entice your employees to obtain the vaccine when it’s available to them, I caution you to tread carefully to make sure that you do it within the bounds of our equal employment opportunity laws.
1. Vaccination rules must have exceptions for employees’ disabilities under the ADA and employees’ sincerely held religious beliefs under Title VII. For this reason, if you are offering employees a financial incentive to get vaccinated, you better be prepared to offer the same exact incentive to those who cannot get vaccinated because of one of these legally protected reasons.
2. Incentive programs must comply with the EEOC’s wellness program regulations. Admittedly, these regulations will not be final until March 8.
Given that COVID-19 vaccinations will stretch for months beyond that date, however, employers should be aware of these rules and the risks they pose. Under these proposed and soon to be final rules, employers may not offer any more than a “de minimis incentive” to encourage employees to participate in a wellness program such as one that incentivizes the receipt of the COVID-19 vaccine.
The EEOC does not define “de minimus,” but uses the example of a water bottle or a gift card of modest value as “de minimus” and a $50 per month reduction in annual health care costs, paying for an annual gym membership, or an airline ticket as “not de minimus.”

Employers are considering bribes because they work. We just need to make sure that we are doing so within the confines of the law. We don’t want to solve one problem only to create another.

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Does Title VII protect employees whose spouses are pregnant?

maternity, paternity, pregnant, baby
A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife’s pregnancy.
According to Steven Van Soeren’s complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife’s pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)
The Pregnancy Discrimination Act (enacted in 1978) amended Title VII’s definition of “sex” to make clear that it also includes “pregnancy, childbirth, or related medical conditions.” Disney is now arguing that Van Soeren’s lawsuit should be dismissed because Title VII doesn’t protect a male employee because of his wife’s pregnancy. Yet, the statute does not say “a woman’s pregnancy”; the definition is gender-neutral. Thus, Disney has an uphill battle to establish that the Pregnancy Discrimination Act doesn’t equally cover dads as moms.
Further, consider the following passage from Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County—

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.

Bostock says very clearly that an employer discriminates on the basis of sex if “changing the employee’s sex would have yielded a different choice by the employer.” Would Disney have made the same decision relating to a woman’s choice to have a child, or did it rely on outdated and illegal stereotypes about a man’s role as a provider instead of a caregiver? It’s doubtful, based on the comments Van Soeren claims his supervisors made after they learned of his wife’s pregnancy.
Bostock leaves open a lot of questions: Can religious employers claim an exemption from Title VII’s prohibition against LGBTQ discrimination, and if so, how broadly?
Does Title VII’s prohibition against LGBTQ discrimination moot the Trump Administration’s plan to roll back protections for transgender people from discrimination in health care and insurance coverage? Add to this list the question of just how broadly Bostock’s causation standard will apply, and if it applies to other forms of sex discrimination such as pregnancy discrimination?
I believe it does, and I believe Disney will lose its effort to have Van Soeren’s lawsuit dismissed.
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Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long­time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but­-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.

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Does Title VII protect veganism as a religion?

A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:

An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.

That’s the United Kingdom. What about the United States? Well, it depends.

There are two leading cases on this issue.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2012), the federal court denied the hospital’s motion to dismiss the employee’s religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira—a customer service representative who refused a flu vaccine because it contained animal by-products—cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation. In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

Contrarily, in Friedman v. Southern California Permanente Medical Group (Cal. Ct. App. 2002), the state appellate court dismissed the religious discrimination claims of a vegan IT worker who refused a mumps vaccine for similar reasons as Chenzira. He claimed the vaccine “would violate his system of beliefs and would be considered immoral by him,” which resulted in the withdrawal of his employment offer. The court concluded that veganism is not a protected religion:

We do not question plaintiff’s allegation that his beliefs are sincerely held; it is presumed as a matter of law that they are.… There is no allegation or judicially noticeable evidence plaintiffs belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith. There is no apparent spiritual or otherworldly component to plaintiffs beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.

In other words, while his beliefs are sincerely held, they are moral beliefs, and therefore secular and not religious.

To answer my question on how U.S. courts would view this issue, it depends on the jurisdiction in which your business is located, and perhaps whether the employee’s beliefs are grounded in spiritualism or personal morals.

These cases also raise a more fundamental question — how far should businesses go to accommodate employees’ requests for special treatment. To me, sometimes, the path of least resistance makes the most sense.

For a hospital, there may not be a path of least resistance when comes to public health issues such as vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Possibly. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Likely.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How you incorporate those other factors into your accommodation decision-making is often more important than simply answering the underlying legal question.

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#MeToo Does Not Always Equal #FireHim

Jon Hyman The Practical Employer

Just because an employee complains about harassment does not mean that if the allegations are founded the employer must fire the harasser.

Consider, for example, Abbood v. Texas Health & Human Servs. Comm. (5th Cir. 11/7/19).

Amanda Abbood, an employee of the Texas Health & Human Service Commission, complained to her supervisor that a co-worker, Matt Otts, had subjected her to sexually offensive and unwelcome conduct, including comments about her figure, discussing his marital problems and describing “movies on Netflix that have a highly sexual connotation.” When confronted, Otts admitted to the misconduct, but claimed he was just joking. Instead of firing Otts, the employer reprimanded him, counseled him, reassigned him to another unit and relocated his office away from Abbood.

Four months later, however, Abbood again complained about Otts, this time that he told her he wanted to “jump her bones.” This time, the employer immediately removed Otts from the building, placed him on emergency leave, and changed the office locks. After completing its investigation, the employer then fired Otts.

Abbood’s second complaint about Otts occurred the same day as she suffered her own workplace issue. She discovered a stray dog outside the office, and used the commission’s computer database to try to locate the owner. The employer fired Abbood for the inappropriate use of its data system, in violation of its Computer Use Agreement and a Data Broker Computer Security Agreement.

Abbood, however, alleged that she was fired because of her complaints about Otts, and that the employer acted inappropriately by not firing Otts after the first harassment investigation. The 5th Circuit Court of Appeals, however, disagreed.

HHSC is not liable under Title VII if it took “prompt remedial action” once it knew of Otts’s harassment. Abbood argues that Otts should have been fired when she first reported him in August 2016, and that HHSC’s response was ineffective because he harassed her again in December. But an employer “need not impose the most severe punishment” on an offending employee, so long as the remedial action is “reasonably calculated” to end the harassment. And [t]o be reasonably calculated to end the harassment, an employer’s actions need not end the harassment instantly.” “The test … is not whether the harassment stopped but whether the action taken by the employer was reasonably calculated to end the harassment.”

Here, the record reflects that HHSC took prompt remedial action.… When … Abbood complained a second time, Otts was immediately placed on emergency leave, the office locks were changed, and he was subsequently fired. These facts demonstrate that HHSC took prompt remedial action.

An employer’s obligation in responding to a harassment complaint is to investigate and, as the court points out, take “prompt remedial action” to reasonably ensure that the harassment stops. If it doesn’t stop (as was the case here), then remedial action must become more severe (as the employee didn’t get the message the first time).
For a first instance of harassment, however, while termination is a remedial option, is is not the only remedial option. As long as the employer acts reasonably and promptly under the circumstances, a court likely will not second-guess the employer’s handling and response.
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Why ‘Ban the Box’ Doesn’t Work for Employers or Employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Last month, the 5th Circuit Court of Appeals upheld an injunction which blocked the EEOC’s guidance on criminal background checks is unlawful, and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which in that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because African-Americans and Hispanics are incarcerated at a rate significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly labeled after the “box” applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted these laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated in the Ear Hustle clip above, all that “ban the box” accomplishes is moving the criminal background check from the application stage to the formal background check stage. Employers that are pre-disposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes; they are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for Caucasians, while making them worse for African-Americans and Hispanics.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

    1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.
    2. Tax credits to incentivize businesses to hire these felons.
    3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).
We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.
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What Sex Discrimination Will Look Like if the DOJ Legalizes Sex Stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

I’m a 21 year old female. I feel like I should say these thing about myself because these are usually what people ask or say when they find out I rarely shave my legs. I’m straight, I’m very feminine, and I just don’t like to waste my time or money on shaving my legs. Also I’m not a hairy person at all! …

[T]oday I had to go into the office to grab some materials and my boss was there in his office so I stopped to say hi before I left out. …

My boss then proceeded to tell me that a few people complained I didn’t shave my legs and they said it went against company policy that I wasn’t being hygienic. I was even more shocked.

I cannot fathom a Title VII under which an employer can enforce a workplace rule prohibiting hairy legs against women but not men. Yet, that’s the world in which we might live if the Supreme Court legalizes “sex stereotyping.”

The DOJ argued in its brief that “sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” and that it “does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” Otherwise, says the DOJ, “countless sex-specific policies would be per se unlawful as based on sex stereotypes, “ such as a “dress code that required men to wear neckties.”

But isn’t that the very point of prohibiting sex-based stereotypes at work. The stereotype itself is the “evidence of favoritism of one sex over the other.” It is the proof that the employer “treated members of one sex less favorably than similarly situated members of the opposite sex.”

Also read: #MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

An employer that prohibits women, but not men, from wearing neckties is acting on a sex-based stereotype that a necktie is men’s attire, and not women’s attire. Similarly, an employer who requires women to shave their legs, while letting men grow it au naturel, acts on a sex-based grooming stereotype for no reason other than gender. The application and enforcement of a sex-based stereotype to the detriment of one sex over another is the “evidence of favoritism of one sex over the other.” No other proof should be necessary.

I am hopeful that the Supreme Court does right by LGBTQ employees and holds that Title VII’s prohibition against sex discrimination implicitly covers LGBTQ discrimination. If, however, these cases go the other way, I pray that the Court does not take the DOJ’s bait and rewind women’s rights by five or six decades.

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Does Title VII Protect Heterosexuals From Discrimination?

Jon Hyman The Practical Employer

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

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.

Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The court held that under its own precedent, O’Daniel could not move forward on her claim.

O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”

If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.