By: Thalia Olaya
Title VII protects employees from discrimination based on five protected characteristics: race, color, religion, sex, or national origin.[1] One characteristic that Title VII does not recognize to be legally protected, however, is sexual orientation.[2] Federal courts have grappled with the question of whether or not sexual orientation claims are cognizable under Title VII.[3] The Supreme Court, however, continues to remain silent on this issue.[4] This silence has led some states, including New York, to pass their own laws that do prohibit discrimination on the basis of actual or perceived sexual orientation in employment.[5]
It is no surprise that due to all of this legal uncertainty, federal courts continue to grapple with an additional question related to sexual orientation discrimination – can a heterosexual employee bring a reverse discrimination or retaliation claim against a lesbian, gay, transgender, or queer (“LGBTQ”) boss?[6] On January 2, 2018, in O’Daniel v. Indus. Serv. Sols, a federal district court in Louisiana answered this question.[7]
In this case, Bonnie O’Daniel posted a picture on Facebook that she had taken of a man wearing a dress at Target along with a message stating: “[s]o 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.”[8] O’Daniel’s suit alleged that she was fired soon after her supervisor, a member of the LGBTQ community, saw the post.[9] In other words, O’Daniel claimed that she had been unlawfully terminated for being a heterosexual woman and thus, validly asserted a claim under Title VII.[10]
In rejecting O’Daniel’s reverse sexual orientation discrimination claim, Judge Bourgeois noted that O’Daniel attempted to “couch her retaliation claim in terms of ‘sex discrimination,’ [but] she [was] in fact proposing to allege a claim for retaliation under Title VII. . . .”[11] Judge Bourgeois pointed out two additional reasons why O’Daniel’s claim failed: (1) even if sexual orientation discrimination was protected under Title VII, O’Daniel didn’t show that she was terminated because of her sexual orientation; and (2) the court was bound by the Fifth Circuit’s consistent rulings that Title VII does not protect employees from employment discrimination based on sexual orientation.[12]
In sum, until the Supreme Court or Title VII decides to protect employees from sexual orientation discrimination, sexual orientation claims, including reverse sexual orientation, will remain a question that courts will wrestle with. In the meantime, it is likely that “straight people” will be precluded from successfully bringing reverse discrimination claims – at least in state courts and federal courts that don’t protect LGBTQ employees.
[1] 42 U.S.C.A. § 2000e-2 (West 2017).
[2] Id.
[3] Compare Zarda v. Altitude Express, 855 F.3d 76, 82 (2d Cir. 2017) (rejecting plaintiff’s argument that Title VII’s prohibition on sex discrimination also protected sexual orientation discrimination), with Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 351-52 (7th Cir. 2017) (disagreeing with other circuits and holding that plaintiff alleging employment discrimination on the basis of her sexual orientation was protected under Title VII’s prohibition of sex discrimination).
[4] See Greg Stohr, U.S. Supreme Court Turns Away Sexual Orientation Bias Case, Bloomberg Pol. (Dec. 11, 2017, 9:31 AM), https://www.bloomberg.com/news/articles/2017-12-11/sexual-orientation-bias-case-turned-away-by-u-s-supreme-court.
[5] N.Y. Exec. Law § 296 (McKinney 2017). Under the New York State Human Rights Law, New York defines sexual orientation to include “heterosexuality, homosexuality, bisexuality or asexuality whether actual or perceived.” Id.
[6] O’Daniel v. Indus. Serv. Sols., No. 17-190-RLB, 2018 WL 265585, at *2–3 (M.D. La. Jan. 2, 2018).
[7] Id.
[8] Id. at *1 n.1.
[9] Id. at *1.
[10] Id. at *6 (noting plaintiff’s belief that the alleged employment discrimination based on her heterosexual sexual orientation was prohibited under Title VII as a form of sex discrimination).
[11] Id. at *7 (“It is [] unreasonable for Plaintiff to believe that discrimination based on sexual orientation constitutes protected activity.”).
[12] Id.
The L•E•Jer 