5th Circuit: Title VII Does Not Protect Sexual Orientation, Which Includes Heterosexual Orientation


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April 19, 2019


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In O’Daniel v. Industrial Service Solutions, the 5th Circuit Court of Appeal reaffirmed its position that sexual orientation is not a protected class under Title VII of the Civil Rights Act, including heterosexual orientation. Specifically, “’[s]ex’ discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping,” but does not include sexual orientation.

There, an HR manager posted to her personal Facebook account a picture of a man in a dress shopping at Target and objecting to his ability to use female facilities with the employee’s daughters. When her supervisors, one of whom is a member of the LGBTQ community, became aware of the post, they attempted to terminate her employment, but ultimately disciplined her. Subsequently, the employee claimed, in part, she was subject to discrimination and retaliation by her supervisor following the Facebook post, because she was heterosexual and she opposed discrimination on the basis of her heterosexual orientation.

The court stated that because sexual orientation is not protected under Title VII, opposing her alleged discriminatory treatment as a heterosexual was not a protected activity.

Action Items

  1. Have discrimination policies reviewed for consistency with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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