A Human Resource Manager (Plaintiff) for Industrial Services Solutions alleged she was fired for writing a Facebook post voicing her personal concern against Target's policy allowing transgender individuals to use restrooms according to their gender identity. She apparently did this on her own time and on her personal social media.
However, the post was shared with the President and Vice President of the Company for which she worked. The President, who is a member of the LGBT community took offense and wanted to fire her immediately.
Instead, the President of the company required her to take sensitivity and diversity training and refrain from recruiting for the company on any social media platform- a stance that the Plaintiff, given her role in the company, felt was completely inappropriate. Additionally, she was placed under the direct supervision of the President, whom she alleges began creating a hostile work environment in an attempt to micromanage her out of the company.
Plaintiff was indeed eventually fired. Plaintiff filed suit against her Company [in Middle District of Louisiana, part of the 5th Circuit]:
Industrial Service Solutions ("ISS") and Plant-N Power Services ("PNP") which was the former subsidiary. She also included as Defendants in the suit the Vice President of ISS, Tex Simoneaux, Jr. ("Simoneaux"), and the President of ISS Cindy Huber ("Huber").
The legal claims cited in violation of her firing included: a Title VII Retaliation claim, the Plaintiff's sexual orientation [heterosexual] and the President's reaction to the Plaintiff's public pro-heterosexual speech.
The District Court dismissed the claims because of a "failure to state a cause for which relief can be granted" as Title VII does not prohibit sexual orientation discrimination. The 5th Circuit Court of Appeals affirmed.
Title VII, on its face, prohibits discrimination because of
race, color, religion, sex, or national origin. While other circuits' decisions may have expanded Title VII to include sexual orientation, the 5th Circuit has not recognized sexual orientation as a protected class included in Title VII. The Supreme Court is expected to resolve this circuit split in its upcoming term which starts in October.
There are several "take aways" for employers: be mindful in making employment decisions based upon an employee's actions or conduct "off duty." Many states do have strong off duty conduct laws protecting what an employee does on their own time, with their own resources. Employers need to also be mindful of what circuit court they are in to determine any risk in sexual orientation claims. Even in circuits where sexual orientation is not recognized, such as the 5th circuit, the EEOC overall has voiced a strong opinion for inclusion of sexual orientation in Title VII.