A heterosexual HR manager fired after writing an angry Facebook post against Target’s policy of allowing transgender individuals to use restrooms according to gender identity could not state a discrimination or retaliation claim, the 5th U.S. Circuit Court of Appeals ruled.
The plaintiff began working in the Louisiana office of Plant-N-Power Services Inc. (PNP) in 2013 as PNP’s human resources manager. PNP merged with Industrial Service Solutions (ISS).
On April 22, 2016, the plaintiff wrote on Facebook, “For all of you people that say you don’t care what bathroom it’s using, you’re full of s—!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.” The post was accompanied by a picture of a transgender individual shopping for a swimsuit in the women’s department at a Target in Baton Rouge, La. The plaintiff’s husband was tagged in the post.
The plaintiff’s post was shared with her company’s president and vice president of Eastern operations. The vice president told the plaintiff that the president wanted to fire her immediately, and she had personally taken offense because the president was a member of the lesbian, gay, bisexual and transgender community. The next day, the vice president told the plaintiff that the president wanted to know for whom her husband worked in order to report the Facebook post to his employer.
On April 24, 2016, the president texted the plaintiff and told her to be available for a phone conference the next day. The plaintiff sent a text message to the vice president saying she felt she was being discriminated against because she was heterosexual. The plaintiff participated in a conference call with the president and ISS corporate counsel and was informed that she had to take a sensitivity/diversity training course and could no longer recruit through social media.
After the plaintiff made the post, the president refused to engage with her on a personal level. Several days later, the plaintiff was placed under the direct supervision of the president. On May 24, 2016, the plaintiff informed the vice president that she believed she was being harassed. The president was irate that the plaintiff had not yet attended sensitivity/diversity training and wanted to fire her immediately. At the end of May, the president allegedly issued new rules that applied only to the plaintiff and modified her schedule to conflict with her children’s schedules.
Around June 8, 2016, the plaintiff told the company in writing that she was being subjected to discrimination and harassment and she planned on filing a formal complaint. The next week, the plaintiff was told that she would be working at the company for only one more week. On June 21, 2016, the president found out that the plaintiff was still employed and told the vice president that she was shutting down the plaintiff’s e-mail by noon. The plaintiff was then fired immediately for allegedly unsatisfactory job performance.
The plaintiff filed a complaint against ISS, PNP, the vice president and the president alleging violations of multiple anti-discrimination laws, wrongful termination and intentional infliction of emotional distress. She amended her complaint to state discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 and various Louisiana statutes, including the Louisiana Constitution’s freedom of expression clause. The defendants moved to dismiss the complaint.
The district court dismissed the claims on the grounds that Title VII does not prohibit sexual-orientation discrimination and that the plaintiff did not have viable retaliation or free-speech claims. The plaintiff appealed the dismissal to the 5th Circuit.
The 5th Circuit confirmed that Title VII does not prohibit sexual-orientation discrimination based on its prior case law, despite other circuits’ recent decisions expanding Title VII’s protections. The Supreme Court is expected to resolve this split in authority in its upcoming term, which starts in October.
O’Daniel v. Industrial Service Solutions, 5th Cir., No. 18-30136 (April 19, 2019).
Professional Pointer: Employers face difficult choices when an employee posts angry or politically incorrect material online against a protected group. Nevertheless, decisions like those made in this case show that employers can often discipline employees when they do make such posts without incurring liability.