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Fifth Circuit Upholds Firing for Transgender Comment

Bonnie O’Daniel was the human resources manager for Industrial Service Solutions (ISS). While employed, she posted the following comment on Facebook: “For all of you people that say you don’t care what bathroom it’s using, you’re full of sh---!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.” Accompanying the comment was a photo of a transgender person shopping for a swimsuit in the women’s department of a local Target.

O’Daniel alleged that after ISS’ president and vice-president found out about the post, she was discriminated against and harassed for the next month or so. The president was purportedly a member of the LGBTQ community. She was fired just two weeks after complaining about the harassment for alleged unsatisfactory job performance.

In her lawsuit arising out of the firing, O’Daniel alleged several claims, including retaliation in violation of Title VII. The federal district court dismissed her claim and the Fifth Circuit Court of Appeals upheld the dismissal. O’Daniel alleged that her notification to ISS that she intended to file a complaint qualified as protected activity for which she could not be retaliated against. The alleged underlying discrimination that she was protesting was based on her sex as a married, heterosexual woman. The circuit court reiterated its conclusion that Title VII does not protect individuals from discrimination on the basis of sexual orientation. The court also asserted that it was unreasonable for O’Daniel to believe that discrimination against her status as a married, heterosexual female would constitute discrimination on the basis of sex. It was not protected activity and her claim was dismissed. The appellate court noted that even if Title VII did prohibit sexual orientation discrimination, there was no indication she was fired for her sexual orientation. The most that O’Daniel could plausibly assert was that the ISS president was offended by her post. O’Daniel’s claims were dismissed by the court.