Fifth Circuit Considers Whether Sexual Orientation is Covered By Title VII–In A Case Filed By A Heterosexual

By Kathleen J. Jennings (

The issue of whether discrimination on the basis of sexual orientation is protected by Title VII is under consideration by several Circuit courts and may one day be decided by the U.S. Supreme Court. A case before the Fifth Circuit Court of Appeals has an interesting twist: the lawsuit was filed by a heterosexual married female employee who was terminated due to a post on Facebook objecting to transgender bathroom use. [Bonnie O’Daniel v. Industrial Service Solutions, et al, Docket No. 18-30136].

Ms. O’Daniel, an HR employee of Plant-N-Power Services, Inc. in Louisiana, made a Facebook post that she described as follows: “The post included a photo array of a man (or possibly a transgender woman) wearing a dress at Target[, a retail store]. The post expressed [O’Daniel’s] views on an ongoing public debate, specifically her discontent with the possibility of this individual being permitted to use a women’s bathroom and/or dressing room at the same time as [O’Daniel’s] young daughters.”

The President of Plant-N-Power Services, Inc., who is a member of the LBGTQ community, saw the post, and Ms. O’Daniel was disciplined and ultimately discharged. (Yet another cautionary tale about posting controversial things on social media).

Ms. O’Daniel alleged that she was terminated on the basis of her sexual orientation—heterosexual, and in retaliation for complaining that she was discriminated against on the basis of her sexual orientation (heterosexual). The District Court dismissed the lawsuit, finding that Title VII does not protect employees from discrimination in the basis of sexual orientation, and Ms. O’Daniel appealed to the Fifth Circuit.

The EEOC and several LBGTQ advocacy groups have filed Briefs arguing that Title VII does prohibit discrimination n the basis of sexual orientation. So the irony here is that a heterosexual ex-HR employee who publicly posted her objections to transgender bathroom use may be the person who convinces the Fifth Circuit Court of Appeals to recognize sexual orientation as a protected status. We’ll keep you posted on this.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at

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