LGBT Boss Fires HR Employee for Anti-Trans Facebook Post: Trump EEOC Supports Straight Employee

Only a few courts recognize LGBT status as a being protected under the term “sex discrimination" in employment law. Most courts still rule that legislation is required to indicate that Congress intends to protected gay workers from employment discrimination (many states take a broader view of discrimination, affording a venue for gay people).

Now comes this first-time case, where an LGBT boss read her HR employee’s Facebook post expressing concern that a policy at Target Corp. would allow transgender women to share a bathroom with her young daughters. The HR person for fired for having anti-LGBT animus.

The fired employee sued, claiming discrimination based on being straight.

To begin with, in the state where this occurred—Louisiana— the Fifth Circuit Court of Appeals does not recognize LGBT status as a basis for recovery on a claim for sex discrimination. To that court, “sex” in Title VII refers to when a man discriminates against a straight woman or a woman discriminates against a straight man—but not this does not apply to situations with gay employees.

With that in mind, the trial court rejected the claim by the fired woman, stating: “It is unreasonable for plaintiff to believe that discrimination based on her status as a married, heterosexual female constitutes discrimination on the basis of her sex.”

The matter is on appeal to the Fifth Circuit. 

Enter the Trump administration, which wants to make a legal point that straight workers can be eligible for relief under Title VII. It filed a brief in support of the straight employee. Interesting ... who knew that straight people are a victim class.

I’m willing to go there, provided that it works all ways: If a straight boss fires a transgender employee because of the person’s sex, that’s discrimination. If a transgender boss fires a straight person for opposing all-access bathrooms on Facebook (without directly harassing an LGBT person), then I’m willing to say that that’s employment discrimination “because of … sex (quoting statute).”

But my hunch is the Fifth Circuit will recognize that “straight” is protected, but LGBT is not.

Here’s why. Joseph Oncale (pictured) looked gay to his male co-workers. They worked on an oil rig in the Gulf—out to sea 14 days at a time. Oncale’s homophobic co-workers viciously harassed him including stripping him and forcing a bar of soap shaped like a penis in Oncale’s rectum. Oncale sued his employer for sex discrimination. The Fifth Circuit said male-on-male sexual harassment does not arise under Title VII-- case dismissed. The Supreme Court overruled the Louisiana-based court—a court that sometimes appears stuck in the sexual mores of the 1950s.