“I don't think Title VIIprotects you from being a jerk,” a judge said of theruling. (Photo: Mike Scarcella /ALM)

A federal appeals panel expressed skepticism Wednesday that aheterosexual woman should be allowed to bring claims of sexual orientation discrimination after she wasfired over a Facebook post that disparaged a transgenderindividual.

The three-judge panel of the U.S. Court of Appeals for the FifthCircuit considered claims from a Louisianawoman, Bonnie O'Daniel, who argued that her supervisor, who is gay,unlawfully retaliated against her because sheis heterosexual. O'Daniel lost her case in Louisiana federaldistrict court.

O'Daniel's Facebook post expressed her views and concerns abouta transgender individual being allowed to use a bathroom ordressing room designated for women. O'Daniel's boss took offense tothe social media post, which said: “For all of you people who sayyou don't care what bathroom it's using, you're full of[expletive]! Let this try to walk in the women's bathroom while mydaughters are in there. #hellwilllfreezeoverfirst.”

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O'Daniel's claims of retaliation presented the appeals court afresh chance to address the scope of Title VII employment rights,which forbid companies from discriminating on the basis of sex,race, color, religion and national origin. Courts, however, aredivided over whether the law extends toprotect against sexual orientation bias.

At Wednesday's hearing, Fifth Circuit Judge Catharina Haynesseemed disinclined to reach the divisive question about the scopeof Title VII, an issue that is pending in petitions at the U.S.Supreme Court. Haynes zeroed in several times on the substance ofO'Daniel's Facebook post as the root of her termination.

“I don't think Title VII protects you from being a jerk,” Haynessaid at one point during the hearing.

Haynes said at another point: “I'm pushing back against thenotion that a company has to keep people, in the age of Twittershaming, and people not doing business at companies they feel areracist, sexist, anti-LGBT, et cetera, that somebody has to keep ontheir payroll someone espousing those views.”

Gregory Nevins, senior counsel at Lambda Legal Defense andEducation Fund, argued as an amicus. Nevins expressed concern abouta conclusion in the trial court's ruling that it was “unreasonable”for O'Daniel to believe in early 2016 that Title VII covers sexualorientation discrimination.

“I wanted to come after the low-hanging fruit,” Nevins told theappeals panel. “The district court said clearly 'it wasunreasonable for an employee to believe that sexual orientation wascovered by Title VII.' Please do not affirm that ruling,” Nevinssaid. He added, “We are in the middle of the ball game and we don'thave the final score yet.”

O'Daniel's attorney, J. Arthur Smith, of the Smith Law Firm inBaton Rouge, argued that his client could reasonablybelieve that Title VII protects against sexual orientationdiscrimination.

Haynes asked whether the firing of an employee who rants againstan African-American person could give rise to a Title VIIrace-based retaliation claim. “We have had a lot of cases where anemployee did something racist, the public was outraged, thepersonal was fired,” Haynes said. “Do those people now have a TitleVII action?”

Smith said he would not go that broadly and said there were aseries of events after O'Daniel's Facebook post that led her tobelieve she was being treated differently because she was aheterosexual woman.

Timothy Scott, Fisher & Phillips partnerin New Orleans, who represented O'Daniel's formeremployer, said the Facebook post in question could have beenequally offensive to a heterosexual employer as it was to ahomosexual one. He argued the company, Industrial ServiceSolutions, was within its rights to fire its employee for offensivespeech.

Any change to the reach of Title VII to include sexualorientation should be decided by Congress, Scott argued.

Scott told the judges that it was possible to affirm the lowercourt's decision without wading into broader questions. “The factsare she wasn't fired for her sexual orientation,” Scott said. “Thisfalls within at-will employment.”

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