Oh, did I mention that the plaintiff was the HR Manager?
And she made an incendiary Facebook post. Well, that I can believe. (I’m friends on Facebook with several HR folks.) Then again, I don’t recall seeing a post like this.
Let’s check out the Fifth Circuit Court of Appeals decision to see what she had to say:
“So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.”
So, we have the HR Manager, presumably the employer’s head of compliance, ostensibly the person whose job it is to investigate claims of discrimination and harassment, making a transphobic post on Facebook.
Let’s see how this turns out for the HR Manager’s employment status.
[Spoiler Alert: Not Well]
Well, after the HR Manager made the post, it was shared with the owners of the company, one of whom informed the HR Manager that the other wanted her fired immediately. Apparently, that owner had personally taken offense to the post because …
Wait for it…
The owner who wanted the HR Manager fired is a member of the LGBT community.
But, wait. There’s more.
The next day, one of the owners informed the HR Manager that other owner wanted to know for whom the HR Manager’s husband worked. Evidently, the HR Manager had tagged her husband in the Facebook post, and the owner felt a responsibility to report the Facebook post to his employer.
On or about April 24, 2016, one of the owners texted the HR Manager and told her to be available for a phone conference the following day. The HR manager replied saying she felt she was being discriminated against because she was heterosexual.
Yadda, yadda, yadda, the HR Manager gets fired.
So, does our transphobic, heterosexual HR manager have a viable claim under Title VII of the Civil Rights Act of 1964 for, err, discrimination against straight people?
Yeah, no. At least not under this set of facts.
Also, the Fifth Circuit has not yet recognized that Title VII supports a claim for discrimination based on sexual orientation, regardless of whether you are lesbian, gay, bisexual, transgender, or heterosexual. And notwithstanding arguments from the pro se HR Manager and amici briefs from the EEOC and the ACLU encouraging the Fifth Circuit to change its position on whether Title VII prohibits discrimination based on sexual orientation, the court declined to do so. Thus, the HR Manager could not show that she engaged in any protected activity to support a Title VII retaliation claim either.
Now, where did I put my tiny violin for the HR Manager? Oh, here it is.
What can we take away from this case?
Well, if you work in HR and have any similar transphobic or other discriminatory posts lurking out there on social media, consider firing yourself to save the company the time and expense of having to do it.
Apart from that, this case reaffirms a big circuit split on the issue of LGBT (and apparently, heterosexual too) rights under Title VII, which the Supreme Court has agreed to resolve.