Dive Brief:

• Given recent high-profile developments around the issue, employees may reasonably believe that workers are protected from discrimination based on sexual orientation, the U.S. Equal Employment Opportunity Commission (EEOC) told the 5th U.S. Circuit Court of Appeals May 2. And that belief alone can create retaliation protections, the agency said.
• The commission made that argument in an amicus brief in ongoing litigation. The suit, O’Daniel v. Industrial Service Solutions; Plant-N-Power Services Inc.; Tex Simoneaux Jr.; Cindy Huber, No. 3:17-CV-190, was filed by a heterosexual HR professional, Bonnie O'Daniel. After posting comments on social media voicing her opposition to allowing transgender individuals to use restrooms that align with their genders, she was informed that the company's president was offended. She was told to refrain from recruiting applicants via social media and required to undergo sensitivity training. She also received a letter of reprimand that, according to O'Daniel, raised performance concerns that had never been raised before. The company then began requiring that she use a time clock and revoked her flexible work arrangement, she alleged. She complained, saying that she was being discriminated against based on her sexual orientation. She was then laid off and filed the lawsuit, alleging retaliation for opposing unlawful activity — discrimination on the basis of her sexual orientation.
• A federal district court dismissed her claims, finding that she couldn't have reasonably believed that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation (and, therefore, that she would be protected from retaliation for opposing such activity). The court cited 5th Circuit precedent finding that Title VII doesn't cover sexual orientation. O'Daniel appealed, and the EEOC has asked the appeals court to find that — regardless of whether Title VII includes such protections — a reasonable person could believe that sexual orientation discrimination is unlawful.

Dive Insight:

While the EEOC took no position on the merits of O’Daniel’s appeal, the agency generally believes that Title VII covers sexual orientation. Federal courts of appeal are split on the issue, but employment law attorneys often recommend that employers refrain from discriminating on the basis of sexual orientation or gender identity, especially as state and local governments continue to adopt their own laws.

Between coverage of these and tangentially related issues — the U.S. Supreme Court wedding cake case, for example — EEOC's argument that employees may believe that federal law protects workers from discrimination based on sexual orientation may not be too far-fetched. And when employees reasonably believe that they're opposing activity that Title VII prohibits, the 5th Circuit has interpreted that law to protect that opposition, as EEOC explained in its brief.

For employers, this means that, no matter the complaint, they may want to take care to ensure that workers feel their concerns are being heard and addressed. Instruct managers to say “thank you for bringing your concerns to me” before anything else, Jonathan Segal, a partner with Duane Morris LLP, previously told HR Dive in an interview on sexual harassment. This will avoid an inference of retaliation, he said. Even if your investigation reveals that the allegations are unfounded, you've taken steps to ensure that managers don't retaliate and, hopefully, assuaged the employee's concerns.