U.S. Court of Appeals for the Fifth Circuit in New Orleans. Photo by Mike Scarcella/ALM Media

The U.S. Court of Appeals for the Fifth Circuit has refused in a new ruling to expand federal workplace discrimination protections based on sexual orientation.

In the case, O'Daniel v. Industrial Service Solutions, the plaintiff Bonnie O'Daniel alleged she was discriminated against for being heterosexual, after she wrote a Facebook post about the propriety of a man wearing a dress in Target using a women's restroom or dressing room alongside her young daughters. One of her company's co-owners was part of the LGBT community, and took offense at the post and wanted to fire O'Daniel.

After a series of workplace disputes, O'Daniel in the end lost her job and then sued, alleging she was discriminated against for her sexual orientation of heterosexual, a violation of Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees based on sex, race, color, national origin and religion. The district court dismissed the case for failing to state a claim under Title VII. O'Daniel appealed to the Fifth Circuit.

“The question is not whether people are entitled to disagree (rudely or politely) about sensitive issues. The question is whether O'Daniel has stated a claim under Title VII. Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity,” wrote Fifth Circuit Judge Catharina Haynes in a concurring opinion.

The majority opinion by Chief Judge Edith Jones, joined by Haynes and Judge Andy Oldham, explained that the Fifth Circuit considered her claims for Title VII retaliation and Louisiana constitutional violations. O'Daniel hasn't adequately explained she was dismissed because of her sexual orientation, so that claim is waived, said the opinion.

O'Daniel had argued that Title VII does protect discrimination on the basis of sexual orientation, and the trial court erred when it found the opposite. She also claimed the court erred in finding she couldn't reasonably have believed sexual orientation discrimination was prohibited under the law. Amicus briefs did urge the Fifth Circuit to find that Title VII should protect people on sexual orientation.

The court refused the notion.

“The propositions she and the amici advocate would require us to press beyond limits firmly established in the statute and our case law,” the opinion said. Current precedent says the law doesn't cover “an entirely new category of persons protected for their sexual orientation.”

In the concurring opinion, Haynes wrote she would have dismissed O'Daniel's claim because “there is no reasonable inference that she was fired for any reason other than her Facebook post.” She raises “zero facts” she was dismissed based on sexual orientation as a heterosexual, it said.

O'Daniel's attorney, J. Arthur Smith of the Smith Law Firm in Baton Rouge, Louisiana, didn't immediately return a call seeking comment. The defendants' lawyer, Timothy Scott, partner in Fisher Phillips in New Orleans, declined to comment.

Read the whole opinion here.

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