5th Circuit Holds (Again) Title VII Does Not Protect Sexual Orientation; SCOTUS to Decide Ultimate Issue

By Lindsay Hesketh

Last week, the Fifth Circuit held firm in its position that “Title VII in plain terms does not cover ‘sexual orientation.’”  In a slightly different iteration, plaintiff sued her former employer alleging that defendant had discriminated against her because she identifies as heterosexual and retaliated against her after she opposed the alleged discrimination. The district court dismissed the plaintiff’s complaint for failure to state a claim under Title VII and other state laws.  The Fifth Circuit affirmed.

While employers in multiple jurisdictions have been left to deal with the Circuit split on this issue, the Supreme Court recently announced that it would weigh in during its next term.  On April 22, 2019, SCOTUS stated it would review cases from the Second, Sixth, and Eleventh Circuits, all of which concern whether Title VII prohibits discrimination based on sexual orientation.

O’Daniel v. Indus. Serv. Solutions, Case No. 18-30136 (5th Cir. April 19, 2019).