To a large extent, the support of the EEOC and the ACLU is natural because they have been on the vanguard of arguing that Title VII covers sexual orientation discrimination. The Fifth Circuit, having not addressed the issue recently, seems like a good arena for advancing the ball. In this case, O'Daniel need not even show that Title VII actually prohibits sexual orientation discrimination, merely that she reasonably thought it does. Given the recent court rulings and EEOC pronouncements, it seems reasonable that someone would believe Title VII prohibits sexual orientation discrimination. You may disagree that that is the best interpretation, but it's hardly unreasonable to believe that the alternative is correct.
Interestingly, however, O'Daniel's termination appears to be closely tied to a Facebook post that included a photo of a man wearing a dress in a department store dressing room and expressed her concern with the possibility of men being allowed to use women's facilities at the same time as her young daughters. The EEOC and the ACLU have avoided the merits of O'Daniel's underlying claim, and it's not clear that either organization thinks that O'Daniel actually reasonably believed that she was being subjected to sexual orientation discrimination. The ACLU even noted in a footnote that "an employer has reason to be concerned when the head of its Human Resources Department publicly opposes the use of women’s facilities by transgender women." Given that the EEOC and the ACLU have strongly supported transgender bathroom access previously, they certainly make strange bedfellows with O'Daniel.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
