In Gauthreaux v. The City of Gretna, 22-424 (La. App. 5 Cir. 3/29/23), ___ So.3d ___, 2023 WL 2674191, Louisiana’s Fifth Circuit Court of Appeal held that Louisiana’s statutory employment protections related to sex did not extend to sexual orientation and declined to extend the United States Supreme Court’s Bostock v. Clayton County, Georgia decision to claims arising under state law. The Louisiana Court of Appeal affirmed the decision of the trial court and dismissed the case for no cause of action. The Court of Appeal reasoned that the Louisiana Employment Discrimination Law, specifically La.R.S. 23:332, does not provide protections for persons based on their sexual orientation or status as a transgender person.
Previously, in Bostock, the United States Supreme Court held that the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 includes protections from discrimination based upon sexual orientation and transgender status. Writing for the six Justice majority, Justice Neil Gorsuch stated, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex . . . Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” Bostock v. Clayton County, Georgia, 590 U.S. ___, ___, 140 S.Ct. 1731, 1741-42 (2020). Prior to the Bostock decision, courts were split on whether Title VII extended protections based on one’s sexual orientation or transgender status. Although the Bostock Court expanded the meaning of sex discrimination under Title VII, the Court made it clear that its opinion did not address issues such as bathroom assignments, dress code policies, locker room assignments, preferred pronouns, and, most notably, Bostock’s applicability to state law. Justice Gorsuch affirmed that the question the Court was deciding was “whether an employer who fires someone simply for homosexual or transgender or otherwise discriminated against the individual ‘because of such individual’s sex.’” Id. at ___, 140 S.Ct. 1731,1753.
Like many other states, Louisiana provides for protections based upon race, age, sex, and other protected classifications, some of which parallel federal law. Louisiana courts have held that the state’s protections based upon sex are similar to Title VII and extended Title VII’s jurisprudence to Louisiana’s parallel statutory claims.
In Gauthreaux, the City of Gretna terminated the plaintiff for misconduct, sexual harassment, dishonesty, prior incidents of sexual harassment, and insubordination. The plaintiff asserted that he was never disciplined for any of these issues, and therefore, they were a pretext for his termination. The plaintiff maintained that the true reason for his termination was his protected status as a LGTBQ+ male. The plaintiff alleged that a co-worker made sexual advances toward him, and that the plaintiff confronted the co-worker and inquired about the alleged sexual advances. In turn, the co-worker reported the plaintiff for sexual harassment. The plaintiff argued that had he been a female or a non-LGTBQ+ male he would not have suffered the same discrimination or termination. Further, the plaintiff asserted that he was protected by La.R.S. 23:332 based on his sexual orientation because La.R.S. 23:332 closely parallels Title VII, and the Supreme Court in Bostock extended protections under Title VII based upon sex to include sexual orientation and transgender status. The trial court disagreed and dismissed the suit, and the Court of Appeal affirmed.
The Court of Appeal was unpersuaded by the plaintiff’s argument that La.R.S. 23:332 extends to protections based on sexual orientation because of its close relation to Title VII and Bostock’s expansion of Title VII. Citing Bostock, the Court of Appeal expressly noted that “the majority opinion in Bostock states that the only law it considered in rendering its opinion was Title VII, specifically stating that ‘none of these other [federal or state laws that prohibit sex discrimination] are before us . . .’” The Court of Appeal acknowledged Bostock as persuasive; however, with respect to Louisiana state law, Louisiana courts are not bound by the Supreme Court’s interpretation of Title VII and its holding that sex discrimination includes discrimination based on one’s sexual orientation or status as a transgender person, and the Court of Appeal declined to extend Bostock to La.R.S. 23:335.
The Gauthreaux decision is controlling in the Louisiana Fifth Circuit Court of Appeal, but other state and federal courts may see Gauthreaux as persuasive. Although the Louisiana Fifth Circuit ruled against the plaintiff, the plaintiff may seek a rehearing or may seek review by the Louisiana Supreme Court, so the issue may not be settled yet (even in the Louisiana Fifth Circuit).
For additional information, please contact: Ed Hardin at (225) 382-3458 or Shearil Matthews at (225) 382-3450.