The U.S. Supreme Court has agreed to settle deep divisions between federal appellate courts on the question of whether an employee’s or applicant’s sexual orientation or gender identity are protected under Title VII’s sex discrimination prohibition. On April 19, the Fifth Circuit confirmed its vote on the “no” side of the argument, concluding that Congress did not intend the law to extend to claims of discrimination based on sexual orientation. The Fifth Circuit held that a straight employee cannot bring a Title VII claim based on her assertion of purportedly anti-LGBT comments.

In O’Daniel v. Industrial Service Solutions, the plaintiff alleged that she was terminated after posting Facebook comments mocking transgender people’s attempts to use restrooms matching their gender identity. She filed suit under Title VII, claiming that her actions were protected under Title VII’s opposition clause based on her pre-termination threats to file suit after negative reactions to the postings. The EEOC concluded that her actions were protected under Title VII based on the plaintiff’s heterosexual orientation.

The Fifth Circuit disagreed, affirming dismissal of the claim. In its decision, the panel majority based its decision on a Fifth Circuit case from February concluding that Title VII does not protect sexual orientation. One of the judges agreed with the conclusion but stated that even if Title VII protects sexual orientation, those protections would not extend to a heterosexual person’s negative Facebook comments about LGBT persons.

Given the U.S. Supreme Court’s April 22 decision to review a trio of cases on this subject, the ultimate fate of the Fifth Circuit’s position on this issue will depend on the outcome of those appeals. Until the Supreme Court issues a definitive opinion on this issue, the question of coverage of sexual orientation and gender identity discrimination claims under Title VII depends on where the employee lives and works.