by Jake Lee
Introduction
Louisiana’s state law protections against discrimination in employment have recently expanded but are still not fully protective. In 2022, Louisiana became the 18th state to implement the CROWN Act—legislation prohibiting employers from discriminating against an employee based on his or her natural hairstyle.[1] After the implementation of the CROWN Act, the Louisiana Employment Discrimination Law (the LEDL) now prohibits discrimination based on an “individual’s race, color, religion, sex, national origin, or natural, protective, or cultural hairstyle.”[2] However, despite these expanded protections, the LEDL does not protect against employment discrimination based on a person’s sexual orientation.[3]
The LEDL’s lack of protection came to light in Gauthreaux v. City of Gretna, in which the Louisiana Fifth Circuit Court of Appeal affirmed the dismissal of a plaintiff’s claim of unlawful discrimination due to his sexual orientation.[4] The court explained that Louisiana’s antidiscrimination statute does not protect against this type of employment discrimination, and it was not within the court’s authority to broaden the scope of the LEDL.[5]
A similar issue regarding the LEDL’s coverage arose in the Louisiana First Circuit Court of Appeal case Louisiana Department of Justice v. Edwards.[6] In 2016, Governor John Bel Edwards issued an Executive Order requiring all state contracts for the purchase of services to include a provision that the contractor not discriminate on the basis of sexual orientation or gender identity.[7] However, the Attorney General, upon request of state legislators, issued a formal opinion stating that the Executive Order had no legal effect since there was no Louisiana statute prohibiting such discrimination.[8] The Attorney General sought injunctive relief and requested that the district court declare the Executive Order invalid, which it did.[9] On appeal, the First Circuit agreed with the district court’s decision, calling the Executive Order an unconstitutional interference with the authority vested in the legislative branch.[10] The court stated that there were no federal laws outlining what discrimination based on sexual orientation or gender identity looked like.[11] The court explained that the legislature had not added “sexual orientation” or “gender identity” to the list of protected classes in the LEDL, and there was no federal jurisprudence at the time banning discrimination on the basis of sexual orientation or gender identity. Accordingly, the First Circuit affirmed the district court’s decision.[12]
Almost seven years later, this issue arose again in Gauthreaux.[13] The Gauthreaux plaintiff worked for the City of Gretna (the City) before being terminated and subsequently sued the City for sexual orientation discrimination in connection with his termination.[14] A male subcontractor, also employed by the City, allegedly made multiple advances toward the plaintiff while the two discussed a shelf installation job for the plaintiff’s home.[15] The subcontractor offered to install the shelves for a price that the plaintiff thought was far too low on its face—prompting the plaintiff to ask the subcontractor if that price also included sexual favors the plaintiff would need to perform.[16] After hearing this, the subcontractor recoiled, informed the plaintiff he would not be installing his shelves, and eventually reported the plaintiff for sexual harassment, resulting in the plaintiff’s termination.[17] The reasons that the City gave for his termination included prior misconduct and sexual harassment incidents.[18] Yet, the plaintiff claimed that he never committed any misconduct or sexual harassment prior to the incident at issue, and the plaintiff sued the City under the LEDL alleging sexual orientation discrimination.[19]
The City filed a peremptory exception of no cause of action,[20] arguing that the LEDL does not provide protection in employment to persons based on their sexual orientation.[21] The plaintiff countered that Louisiana courts consistently have followed federal jurisprudence in interpreting the LEDL and argued that the court should follow the United States Supreme Court’s recent holding in Bostock v. Clayton County.[22] The Bostock Court held that Title VII protects employees who experience discrimination based on sexual orientation.[23] However, the trial court agreed with the City and sustained the City’s exception of no cause of action, reasoning that it was beyond its authority to extend the language of the LEDL.[24]
I. Fifth Circuit Declining to Extend Bostock’s Rationale to the LEDL
On appeal, the plaintiff argued that the trial court erred by not following the United States Supreme Court’s decision in Bostock, which extended Title VII’s prohibitions to discrimination based on sexual orientation.[25] Bostock consolidated three cases involving employee termination that occurred once it was discovered that the employees were homosexual or transgender.[26] Title VII provides, in pertinent part, that employers shall not discriminate against employees “because of such individual’s race, color, religion, sex, or national origin.”[27] The Bostock decision focused on Title VII’s prohibition against discrimination because of sex.[28] The Bostock Court explained that an employer violates Title VII when an employee’s sex plays any part in the employer’s decision to terminate the employee—in other words, if the result would have been different had the employee’s sex been different, then the employer violated Title VII.[29] Thus, because the employees in Bostock would not have been terminated had their sex been different, their employers had violated Title VII.[30]
The LEDL contains similar language to Title VII in prohibiting employment discrimination because of an individual’s sex.[31] The Gauthreaux court considered the plaintiff’s argument that Louisiana courts often look to federal jurisprudence for guidance in interpreting the LEDL and deciding whether a claim had been asserted.[32] However, the Louisiana Fifth Circuit in Gauthreaux chose not to extend Bostock’s rationale to the LEDL and affirmed the trial court’s judgment sustaining the City’s exception of no cause of action.[33] The Gauthreaux court explained that Bostock only applied to Title VII and its interpretation.[34] The Bostock Court addressed employer concerns that its decision would permeate into state antidiscrimination laws by stating that its decision does not address state laws, only Title VII.[35] The Gauthreaux court explained that while Bostock was persuasive, it was not binding authority on Louisiana state courts.[36] Additionally, the Gauthreaux court explained that because the legislature had not seen fit to amend the LEDL to protect against sexual orientation discrimination, then it must affirm the trial court’s judgment finding no cause of action.[37]
The plaintiff sought review of this decision in the Louisiana Supreme Court, but the Court denied his writ application.[38] Justice Griffin concurred in the denial of writ but hinted that the Louisiana Supreme Court will need to confront difficult statutory and constitutional questions in the near future as the Louisiana Constitution often provides greater protections than the federal Constitution—notably Article I, § 3, and Article I, § 12, which prohibit sex discrimination by public and private entities.[39] Article I, § 3, of the Louisiana Constitution is titled “Right to Individual Dignity” while Article I, § 12, is titled “Freedom from Discrimination.” The two articles, respectively, read as follows:
Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.
Section 12. In access to public areas, accommodations, and facilities, every person shall be free from discrimination based on race, religion, or national ancestry and from arbitrary, capricious, or unreasonable discrimination based on age, sex, or physical condition.[40]
However, as Justice Griffin explained, since the plaintiff did not seek relief under the Louisiana Constitution, denial of the writ was warranted.[41]
II. Other States
Though the Gauthreaux court did not interpret the LEDL in light of Bostock, Michigan and Texas both have interpreted their antidiscrimination statutes according to the Bostock holding.[42] In Rouch World, LLC v. Department of Civil Rights, the Michigan Supreme Court analyzed Michigan’s antidiscrimination law, the Elliott-Larsen Civil Rights Acts (the ELCRA) and its prohibition of discrimination because of one’s sex.[43] The Court held that the “because of . . . sex” language in the ELCRA also prohibits discrimination based on sexual orientation.[44] The Court overturned its own precedent in light of Bostock and stated that Bostock and its rationale offered it a straightforward analysis of its own statutory language.[45] The Court explained that denying an individual the equal enjoyment of a public accommodation on the basis of that individual’s sexual orientation necessarily encompasses the individual’s sex and is therefore prohibited.[46]
In Tarrant County College District v. Sims, a Texas Court of Appeal analyzed Texas’s antidiscrimination law, the Texas Commission on Human Rights Act (TCHRA), shortly after Bostock was decided.[47] Like Rouch World, the court held that the antidiscrimination statute prohibits discrimination because of sexual orientation.[48] The TCHRA prohibited discrimination because of an individual’s sex, and the court explained it would follow Bostock’s rationale in interpreting the TCHRA.[49] Thus, the court held that the plaintiff’s sexual orientation discrimination claim may be brought under the TCHRA.[50]
III. Looking Forward
Despite other states’ courts choosing to interpret state antidiscrimination law according to Bostock, Louisiana courts appear to follow prior precedent in the absence of any legislative amendment on this issue.[51] There is proposed legislation for the 2023 Legislative Session, House Bill No. 40 (HB 40), that would amend the LEDL to include “sexual orientation.”[52] The amended LEDL would prohibit employers from discriminating on the basis of sexual orientation and gender identity, seeking the same protections Governor Edwards sought in his Executive Order. Given the Bostock decision—which extended Title VII protection to homosexual and transgender people—this Bill may be seen as more persuasive than it has in years past.[53] HB 40 is currently pending in the House Committee on Labor and Industrial Relations.[54] In both Edwards and Gauthreaux, the respective courts based their decisions to not find sexual orientation discrimination protected under the LEDL on the fact that the legislature has not seen fit to amend the LEDL to add this protected class. Given these courts’ deference to the legislature, HB 40 could be the only hope for the prohibition of sexual orientation discrimination in Louisiana.[55]
However, as Justice Griffin alluded to, future plaintiffs alleging discrimination due to their sexual orientation may find a cause of action under the Louisiana Constitution.[56] Article I, § 3, forbids laws that unreasonably discriminate against a person because of his or her sex, and Article I, § 12, proscribes discrimination on the basis of sex in access to public areas.[57] In other words, § 3 addresses laws that discriminate while § 12 addresses individuals who would discriminate.[58] Returning to Gauthreaux, an unconstitutionality challenge may have been made under § 3 arguing that the LEDL violates § 3 of the Louisiana Constitution.[59] As for § 12, a potential argument could have been made by the plaintiff that his termination, based on unreasonable discrimination because of sex, now resulted in loss of access to public areas or facilities.[60] Looking past Gauthreaux, the wide range of protections that the Louisiana Constitution offers will inevitably lead to difficult state statutory and constitutional questions in the employment discrimination context and elsewhere.[61] Although the Gauthreaux plaintiff could not find relief under the LEDL, similar plaintiffs may be able to have their claims heard in the future through new legislation or constitutional arguments.[62]
Conclusion
Admittedly, the Gauthreaux court made the correct decision.[63] Bostock is not mandatory authority over Louisiana state courts, and the LEDL currently does not list “sexual orientation” as a protected characteristic.[64] The Gauthreaux court remained faithful to precedent and the current text of the LEDL.[65] However, given the recent activity in the legislature and other state courts’ deference to Bostock in interpreting their own state antidiscrimination laws, protections against sexual orientation discrimination may be around the corner, either by legislative amendment of the LEDL or under state constitutional provisions.[66]
[1] See H.B. 1083, 2022 Leg., Reg. Sess. (La. 2022); Andrew P. Burnside et al., Louisiana Joins Growing List of States Prohibiting Hairstyle Discrimination, Nat’l L. Rev. (June 30, 2023), https://www.natlawreview.com/article/louisiana-joins-growing-list-states-prohibiting-hairstyle-discrimination [https://perma.cc/G7PT-E9JU]; see also Emily A. Bushaw & Adrienne Paterson, Louisiana Implements the CROWN Act, PerkinsCoie (Aug. 18, 2022), https://www.perkinscoie.com/en/news-insights/louisiana-implements-the-crown-act.html [https://perma.cc/VG9Q-BZY5].
[2] La. Rev. Stat. § 23:332 (2023) (emphasis added). Louisiana Revised Statutes § 23:332, titled “Intentional discrimination in employment,” states:
A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to compensation, or terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, national origin, or natural, protective, or cultural hairstyle.
Id.
[3] See generally Gauthreaux v. City of Gretna, 360 So. 3d 930 (La. Ct. App. 5th Cir. 2023), cert. denied, 363 So. 3d 254 (La. 2023).
[4] See id.
[5] See id.
[6] See generally La. Dep’t of Justice v. Edwards, 233 So. 3d 76 (La. Ct. App. 1st Cir. 2017).
[7] Id. at 78.
[8] Id.
[9] Id. at 78–79.
[10] Id. at 81.
[11] Id.
[12] Id.
[13] See generally Gauthreaux v. City of Gretna, 360 So. 3d 930 (La. Ct. App. 5th Cir. 2023).
[14] Id. at 931–32.
[15] Id. at 932.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] “The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition.” Id. at 933 (quoting Gaudet v. Jefferson Par., 116 So. 3d 691, 693 (La. Ct. App. 5th Cir. 2013)).
[21] Id.
[22] Id. See Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (finding that Title VII of the Civil Rights Act of 1964 protects employees who experience employment discrimination based on sexual orientation).
[23] See generally Bostock, 140 S. Ct. 1731.
[24] See Gauthreaux v. City of Gretna, No. 826-992, 2022 WL 17077836, at *1 (La. Dist. Ct. 24th JDC July 18, 2022); Gauthreaux, 360 So. 3d at 933 (restating the trial court’s holding).
[25] See Gauthreaux, 360 So. 3d at 934; see generally Bostock, 140 S. Ct. 1731.
[26] See Bostock, 140 S. Ct. at 1737–38.
[27] 42 U.S.C. § 2000e-2(a)(1) (2023).
[28] See Bostock, 140 S. Ct. at 1741; 42 U.S.C. § 2000e-2(a)(1).
[29] See Bostock, 140 S. Ct. at 1741; 42 U.S.C. § 2000e-2(a)(1).
[30] See Bostock, 140 S. Ct. at 1741; 42 U.S.C. § 2000e-2(a)(1).
[31] See La. Rev. Stat. § 23:332 (2023); see also 42 U.S.C. § 2000e-2(a)(1).
[32] See Gauthreaux v. City of Gretna, 360 So. 3d 930, 934 (La. Ct. App. 5th Cir. 2023); King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999) (following United States Fifth Circuit Court of Appeals precedent in determining prescriptive period under antidiscrimination statute); Newton & Assoc. v. Gross, 947 So. 2d 67, 69 (La. Ct. App. 5th Cir. 2006) (following United States Supreme Court precedent that created two types of sexual harassment—one based on a quid pro quo theory and the other based on a theory of hostile work environment); Plummer v. Marriott Corp., 654 So. 2d 843, 848 (La. Ct. App. 4th Cir. 1995) (following United States Supreme Court precedent establishing elements of a prima facie case of employment discrimination).
[33] Gauthreaux, 360 So. 3d at 934–35.
[34] Id. at 935.
[35] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1735 (2020).
[36] Id. at 935.
[37] Id. at 935–36.
[38] See Gauthreaux v. City of Gretna, 363 So. 3d 254 (La. 2023).
[39] Id. at 255 (Griffin, J., concurring) (citing Derek Warden, Disability Rights and the Louisiana Constitution, 48 Hastings Const. L.Q. 578, 579, 601 (2021); see La. Const. art. I, §§ 3, 12.
[40] La. Const. art. I, §§ 3, 12.
[41] See Gauthreaux, 363 So. 3d at 255 (Griffin, J., concurring).
[42] See Rouch World, LLC v. Dep’t of C.R., 987 N.W.2d 501 (Mich. 2022); see generally Tarrant Cnty. Coll. Dist. v. Sims, 621 S.W.3d 323 (Tex. App. 2021).
[43] Rouch World, LLC, 987 N.W.2d at 504; see Mich. Comp. Laws § 37.2302 (2023).
[44] See Rouch World, LLC, 987 N.W.2d at 504; see Mich. Comp. Laws § 37.2302 (2023).
[45] Id. at 513.
[46] Id.
[47] Tarrant Cnty. Coll. Dist., 621 S.W.3d at 328.
[48] See Tarrant Cnty. Coll. Dist., 621 S.W.3d at 329; see also Rouch World, LLC, 987 N.W.2d at 504.
[49] See Tarrant Cnty. Coll. Dist., 621 S.W.3d at 328.
[50] Id. at 329. (The plaintiff did not originally bring her claim under the TCHRA, but the court gave the plaintiff opportunity to amend her pleadings. Id).
[51] See Gauthreaux v. City of Gretna, 360 So. 3d 930 (La. Ct. App. 5th Cir. 2022); La. Dep’t of Just. v. Edwards, 233 So. 3d 76 (La. Ct. App. 1st Cir. 2017).
[52] See Gauthreaux, 360 So. 3d at 935 n.4; see also H.B. 40, Leg., Reg. Sess. (La. 2023) (Representative Delisha Boyd introduced HB 40, and the House Committee on Labor and Industrial Relations considered HB 40 on May 3, 2023).
[53] See H.B. 40, Leg., Reg. Sess. (La. 2023); see also Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
[54] See H.B. 40, Leg., Reg. Sess. (La. 2023).
[55] See id.
[56] See Gauthreaux v. City of Gretna, 363 So. 3d 254, 255 (La. 2023) (Griffin, J., concurring).
[57] See La. Const. art. I, §§ 3, 12.
[58] See Albright v. S. Trace Country Club of Shreveport, 879 So. 2d 121, 127 (La. 2004).
[59] See generally Gauthreaux v. City of Gretna, 360 So. 3d 930 (La. Ct. App. 5th Cir. 2023); La. Const. art. I, § 3.
[60] See La. Const. art. I, § 12.
[61] See Gauthreaux, 363 So. 3d at 255; see also La. Const. art. I, §§ 3, 12.
[62] See H.B. 40, Leg., Reg. Sess. (La. 2023); La. Const. art. I, §§ 3, 12.
[63] See generally Gauthreaux, 360 So. 3d 930.
[64] See La. Rev. Stat. § 23:332 (2023).
[65] See generally Gauthreaux, 360 So. 3d 930; Dep’t of Justice v. Edwards, 233 So. 3d 76 (La. Ct. App. 1st Cir. 2017).
[66] See H.B. 40, Leg. Reg. Sess. (La. 2023); see generally Rouch World, LLC v. Dep’t of C.R., 987 N.W.2d 501 (Mich. 2022); Tarrant Cnty. Coll. Dist. v. Sims, 621 S.W.3d 323 (Tex. App. 2021); see also La. Const. art. I, §§ 3, 12.