5th Circuit: Title VII Does Not Prohibit Transgender Discrimination


By Michael W. Foster April 30, 2019

​Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on transgender status, the 5th U.S. Circuit Court of Appeals once again decided.

The plaintiff in this case applied for a position with Phillips 66 Co. as an instrument and reliability engineer, and a job offer was extended to her subject to a background check. As part of the background search, Phillips 66 discovered that she had misrepresented her employment status during the application interview. Specifically, the plaintiff had stated that she was looking for new employment because ongoing projects for her current employer would require significant future travel to Canada when, in fact, her employment had been terminated several days prior to the application interview.

Phillips 66 withdrew the job offer, and the plaintiff responded by alleging that the withdrawal was based on her transgender status. Phillips 66 responded that it was unaware that the plaintiff was transgender and, regardless, the decision was based on the inaccurate information provided by her during the interview.

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A Texas trial court granted summary judgment in favor of Phillips 66 after first concluding that Title VII does prohibit discrimination based on transgender and sexual orientation status. The trial court relied on the fact that the 2nd, 6th and 7th circuits had recently determined that transgender status and sexual orientation were protected classifications under Title VII.

That court determined that the plaintiff's claims failed nonetheless because she could not establish that the decision to withdraw the offer was motivated by her transgender status and, alternatively, because Phillips 66 had established the existence of legitimate, nondiscriminatory business reasons for the hiring decision.

On appeal, a two-judge panel of the 5th Circuit affirmed the summary judgment decision of the trial court in favor of Phillips 66 but rejected that court's findings regarding the applicability of Title VII. Specifically, the panel noted that past 5th Circuit case law had found that Title VII protection does not extend to sexual orientation or transgender status and stated that the trial court should have followed that precedent.

The panel further held that, regardless of whether the plaintiff was protected by Title VII, she did not create an issue for a jury to decide related to alleged discrimination. The panel also agreed that Phillips 66 had met its burden on summary judgment of establishing legitimate, nondiscriminatory business reasons for its action.

Wittmer v. Phillips 66 Co., 5th Cir., No. 18-20251 (Feb. 6, 2019).

Professional Pointer: The appeals courts remain split on whether Title VII prohibits discrimination on the basis of either sexual orientation or transgender status, a split that the Supreme Court has announced it will review and potentially resolve. The 5th Circuit notwithstanding, many state anti-discrimination statutes include transgender status and sexual orientation as protected classifications.

Michael W. Foster is an attorney with Foster Employment Law in Oakland, Calif. Foster Employment Law is the Worklaw® Network member firm in northern California. 


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