Unequal Treatment Allegations Necessary to Establish Gender Identity Discrimination

By Kevin L. Kula August 3, 2021

​When a transgender employee alleges disparate treatment discrimination under Title VII of the Civil Rights Act of 1964, the worker must support the claim with allegations demonstrating treatment different from that of a comparable person outside the protected class, the 5th U.S. Circuit Court of Appeals ruled.

T-Mobile employed a transgender individual serving as a retail associate from December 2015 until April 27, 2018. The plaintiff stopped coming to work in September 2017 to undergo a medical procedure.

T-Mobile, acting through the Broadspire Services medical claims company, retroactively approved the plaintiff's request for leave spanning from September through Dec. 31, 2017. Additionally, the company agreed to extend the plaintiff's leave through Feb. 18, 2018. The company then denied a request for additional leave in March. T-Mobile fired the plaintiff on April 27, 2018, for not meeting attendance requirements.

The plaintiff filed suit alleging multiple causes of action, among them a claim for disparate treatment gender discrimination under Title VII. Disparate treatment occurs when an employer intentionally treats an employee less favorably on the basis of the employee's protected status. A disparate treatment case is distinct from a disparate impact case, which arises out of a neutral employer policy or practice applicable to all employees that unintentionally, but unjustifiably, results in particular harm to a protected class of employees.

The employer moved to dismiss the claims on grounds that the plaintiff had failed to make out a plausible cause of action. Specifically, T-Mobile asserted that the plaintiff had not alleged that at least one other employee outside of his protected classification had been granted additional leave under similar circumstances. After permitting the plaintiff multiple opportunities to amend his complaint, the employer's motion was granted.

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The appellate court agreed with the dismissal. While noting that sexual orientation and gender identity are protected classifications under Title VII, the court found that the plaintiff had failed to plead any fact indicating he was treated differently than a similarly situated employee outside of his protected class.

Simply put, there was no allegation raised that any employee who was not transgender had received more-favorable treatment. Without such an allegation, the plaintiff could not show his discharge was related to his protected status.

The plaintiff argued that the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County established a lower burden for individuals alleging discrimination based on gender identity. The Bostock decision had determined that sexual orientation and gender identity discrimination qualifies as sex discrimination under Title VII.

The court rejected the plaintiff's argument, finding Bostock did not alter the established requirements for asserting a discrimination claim. In closing, the court stated that Title VII protects every American from discrimination, but that a viable case requires specific allegations that disparate treatment occurred.

Olivarez v. T-Mobile USA Inc., 5th Cir., No. 20-20463 (May 14, 2021).

Professional Pointer: Although any employee with protected status can bring a discrimination claim against their employer, a claim based on disparate treatment must allege sufficient factual support demonstrating less-favorable treatment based on the employee's protected classification. Even though the court rejected the plaintiff's claim, this case serves as a reminder that employers need to be consistent in making employment decisions affecting employees protected under Title VII.

Kevin L. Kula is an attorney with Masud Labor Law Group, the Worklaw® Network member firm in Saginaw, Mich.



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