Like most jurisdictions, the Fifth Circuit Court of Appeals (which oversees federal courts in Mississippi, Louisiana, and Texas) has construed Title VII of the Civil Rights Act of 1964 so as not to provide employment protections based on sexual orientation. Recently a few other circuits have held otherwise. On February 6, 2019, the Fifth Circuit in Wittmer v. Phillips 66 Co., No. 18-20251, 2019 WL 458405 (5th Cir. Feb. 6, 2019), reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discriminating against employees because of sexual orientation.
The case involved Nicole Wittmer, a transgender woman who applied for an engineer position with Phillips 66. Phillips 66 interviewed Wittmer and made her a job offer contingent on passing a background check, but it decided to rescind the offer after discovering that Wittmer misrepresented a recent employment termination. Although Phillips 66 was unaware that Wittmer was transgender at the time, she sent the company a letter accusing it of transgender discrimination. After filing a charge of discrimination with the EEOC, Wittmer sued Phillips 66 in a Texas federal district court.
Relying on rulings from the Second, Sixth, and Seventh Circuit Courts of Appeal, the district court found that Title VII prohibits discrimination on the basis of both sexual orientation or transgender status. The court, however, dismissed Wittmer’s case because she failed to present sufficient evidence to prove discrimination. On appeal, the Fifth Circuit held that the district court erred by ignoring decision in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which expressly held that Title VII does not prohibit discrimination because of sexual orientation. The court’s majority opinion did not, however, address if Blum applied to transgender discrimination. Instead, it found it unnecessary to address that issue because it found that the issue was not properly raised with the district court.
In a lengthy concurring opinion, however, Judge James Ho opined that Title VII does not protect discrimination on the basis of sexual orientation or transgender status. Analyzing Title VII’s history regarding sex discrimination over the past four decades, Judge Ho highlighted the controversies and outcomes created by extending protections to transgender employees. He wrote that “this case does not simply concern sexual orientation and transgender discrimination. It affects every American who uses the restroom at any restaurant, buys clothes at any department store, or exercises at any gym. What’s more, because federal statutes governing educational institutions employ language indistinguishable from Title VII, this debate also affects virtually every school, college, dormitory, athletic activity, and locker room in America.” Judge Ho concluded his concurrence “with concern that the people are losing faith in their institutions—and that our courts are giving the people reason to do so.”
The Wittmer case strongly reaffirms the Fifth Circuit’s position on the scope of Title VII protection and likely will be cited by others as support the proposition that Title VII does not protect transgender status. At some point in the near future, the United States Supreme Court may finally resolve this dispute once and for all. Under the Supreme Court’s existing precedent, sex stereotyping (i.e., requiring men and women to conform to their expected gender roles) in the workforce is still prohibited by Title VII when it results in favoritism of one sex over the other. The Fifth Circuit recently upheld a decision against an employer for sex stereotyping where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotypes of “rough iron workers.” EEOC v. Boh Bros. Const. Co., 731 F.3d 444 (5th Cir. 2013). Thus, the Wittmer and Boh Bros. cases could potentially make the issue more confusing if the Fifth Circuit ever expressly addresses protections for transgender status.
These cases illustrate that the distinctions between sexual orientation, sex stereotyping, transgender status, and other similar categories can be very confusing. Because courts in different parts of the country have reached different results, companies with employees in multiple states may have differing rules.