A new decision from the United States Court of Appeals for the Fifth Circuit touches upon, but does not decide, whether Title VII prohibits discrimination against transgender individuals.
We have written here before about the federal law known as Title VII that prohibits discrimination based on “race, color, religion, sex and national origin.”
When originally adopted, the prohibition against sex discrimination was intended to protect the rights of women in the workplace.
Over time, the case law interpreting Title VII has evolved. It is now recognized, for example, that a female employer can be held liable for discriminating against a male employee.
What about sexual orientation and transgender status?
In recent years, questions have arisen as to whether the prohibition on sex discrimination applies to sexual orientation and/or transgender status. Some federal courts have concluded that it does.
The Fifth Circuit (which embraces Mississippi, Louisiana and Texas), however, has not yet done so.
In 1979, in the case of Blum v. Gulf Oil Corp., the Fifth Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. That case has never been overturned.
39 years later
In 2018, the issue again came before the Court in the case of Wittmer v. Phillips 66 Company.
Wittmer, a transgender woman, applied for and got a job with Phillips 66. Subsequently, Phillips 66 withdrew the job offer.
Wittmer contended that the job offer was withdrawn because Phillips 66 learned she was a transgender woman. Phillips 66, on the other hand, claimed that the offer was withdrawn because Wittmer had been dishonest in her job application.
The lower court where Wittmer filed her lawsuit noted that in the last two years, three other circuit courts of appeal had ruled that Title VII prohibited discrimination on the basis of either sexual orientation or transgender status.
The lower court found these decisions to be persuasive and concluded that Title VII should be interpreted the same way in the Fifth Circuit.
On appeal, Phillips 66 took no position on that question. Instead, it simply asked the Fifth Circuit to conclude that Wittmer had not presented any evidence that her transgender status played a role in the decision to withdraw the job offer.
The Equal Employment Opportunity Commission filed an amicus brief (that is, a “friend of the court” brief) asking the Fifth Circuit to rule that Title VII does indeed prohibit discrimination on the basis of transgender status.
The Fifth Circuit declines to act
Although presented with the opportunity to make such a ruling, the Fifth Circuit declined. The court found it unnecessary to answer that question because, even if such discrimination was prohibited, Wittmer had failed to present any evidence that Phillips 66 based its decision to withdraw the job offer because of her transgender status.
For now, in the Fifth Circuit, Title VII does not prohibit discrimination on the basis of sexual orientation or transgender status.
Looking at the trend throughout this country on such issues, however, it seems inevitable that such a ruling will be made sometime in the near future.
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