Fifth Circuit Rejects Title VII Transgender Protection, but Grants Summary Judgment on Other GroundsIn Wittmer v. Phillips 66, Judge James Ho of the Fifth Circuit wasted no time stating the Fifth Circuit’s position on whether sexual orientation or transgender status are protected classes under Title VII – they are not. Interestingly, however, the defendant did not even raise that as a defense. In fact, the lower court and the Fifth Circuit both found in favor of Phillips 66 on other grounds. But it is pretty obvious from the majority opinion, and Judge Ho’s concurring opinion, that the Fifth Circuit wanted the world to know how it feels about the extent of sex discrimination protection under Title VII.

Nondiscriminatory Reason: Misrepresentation during the Interview

Nicole Wittmer, a transgender woman, applied for a position with Phillips 66. During her interview, Wittmer talked about her current employment with another company and the fact that travel with that job was why she wanted to change jobs. However, when Phillips 66 did a background check, it learned that Wittmer had actually been terminated from that company a month before. Disturbed by this inconsistency, Phillips 66 decided not to give Wittmer the job. Wittmer then wrote to them and alleged that Phillips 66 discriminated against her because of her transgender status. For its part, Phillips 66 said it had no idea about Wittmer’s transgender status before she sent that after-the-fact email and told her that the information would not have affected its decision anyway. Disagreeing, Wittmer filed a lawsuit alleging discrimination under Title VII based on her transgender status.

Phillips 66’s Defense

At the lower court level, Phillips 66 took no position on whether Title VII prohibits transgender discrimination. Instead, it moved for summary judgment arguing that Wittmer had not stated a prima facie case of transgender discrimination and, even if she had, that Phillips 66 had a legitimate, non-discriminatory reason for not hiring her—misrepresentation in her interview. The lower court granted summary judgment, and Wittmer appealed.

On appeal, Phillips 66 again decided not to take a position on whether Title VII prohibits transgender discrimination. Instead, it stood on the defense that it chose not to hire Wittmer because she didn’t tell the truth during her interview about her current employment.

Fifth Circuit Opinion

Although the Fifth Circuit ultimately agreed with the lower court that Wittmer didn’t establish a claim of discrimination and that Phillips 66’s reason for not hiring her was not pretextual, the court went out of its way to address the transgender Title VII issue. (The one that the defendant didn’t raise.) Judge Ho wrote the majority opinion and stated that although three other circuits have found that Title VII prohibits discrimination on the basis of sexual orientation or transgender status, the Fifth Circuit does not recognize that prohibition. Relying upon its 1979 Blum v. Gulf Oil Corporation decision holding that Title VII does not prohibit discrimination on the basis of sexual orientation, the Fifth Circuit rejected Title VII coverage for transgender status. Judge Ho also authored a 14-page concurring opinion in which he strongly takes issue with some of the developments in gender identity and transgender discrimination law.

Where Does That Leave Us?

This opinion leaves little doubt that the Fifth Circuit (which covers Mississippi, Louisiana and Texas), as of right now, does not recognize sexual orientation or transgender status as automatically protected classes under Title VII. Although Judge Ho’s concurring opinion takes some shots at the U.S. Supreme Court’s Price Waterhouse v. Hopkins decision on gender-stereotyping discrimination, the majority opinion did not hold that the Fifth Circuit rejected such gender-stereotyping protection. This opinion further sets up a circuit split that is likely to be decided by the U.S. Supreme Court sometime in the future.