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.

 The Continuing “Trans-formation” of Title VII: Texas Federal Court Holds Transgender People Have Title VII ProtectionA Texas district court recently held, for the first time in the Fifth Circuit, that transgender people are a protected class under Title VII—but the plaintiff still lost her case. In Wittmer v. Phillips 66 Company, the Houston-based federal court relied on recent opinions from the Second and Sixth Circuits to hold that the plaintiff’s “status as a transgender woman places her under the protections of Title VII.” Despite that protection, the court ultimately concluded that Phillips did not treat her differently based on that protected status.


Nicole Wittmer had a successful interview for a position as an engineer at a Phillips refinery. During the interview, Wittmer explained that she was interested in a new position because of the travel requirements of her current job. Phillips offered Wittmer the position, conditioned on the satisfactory completion of a background check. The background check revealed that, contrary to Wittmer’s representations in the interview, she had already been terminated by her prior employer. When Phillips asked her to explain this discrepancy, Wittmer began an aggressive email campaign claiming Phillips had discovered after her interview that she was transgender, and was changing its hiring decision for that reason. Phillips ultimately rescinded its offer of employment, and Wittmer sued for transgender discrimination under Title VII. At the close of discovery, Phillips moved for summary judgment on the grounds that transgender status is not protected under Title VII but even if it was, Phillips had a legitimate, nondiscriminatory reason for the decision—Wittmer’s apparent lie during the interview.

The District Court’s Decision

The district court recognized that, while it has long been the law that Title VII protects against discrimination based on a person’s failure to conform to traditional gender stereotypes, the Fifth Circuit has not yet extended Title VII to protect transgender persons. But the court noted that, over the last years, several other courts have broadened Title VII’s protections to include discrimination based on both transgender status and sexual orientation. The Texas court stated that these opinions from other courts — “applying the long-recognized protections against gender- or sex-based stereotyping” to transgender and sexual orientation discrimination — were persuasive and chose to follow that lead.

Although Wittmer won that battle, she lost the war. While the court held that her transgender status entitled her to protection under Title VII, it found no evidence that Phillips actually discriminated against Wittmer based on it. Instead, the court held that there was no evidence Phillips even knew that Wittmer was a transgender woman until after it had come to the conclusion that she had lied about her employment status during the interview. On that basis, the court granted summary judgment to Phillips. Wittmer is now appealing this decision to the Fifth Circuit.


This latest opinion continues a steady trend in favor of expanding Title VII to protect against discrimination based on sexual orientation and transgender status. While it is not yet the law of the land everywhere, many courts, states, and localities are making it the law. Cautious employers would be wise to acknowledge this trend and ignore LGBTQ status when making employment decisions. It is much easier to defend a claim based on a legitimate, nondiscriminatory reason (such as Phillips did in this case) than making decisions based on LGBTQ status and risk becoming the next test case.


Religious Liberty v. Gender Identity – Sixth Circuit Grants Summary Judgment to EEOC in Transgender Discrimination CaseLike the recent proliferation of sexual harassment discussions in the workplace, issues concerning transgender employees are slowly but surely confronting employers and policies that may reinforce sex and gender stereotypes. How should employers react if (and let’s be honest, when) they learn that an employee is transitioning from one sex to another? What are the potential consequences of adverse employment actions based on transgender status? EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. illustrates not only the expansion of the definition of sex discrimination under Title VII, but also the fragility of defenses to Title VII based on religious beliefs.


Aimee Stephens was biologically male and presented herself as male during the six years that she was employed as a funeral director at R.G. and G.R. Harris Funeral Homes. Stephens informed the funeral home owner, Thomas Rost, that she would be having sex reassignment surgery and begin presenting herself and dressing as a woman at work. A few weeks later, Rost terminated her, asserting that he sincerely believed that a person’s sex was an immutable God-given gift and allowing Stephens to present herself as a woman would violate his religious beliefs.

Stephens filed an EEOC charge alleging that she was terminated because of her sex. The EEOC made a reasonable cause determination against the funeral home, was unable to conciliate the charge, and ultimately sued the funeral home for violating Title VII by terminating Stephens on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.

Funeral Home Prevails in District Court

The funeral home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code because the policy equally burdened male and female employees. Alternatively, the funeral home argued that it should not be forced to comply with Title VII because employing Stephens while she presented herself as a woman would constitute an unjustified substantial burden on Rost’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act (RFRA).

At the summary judgment stage, the district court ruled that Stephens could not pursue a Title VII claim based on her transgender or transitioning status. Nevertheless, the district court found direct evidence that the funeral home had discriminated against Stephens on the basis of her sex because Stephens failed to conform to the funeral home’s sex or gender-based stereotypes. Despite its direct evidence finding, the district court granted summary judgment to the funeral home, holding that the RFRA precluded the EEOC from enforcing Title VII against the funeral home, as doing so would substantially burden Rost and the funeral home’s religious exercise. The court found that the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive means to achieve its presumably compelling interest in ensuring that Stephens was not discriminated against on the basis of her sex.

Sixth Circuit Reverses District Court and Grants Summary Judgment to EEOC

In a detailed opinion, the Sixth Circuit not only reversed the district court, but granted summary judgment to the EEOC. First, the Court agreed that the funeral home engaged in improper sex stereotyping when it terminated Stephens for wishing to present herself in a manner that contradicted the funeral home’s expectation of how a biological male should present himself. Highlighting Price Waterhouse v. Hopkins and its own decision in Smith v. City of Salem (also involving a transgender employee), the Sixth Circuit stated that the funeral home’s decision to fire Stephens “fell squarely within the ambit of sex-based discrimination” that these opinions forbid. The Court also noted that the funeral home failed to establish a non-discriminatory basis for Stephens’ termination and even admitted that she was not fired for performance-related issues.

Next, the Sixth Circuit ruled that discrimination on the basis of transgender and transitioning status violated Title VII. The Court explained that discrimination “because of sex” inherently included discrimination because of a change in sex. It added that:

“[A] transgender person is someone who ‘fails to act and/or identify with his or her gender’—i.e., someone who is inherently ‘gender-nonconforming.’”

Title VII required gender to be irrelevant to employment decisions, and gender was not irrelevant if an employee’s attempt to change his or her sex led to an adverse employment decision.

Regarding the funeral home’s RFRA defense, the Sixth Circuit explained that the funeral home had not met its burden. Under RFRA, the funeral home had to demonstrate that the government action at issue—i.e., the enforcement of Title VII—would substantially burden a sincere religious exercise. Although the Court conceded the sincere religious exercise, it held that the burdens that the funeral home identified were not substantial. In addressing the funeral home’s argument that allowing a funeral director to wear the uniform of the opposite sex would distract the loved ones of the deceased and hinder their healing process, the Sixth Circuit held that a religious claimant could not rely on customers’ presumed biases to establish a substantial burden under the RFRA. In addressing the funeral home’s second argument that forcing the funeral home to violate Rost’s faith would significantly pressure him to leave the funeral industry, the Sixth Circuit held that tolerating Stephens’ understanding of her sex and gender identity was not tantamount to supporting it, and bare compliance with Title VII did not amount to an endorsement of Stephens’ views regarding the mutability of sex. Because the funeral home did not establish that Rost’s religious exercise would be substantially burdened by requiring the funeral home to comply with Title VII, its RFRA defense failed. Still, “in the interest of completeness,” the Court clarified that even if Rost’s religious exercise was substantially burdened, enforcing Title VII was the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens.


The Sixth Circuit’s opinion undeniably illustrates the extent to which the federal government will go to enforce anti-discrimination laws as they relate to the LGTQI community. This case is one of the EEOC’s first lawsuits on behalf of a transgender individual and it would not be unrealistic to believe that more will follow. Consequently, employers should pay close attention to transgender rights in the workplace and the rulings of other circuit courts on related issues.

Employers should consider these guidelines:

  • Remain cognizant of your responsibility to prevent and address any form of sex discrimination, whether it involves sexual harassment, sex or gender stereotypes, gender identity, and/or disparate treatment on the basis of sex.
  • Properly train employees and supervisors on how to communicate, interact with, and/or discipline one another in ways that avoid hostile, offensive, or discriminatory conduct.
  • Ensure that any adverse employment action is supported by a legitimate, non-discriminatory reason, preferably one that is performance-related or involves the violation a known employment policy or procedure.

As demonstrated here, there is no guarantee that a person or institution’s religious beliefs will be a sufficient defense to evade liability under Title VII.