A 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 Phillips ultimately rescinded its offer of employment, and Wittmer sued for transgender discrimination under Title VII.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.