Fifth Circuit Affirms That Title VII Does Not Prohibit Discrimination on Basis of Transgender Status

Citing to longstanding circuit precedent, the U.S. Court of Appeals for the Fifth Circuit stated that Title VII’s prohibitions on sex discrimination do not encompass discrimination based on sexual orientation or transgender status.

In addition to making this pronouncement in Wittmer v. Phillips 66 Co., the Fifth Circuit went on to find that the plaintiff had failed to establish a prima facie case of discriminatory failure to hire because she failed to show that any non-transgender applicants were treated better than she. Moreover the employer offered a legitimate non-discriminatory reason for the no-hire decision – certain misrepresentations the plaintiff made about her current employment status – and the plaintiff could not demonstrate that this was a pretext for discrimination.

This case highlights the split between federal Circuit Courts of Appeals on the question of whether Title VII coverage extends to sexual orientation and transgender discrimination, and stands in opposition to the Equal Employment Opportunity Commission’s position on this matter but in concordance with that of the Department of Justice. The issue has been appealed to the Supreme Court in three separate cases, but as of yet, the Supreme Court has not decided to hear the cases.