Employment & Labor Insider

On Wednesday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas) affirmed summary judgment against a transgender employee who claimed discrimination under Title VII.

In Wittmer v. Phillips 66 Company, the court said that a 40-year-old decision addressing LGBT rights under Title VII was binding precedent. The court had found in 1979 in Blum v. Gulf Oil Co. (without any discussion), that "discharge for homosexuality" did not violate Title VII or 42 U.S.C. Section 1981.

But this week's Wittmer decision didn't actually turn on whether Title VII prohibited transgender discrimination. 

The plaintiff was suing over the withdrawal of a job offer. According to the evidence, the company discovered during post-offer background checks that she had misrepresented her employment status. (She had led the company to believe that she was currently employed elsewhere when she had actually been terminated.) Because of the misrepresentation, the company made the decision to withdraw its job offer -- before anyone at the company even knew that the plaintiff was transgender.

Thus, regardless of whether gender identity discrimination violated Title VII, the plaintiff could not create "a genuine issue of material fact" that would allow the court to send the case to a jury.

In related non-news, the U.S. Supreme Court still hasn't decided whether to review the three LGBT-Title VII cases in its "waiting room": Altitude Express v. Zarda (sexual orientation), R.G. and G.R. Harris Funeral Homes v. EEOC (gender identity), and Bostock v. Clayton County (sexual orientation), and it may be too late now for the cases to be briefed and argued in time for the Court's October 2019 term. But I'm still watching, and 2020 is just around the corner!