Comparators Still Required in Gender-Identity Discrimination Cases

John T. Melcon

Last week, the Fifth Circuit issued a reminder that although the Supreme Court’s recent landmark decision in Bostock v. Clayton County held that the sex discrimination prohibited under Title VII includes discrimination on the basis of sexual orientation or gender identity, one thing Bostock didn’t do was change the legal elements required to prove discrimination. As before, a plaintiff asserting discrimination won’t get far unless they allege their employer treated them worse than individuals outside their protected class.

The Fifth Circuit’s reminder accompanied the court’s rejection of a lawsuit filed by Elijah Olivarez, a former T-Mobile retail associate who identifies as transgender. Olivarez apparently stopped showing up for work in September 2017 to “undergo egg preservation and a hysterectomy.” Olivarez retroactively requested a leave of absence, which T-Mobile approved. T-Mobile later agreed to extend Olivarez’s leave through February 2018, but then denied Olivarez’s second extension request in March 2018. T-Mobile eventually fired Olivarez at the end of April 2018 for not returning to work.

In affirming the dismissal of Olivarez’s Title VII claim, the Fifth Circuit explained that Olivarez made “no allegation that any non-transgender employee with a similar job and supervisor and who engaged in the same conduct as Olivarez received more favorable treatment.” Although Olivarez argued that Bostock dispensed with the requirement for comparator allegations and evidence in Title VII cases, the court was unpersuaded. In the court’s words, “a plaintiff claiming transgender discrimination under Bostock must plead and prove just that—discrimination.”

The lesson? An employee taking issue with an adverse employment action does not—in itself—trigger liability under Title VII. As has always been the case, what matters is whether the employee has alleged, and can prove, the employer’s action was because of the employee’s protected characteristic(s). In the Fifth Circuit as elsewhere, a complaint that “does not contain any facts about any comparators at all” won’t do the trick.