Fifth Circuit Judge Diagnoses Transgender Discrimination Divide Under Title VII

By Lindsay H.S. Hesketh, Beth Ann Lennon & Bill Wright

U.S. Courts of Appeals are split over whether Title VII prohibits discrimination on the basis of sexual orientation and/or transgender status. See: https://shermanhoward.com/second-circuit-rules-title-vii-protects-sexual-orientation/; https://shermanhoward.com/transgender-claim-meets-dress-code/; https://shermanhoward.com/update-faragher-ellerth-policies/.  A judge on the Fifth Circuit Court of Appeals recently offered his explanation for the divide and a justification for the “traditional,” limited, view of Title VII.

The case was decided on the strength of the employer’s legitimate non-discriminatory reason for the employment action. But in a concurring opinion, Judge Ho gave his view on the sexual orientation/ transgender debate.  He suggests the debate comes down to a choice between two interpretations of the statutory text: (a) Title VII means we should not favor one sex and (b) Title VII means we should be blind to sex when making employment decisions.  On the anti-favoritism view, Title VII prohibits giving preference based on biological (and possibly, binary) sex, e.g., employers cannot favor biological males over biological females or vice versa.  Judge Ho writes that the gender identities and sexual orientation of men and women would not be factored into Title VII on this analysis.  On the blindness view, Judge Ho argues that Title VII would prohibit any form of distinction among sexes.  According to the Judge, the blindness view could result in a slippery slope for employers.  His primary examples are that employers may be prohibited from maintaining separate bathrooms and changing rooms based on sex.

Judge Ho also gives his reasons for believing the traditional, limited, interpretation of Title VII should prevail: The issues of discrimination because of sexual orientation and/or transgender status are too large for the courts to believe Congress meant to resolve them with just the phrase “because of sex.”  According to the Judge, Congress will have to resolve the issue.

Regardless of whether employers agree or disagree with Judge Ho’s concurring opinion, they should be aware of federal, state, and local laws in their jurisdiction(s) that might specifically address sexual orientation, gender identity, and transgender status discrimination, as well as the fact that the EEOC continues to take the position that Title VII already prohibits discrimination on the basis of sexual orientation or transgender status.  Furthermore, employee-relations involves more than just following the laws.  In dealing with this often touchy subject, employers should also consider their mission statements, diversity and inclusion policies, and the values they want to project to their employees, clients, and stakeholders.

Wittmer v. Phillips 66 Company, No. 18-20251 (5th Cir. Feb. 6, 2019).