US Court of Appeals for the Fifth Circuit Doubles Down on Position That Title VII Does Not Protect LGBT Employees

On February 6, the a panel of the US Court of Appeals for the Fifth Circuit held that Title VII of the Civil Rights Act of 1964—which protects employees from discrimination on the basis of race, color, religion, sex, and national origin—does not protect employees from discrimination on the basis of transgender identity. In doing so, the court also affirmed its own 1979 decision that Title VII does not protect employees from discrimination on the basis of sexual orientation. That interpretation of Title VII is at odds with the present interpretation by the Equal Employment Opportunity Commission (EEOC)—the agency charged with enforcing Title VII—as well as that of several other federal circuit courts.

In the 1970s and early 1980s, a small handful of courts in various circuits considered the question whether Title VII protected employees from discrimination based on their transgender status. At the time, a majority of courts concluded that it did not, strictly construing the protected characteristic “sex” to mean either male or female, nothing more or less. Using the same logic, courts refused to interpret Title VII as protecting employees from discrimination on the basis of sexual orientation.

In 1989, the US Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination “because of sex” under Title VII included discrimination based on “sex stereotyping.” That case involved an accountant who was passed over for promotions because the partners at the firm perceived her to be aggressive, in contrast to how they believed a woman should act. As the Ninth Circuit recognized in 2000, the reasoning behind excluding transgender employees from protection under Title VII was “overruled by the logic and language of Price Waterhouse.” Even more emphatically, the Sixth Circuit in 2004 pointed out that the decisions excluding transgender employees from Title VII had been “eviscerated” by Price Waterhouse.

After Price Waterhouse, discriminating against an employee for failing to conform to stereotypes of how individuals of that gender should act, is unlawful under Title VII. As a result, some courts correctly reasoned that discriminating against a man for being attracted to men (instead of to women)—more concisely described as discrimination on the basis of sexual orientation—is also unlawful sex stereotyping. Applying the same logic, discriminating against an employee for failing to dress in a manner consistent with stereotypes of his or her gender is also unlawful sex stereotyping.

By clinging to its pre-Price Waterhouse interpretation of Title VII and extending it to exclude transgender identity, the Fifth Circuit seeks to defy both binding law and historical trends.

Additional Reading

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

LGBT Workers Not Covered by Federal Bias Law: 5th Cir., Bloomberg Law, February 6, 2019