- Although the U.S. Supreme Court ruled last summer that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity, plaintiffs who allege transgender discrimination must still provide the same type of proof as any other plaintiff bringing a Title VII case, the 5th U.S. Circuit Court of Appeals has ruled (Olivarez v. T-Mobile USA, Inc., et al, No. 20-20463 (5th Cir.t, May 14, 2021)).
- The plaintiff, who is transgender, worked for T-Mobile as a retail store associate for several years before being let go. The plaintiff said in court papers that a supervisor allegedly made demeaning and inappropriate remarks about his transgender status. The plaintiff also said his hours were reduced after he complained to HR. The plaintiff, according to the court opinion, "stopped coming to work in order to undergo egg preservation and a hysterectomy." T-Mobile granted the plaintiff leave retroactively, a short period of medical leave, and then granted an extension of leave. However, a request for a further extension of leave was denied.
- The plaintiff sued, claiming interference, discrimination and retaliation under the Family and Medical Leave Act; discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and discrimination under the Americans with Disabilities Act. The district court granted employer's motions to dismiss the lawsuit on the ground that the plaintiff had failed to prove that he was treated less favorably than similarly situated employees outside the plaintiff's protected class. The 5th Circuit agreed. The appeals court said there was no allegation that any non-transgender employee with a similar job and supervisor and who engaged in the same conduct as the plaintiff received more favorable treatment. "Title VII," the court opined, "protects every American, regardless of sexual orientation or transgender status. It simply requires proof of sex discrimination." The ADA claim, the court said, failed for similar reasons.
The court rejected the plaintiff's claim that, after the trial court threw the case out of court, the U.S. Supreme Court in Bostock v. Clayton County changed the law and created a lower legal standard for those alleging discrimination based on gender identity. In Bostock, the nation's top court ruled that Title VII's prohibition against sex discrimination includes workplace bias against employees based on their sexual orientation and gender identity.
The appeals court in this lawsuit said that Bostock did not alter the meaning of discrimination and that a plaintiff must allege enough facts at the pleading stage to make it plausible that discrimination occurred because of the legally protected status. At the summary judgment stage of a lawsuit, when the claim relies on circumstantial evidence, a plaintiff in a Title VII case must identify a more favorably treated comparator in order to show discrimination.
"Bostock does not alter either of these standards," the court opined. In fact, the court observed, Bostock "expressly reaffirms these principles."