The list of courts holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender individuals continues to grow, as a court in Texas recently followed courts in the 7th Circuit, the 2nd Circuit, and the 6th Circuit in adopting such a holding. This holding makes it increasingly likely that the Supreme Court will rule on this issue in the near future.
The case, Wittmer v. Phillips 66 Company, involved a transgender woman who was interviewing for a position with Phillips. The company ran a background check on this employee, and learned that she lied during her interview. This caused Phillips to rescind a job offer that it had made to her, which in turn caused her to sue Phillips, claiming that she was denied the position because she was transgendered.
The court found that there was no evidence that Phillips had discriminated against her because of her gender identity. Had it done so, however, it would have been in violation of Title VII, which it held, for the first time in the Fifth Circuit, prohibits discrimination based on gender identity. In coming to this ruling, the court agreed with the justifications provided by the 7th and 2nd Circuits for finding that Title VII prohibits transgender discrimination, holding that Title VII’s prohibition on gender-based stereotyping also brings under its umbrella a prohibition on transgender discrimination.
Going forward, there is now pretty considerable disagreement between courts around the country as to whether Tile VII prohibits transgender discrimination. Even the Justice Department has changed its view on this issue in recent years. This makes it pretty likely that there will be a Supreme Court decision on this issue in the relatively near future.
As to how employers should react to these decisions, they should continue to consider transgender discrimination as something that is against the law and should provide training to their employees about how to deal with transgender employees and job applicants. While it is unclear whether federal law prohibits transgender discrimination, a number of states, like Illinois, have laws that do so. Moreover, even if transgender discrimination hasn’t expressly been made illegal in a particular state, the fact that federal law is so unsettled over whether Title VII prohibits transgender discrimination means that an employer could still face a lawsuit if it discriminates against a transgender employee or job applicant. Just don’t do it.
