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Fifth Circuit Reiterates Title VII Does Not Prohibit Sexual Orientation Discrimination

The Fifth Circuit declared Title VII does not include protections based on sexual orientation even though it was not essential to its disposition of the case.
Nicole Wittmer, a transgender woman, applied for a position with Phillips 66. She underwent four interviews (including one in person) and was offered the position provided she passed a background check. Phillips 66 notified her the background check came back with an issue; she had misrepresented her employment status by failing to disclose her termination by her previous employer. Wittmer sent an email to human resources, accusing the company of transgender discrimination. Four days later, her job offer was rescinded.
Wittmer alleged discrimination in violation of Title VII. The district court, in ruling on a summary judgment motion by Phillips 66, stated that Title VII prohibited transgender discrimination, noting a lack of precedent by the circuit court on the issue. However, the court dismissed the case because Wittmer failed to show discrimination was the reason for her rescinded job offer. In taking up the appeal, the Fifth Circuit Court of Appeals pointedly noted it had “addressed the issue” through its prior decision finding Title VII did not offer protection from sexual orientation discrimination. Nevertheless, the circuit court affirmed the dismissal on the grounds that Wittmer failed to meet the basic requirements for a discrimination case. She did not show non-transgender applicants were treated more favorably than she and thus the job rescission was pretextual. Notably, Phillips 66 chose not to argue against Title VII protection but rather focused on Wittmer’s lack of evidence regarding discrimination.