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Transgender Employees Still Required to Meet Title VII Burden of Proof

The Fifth Circuit Court of Appeals dismissed a discrimination claim brought by a transgender employee because that employee failed to show the employer treated them differently.

Elijah Olivarez worked as a sales associate for T-Mobile for a couple of years. Early in Olivarez’s employment, a supervisor made negative comments about Olivarez’s transgender status. After Olivarez filed a complaint with human resources, T-Mobile reduced Olivarez’s hours. Olivarez requested and was granted leave to undergo egg preservation and a hysterectomy. T-Mobile denied an extension of the leave beyond six months and terminated Olivarez’s employment. Olivarez sued for sex discrimination and retaliation under Title VII.

The circuit court evaluated whether Olivarez established that T-Mobile treated them less favorably than individuals outside their protected class. In this case, Olivarez failed to demonstrate that T-Mobile treated them less favorably than other employees “similarly situated” outside of their protected class. Olivarez did not allege “any non-transgender employee with a similar job and supervisor and who engaged in the same conduct as Olivarez received more favorable treatment.” Without facts to support an inference that T-Mobile fired Olivarez because of gender identity, Olivarez’s discrimination claim failed. Olivarez argued that the U.S. Supreme Court’s decision in Bostock v. Clayton County created a lower standard for individuals alleging discrimination based on gender identity. The Fifth Circuit wholly rejected that argument, asserting all individuals alleging discrimination must show they were discriminated against “because of” their protected status.