Three federal circuit courts of appeals have ruled during the past two years that Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation and transgender status.
On Wednesday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit rejected the opportunity to join that trend.
However, the judges – all Republican appointees – appeared split on whether prior precedent in the Fifth Circuit actually permits discrimination based on sexual orientation.
In a unanimous seven-page opinion, Appellate Judge James Ho directly criticized Chief Judge Lee Rosenthal of Houston for ignoring Fifth Circuit precedent last year when she issued what was viewed as a landmark ruling that employment discrimination based on sexual orientation was prohibited under Title VII.
In response, Judge Patrick Higginbotham issued a one-page concurring opinion supporting Chief Judge Rosenthal’s position that the question of whether Title VII prohibits sexual orientation discrimination in the workplace is still unresolved in the Fifth Circuit.
Despite the back-and-forth, all of the federal judges involved in the case agreed on one thing: the plaintiff, Nicole Wittmer, has no case against Phillips 66 for employment discrimination under Title VII.
Judge Ho wrote that Wittmer’s lawsuit should be dismissed because Wittmer, a transgender woman, failed to provide the evidence required for the case to move forward to trial.
Wittmer sued Phillips 66 in 2016, claiming that the Houston energy company withdrew its job offer to her because she is transgender. Phillips 66 officials responded that they had no idea that Wittmer was transgender when they decided against hiring her and that the company decided against hiring her when it discovered discrepancies in her background check.
Chief Judge Lee Rosenthal of Houston ruled in favor of Phillips 66 in April 2018, stating that Wittmer provided insufficient evidence that she had been illegally discriminated against.
Despite rejecting Wittmer’s claims, Chief Judge Rosenthal said the Fifth Circuit had not yet issued an opinion on whether Title VII prohibited employers from discriminating based on sexual orientation. Citing the rulings in the other federal circuits, Chief Judge Rosenthal stated, “the court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII.”
Wittmer appealed to the Fifth Circuit. The EEOC filed an amicus brief in 2018 asking the Fifth Circuit to agree with Chief Judge Rosenthal on the Title VII discrimination issue. The EEOC did not, however, advocate for Wittmer’s case.
Phillips 66 argued that Wittmer should lose the appeal, but the oil giant declined to argue against Title VII’s expansion to sexual orientation. Phillips 66 has a stated policy prohibiting discrimination based on sexual orientation.
Because no party to the litigation opposed Chief Judge Rosenthal’s groundbreaking opinion on Title VII, the Fifth Circuit appointed Chicago litigator Adam Mortara as special amicus curie to argue the contrary interpretation of Title VII.
Exactly 30 days after the case was argued, the three-judge panel issued its opinion upholding Chief Judge Rosenthal’s factual finding that Wittmer’s case should be dismissed.
In the third paragraph of the ruling, Judge Ho took direct aim at Chief Judge Rosenthal’s statement that the Fifth Circuit “has not yet addressed the issue” of sexual orientation and transgender status in the workplace.
“But we have addressed the issue,” Judge Ho wrote, pointing to the Fifth Circuit’s 1979 opinion in Blum v. Gulf Oil Corp. “We expressly held that Title VII does not prohibit discrimination on the basis of sexual orientation. Yet the district court did not mention, let alone distinguish, Blum. Most notably, it did not contend that Title VII applies to transgender status but not sexual orientation.
“To the contrary, the court concluded that the ‘same’ analysis applies to transgender status and sexual orientation alike,” he stated. “Blum remains binding precedent in this circuit to this day.”
“Title VII prohibits sex discrimination, full stop,” Judge Ho wrote. “And it applies the same rules to everyone, without regard for sexual orientation or transgender status.”
Judge Ho also concluded his 22-page concurring opinion with a warning.
“I join in the decision to affirm the district court,” he said. “But I do so with concern that the people are losing faith in their institutions—and that our courts are giving the people reason to do so.”
Judge Higginbotham, in a brief one-paragraph opinion, pointed out that Blum was “decided decades before Lawrence v. Texas,” which invalidated laws criminalizing same-sex sexual conduct.
“We have never since relied on Blum for its holding that Title VII does not cover sexual orientation discrimination,” Judge Higginbotham wrote. “Neither party, in the district court or this court, relied on or questioned Blum’s continued vitality — so, wisely I think, we do not reach here to resolve Blum’s endurance or the question of whether Title VII today proscribes discrimination against someone because of sexual orientation or transgender status.
“We do not because we cannot, even with elegant asides,” Judge Higginbotham concluded.
The third member of the judicial panel was Judge Jennifer Elrod, who did not join either concurring opinions by Judge Ho or Judge Higginbotham.