Does Title VII Prohibit LGBT Bias?

By: Samantha Celona

As society progresses, more courts find that lesbian, gay, bisexual, and transgender (“LGBT”) rights are prohibited under Title VII.[1]  Fifth Circuit Judge James Ho, who was nominated by President Donald Trump, has recently rendered an opinion in Wittmer v. Phillips 66 Co., delving into the issue of Title VII’s applicability to LGBT individuals.[2]

In Wittmer, a transsexual woman, Nicole Wittmer, brought a claim against Phillips 66 Co. for rescinding her job offer because of her status as a transsexual woman.[3]  Southern District of Texas’ Judge Lee H. Rosenthal granted summary judgment in favor of the employer due to failure to make a prima facie case, nothing in his opinion that Title VII is applicable to Nicole Wittmer.[4]  He notes that the Fifth Circuit has “recognized that a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.”[5]

On appeal, the Fifth Circuit affirms the district court’s conclusion.[6]  However, Judge Ho opined in his concurrence that the Fifth Circuit should not recognize transgender or sexual orientation as a protected class under Title VII because that is the traditional view of the courts.[7]  The Fifth Circuit cites their 1979 decision in Blum v. Gulf Oil Corp., holding Title VII was not applicable to a discrimination claim based on sexual orientation.[8]

While the Fifth Circuit found that Title VII was not intended to protect LGBT individuals,[9] the Second and Seventh Circuits both recognized that Title VII does apply to sexual orientation.[10]  Meanwhile, the Sixth Circuit held that Title VII covers gender identity.[11]

The disagreement between Circuits regarding LGBT individuals’ status under Title VII leaves discrepancies, which need to be resolved by the Supreme Court.[12]  Currently, the Supreme Court is “pondering whether to take up th[e] . . . cases either separately or in tandem, and could add them to the court’s docket as soon as this month.”[13]  Thus, the Supreme Court may determine whether Title VII should protect LGBT individuals.[14]  If this occurs then the outcome of Title VII claims of discrimination brought by LGBT individuals will be consistent in all jurisdictions.[15]


[1] Vin Gurrieri, 5th Circ. Judge Argues Title VII Doesn’t Forbid LGBT Bias, Law360 (Feb. 7, 2019),

[2] Id.; Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. 2019).

[3] Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 629 (S.D. Tex. 2018).

[4] Id. at 637.

[5] Id. at 633 (citing EEOC v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 454 (5th Cir. 2013)).

[6] Wittmer, 915 F.3d 328.

[7] Id. at 333.

[8] Id.; Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).

[9] See Id.

[10] See Zarda v. Altitude Express Inc., 883 F.3d 100, 131 (2d Cir. 2018); see also Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 351-52 (7th Cir. 2017).

[11] EEOC v. R.G., 884 F.3d 560, 580 (6th Cir. 2018).

[12] See Gurrieri, supra note 1.

[13] Id.

[14] See id.

[15] See id.


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