Bloomberg Law
Feb. 7, 2019, 1:10 AM

LGBT Workers Not Covered by Federal Bias Law: 5th Cir.

Robert Iafolla
Robert Iafolla

A federal appeals court said its 40-year-old precedent that federal civil rights law doesn’t apply to gay workers also means that transgender workers aren’t covered.

A lower court was wrong to say the U.S. Court of Appeals for the Fifth Circuit hadn’t yet ruled on coverage of transgender workers, the circuit court said.

The circuit tossed a discrimination lawsuit by a transgender job candidate against Phillips 66 on other grounds. But the court’s decision clarifies that federal law doesn’t prohibit workplace bias against LGBT individuals within the circuit, which covers Texas, Louisiana, and Mississippi.

While the question of whether Title VII of the 1964 Civil Rights Act covers LGBT workers and job applicants continues to percolate in the courts, the U.S. Supreme Court has three petitions asking it to settle the issue. The justices are scheduled to consider granting the petitions during its private conference on Feb. 15.

The Fifth Circuit ruling stems from a discrimination lawsuit filed by Nicole Wittmer, a transgender woman who applied for an engineering job with Phillips 66. She claims she was denied the position because of her gender identity.

U.S. District Judge Lee H. Rosenthal assumed that transgender people are covered by Title VII but threw out the lawsuit because she found no evidence that Wittmer’s sex or appearance played a role in Phillips 66’s decision to withdraw the job offer.

The Equal Employment Opportunity Commission, which the Fifth Circuit allowed to participate in the Phillips 66 case, asked the court to rule that Title VII prohibits discrimination against transgender people.

Phillips 66 didn’t argue about Title VII’s coverage and instead focused on the plaintiff’s lack of evidence concerning alleged discrimination.

Dismissal Based on Lack of Evidence

The Fifth Circuit upheld Rosenthal’s dismissal but said she was wrong to say the circuit hadn’t addressed Title VII’s application to gender identity.

The circuit court’s 1979 ruling in Blum v. Gulf Oil Corp. that Title VII doesn’t prohibit discrimination based on sexual orientation “remains binding precedent in the circuit to this day,” Judge James C. Ho wrote for the three-judge panel.

Ho noted that Rosenthal said that the same Title VII analysis applies to transgender status and sexual orientation.

In addition, Ho penned a concurring opinion saying that the Blum ruling’s conclusion that Title VII doesn’t cover LGBT people “is also correct as a matter of faithful legal interpretation.” Ho’s concurrence ran about twice the length of the opinion he wrote for the panel.

Judge Patrick E. Higginbotham also wrote an opinion concurring with the panel’s decision, which appears to minimize the circuit’s reliance on Blum since the Supreme Court in 2003 invalidated laws criminalizing same-sex conduct in Lawrence v. Texas.

Phillips 66 spokesman Joe Gannon declined to comment on the ruling, telling Bloomberg Law in an email that the company is an equal opportunity employer.

The case is Wittmer v. Phillips 66, 5th Cir. App., 18-20251, 2/6/19

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Cathleen O'Connor Schoultz at; Terence Hyland at