Fifth Circuit Takes Up Transgender Bias at Work

NEW ORLEANS (CN) – An attorney representing Phillips 66 told a Fifth Circuit panel Tuesday that the company did not decide against hiring a woman upon realizing she was transgender.

It decided against hiring Nicole Wittmer because Wittmer had said she was currently employed when actually she had been fired days prior, attorney Joy Soloway said.

“Phillips 66’s employment policy states it won’t discriminate based on sexual identity,” she said. 

But Wittmer’s attorney, Alfonso Kennard, said the fact that Wittmer is transgender had been clearly communicated at the time the employment offer had been rescinded by Phillips 66 because Wittmer had sent an email stating so.

“The email stated: ‘I am a transsexual woman,’” Kennard told the three-judge panel.

Wittmer’s email was sent days before Phillips 66 rescinded its offer of employment, he said.

According to her July 2017 lawsuit, Wittmer’s email stated, “I became aware that you all found out that I am a transsexual woman. No one ever comes out and says that is why they do not want you. But to make up a false reason is not Christian.”

Wittmer sued Phillips 66 for sex discrimination after Phillips rescinded its employment offer.

Phillips 66 maintains it decided not to hire Wittmer based on a background check that revealed she was no longer employed, as she had claimed.

Last April, U.S. District Judge Lee Rosenthal ruled in a landmark decision for Texas that Title VII protects transgender individuals from sex discrimination. Rosenthal also ruled that Wittmer’s case did not sufficiently allege sex discrimination and Phillips had put forth a legitimate, nondiscriminatory and non-pretextual reason for rescinding the job offer.

“The court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII,” Rosenthal wrote.

However, Rosenthal added, “The record shows no evidence that Phillips knew about Wittmer’s status as a transgender woman until after it had decided to rescind the offer. Phillips offered Wittmer the job after she met with a number of people for a day of in-person interviews. None of her interviewers raised any issues, questions, or comments about her appearance, sex, or mannerisms. Nothing in the record shows that her sex or appearance played any role in the decision to rescind the offer.”

Because Phillips 66 says it is an equal opportunity employer and therefore was not arguing that Title VII does not cover gender identity, the Fifth Circuit appointed Chicago-based litigator Adam Mortara of Bartlit Beck to argue it.

“No human being, no judge, no lawyer has ever said Title VII protects transgender,” Mortara told the judges Tuesday.

“No one told Judge Rosenthal that and so we’re all here,” U.S. Circuit Judge Jennifer Walker Elrod joked.

While other federal appeals courts have ruled on sexual orientation or transgender discrimination under Title VII, the Fifth Circuit has not.

Judge Rosenthal’s order says Wittmer sent other emails to Phillips 66 personnel as well, including one in which she explained why during her employment interview before a panel of five she had pretended to be employed, by her previous employer Agrium, when she was not.

“When I talk in a very loud area, buy (sic) voice lowers. And Agrium let me go because the manager kept getting feedback from the other that thought I was a man. I did not want to talk about it because it hurts me very much and I did not want to cry in front of any of you,” Wittmer wrote.

In addition to Elrod, a George W. Bush appointee, the Fifth Circuit panel included Judges Patrick C. Higginbotham, an appointee of Ronald Reagan, and James C. Ho, an appointee of President Donald Trump.

The judges did not indicate how or when they will rule.

Phillips 66 spokesman Joe Gannon said the company does not comment on pending litigation but it is an equal opportunity employer.

“We treat all individuals fairly throughout all phases of the recruiting process,” he said.

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