SCOTUS’ Bostock didn’t lower the bar on Title VII claims - 5th Circuit

by Reuters
Thursday, 13 May 2021 20:47 GMT

FILE PHOTO: A sign for a T-Mobile store is seen in Manhattan, New York, U.S., April 30, 2018. REUTERS/Shannon Stapleton

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A U.S. appeals court ruled that a trans former T-Mobile employee hadn't shown he was treated less favourably than non-trans workers

A U.S. appeals court has ruled that a transgender former T-Mobile USA Inc retail worker cannot pursue bias claims against the company, because he failed to allege that he was treated less favorably than non-transgender employees.

A unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals on Wednesday rejected Elijah Olivarez's claim that the Supreme Court's broad reading of anti-discrimination law in the 2020 case Bostock v. Clayton County lowered the bar for plaintiffs alleging bias based on gender identity and sexual orientation.

The court in Bostock held that discrimination against LGBT workers is a form of sex bias prohibited by Title VII of the Civil Rights Act of 1964.

But the 5th Circuit said that like plaintiffs alleging bias based on traits such as race or national origin, transgender workers must compare themselves to specific coworkers in order to show disparate treatment.

Jillian Weiss, who represents Olivarez, did not immediately respond to a request for comment. Neither did Washington-based T-Mobile and its lawyers at Thompson & Knight.

California-based Broadspire Services Inc, which administers T-Mobile's employee leave plan and is a defendant in the lawsuit, did not respond to a request for comment.

Olivarez began working at a T-Mobile store in Texas in late 2015, and claims a supervisor made demeaning and inappropriate comments about his gender identity. Olivarez says that after he complained to human resources, he was retaliated against by being reduced to part-time hours.

In September 2018, Olivarez took leave to undergo egg preservation and a hysterectomy, according to filings in the case. Broadspire approved Olivarez's request for two weeks of paid leave and about three months of unpaid leave, which was later extended for nearly three more months.

Olivarez's request to further extend his leave was denied, and T-Mobile fired him when he was unable to return to work. He sued T-Mobile and Broadspire in Houston federal court in 2019, accusing them of sex discrimination in violation of Title VII and disability bias under the Americans with Disabilities Act.

U.S. District Judge David Hittner last September dismissed the case. He said Olivarez had failed to state a claim under either law because he had not identified a non-transgender coworker who was not fired after taking extended leave.

In his appeal, Olivarez argued that identifying a comparator is only one way to show that unlawful discrimination occurred, and is not a requirement in a Title VII case.

He said the Supreme Court had made that clear in Bostock when it held that, to state a claim under the law, "it doesn’t matter if the employer treated women as a group the same when compared to men as a group."

But the 5th Circuit on Wednesday agreed with T-Mobile and Broadspire that while the Supreme Court may have broadened Title VII's protections, its ruling had not affected the legal standard to state a bias claim.

"Bostock defined sex discrimination to encompass sexual orientation and gender identity discrimination," Circuit Judge James Ho wrote. "But it did not alter the meaning of discrimination itself."

The panel included Circuit Judges Jerry Smith and Carl Stewart.

The case is Olivarez v. T-Mobile USA Inc, 5th U.S. Circuit Court of Appeals, No. 20-20463.

For Olivarez: Jillian Weiss

For T-Mobile: Micah Prude of Thompson & Knight

For Broadspire: Nicole Dailo of Nilan Johnson Lewis