Was the employment offer rescinded because the employee was transgender?

The 5th Circuit recently decided a case in which a transgender woman was first offered a job by Phillips 66, and then had the offer snatched away from her.  Phillips changed its mind and rescinded the offer. Was that because the prospective employee was transgender?

The woman said yes but the court said no.  The court held that the woman misrepresented some important facts in her job interview.  In her interview she explained that she was seeking new employment because her current employer was proposing to move her into a new assignment that would involve too much travel. She didn’t want to do that, so she was looking for other work.

That sounded plausible to the interview committee, so Phillips 66 offered the woman a job, contingent on passing the background check. But when Phillips contacted the woman’s current employer they heard a different story.  She had been fired.  Phillips confronted the woman with this information, and she acknowledged that she had been fired. She thought it was “no big deal.”  Phillips 66 thought it was a big deal.  Offer rescinded.

Then the woman, soon to be known as “the Plaintiff,” claimed that the real reason for the rescission of the offer was her transgender status.

The Plaintiff sued the company, alleging sex discrimination in violation of Title VII.  This gave the court the opportunity to dive headfirst into the culture wars.  Is discrimination based on transgender status a form of discrimination “based on sex”?  While we’re at it, what about gay and lesbian employees?

The official holding of the court dodges all of those issues and instead rules in favor of the employer based on the simple fact that it had a legitimate, non-discriminatory reason for its decision.  All prospective employees—gay, straight, and transgender—have to tell the truth in a job interview.

So that was the ruling of the court, but the judges could not resist the temptation to weigh in on the juicier issues.  There are two “concurring” opinions, the longer of which asserts that discrimination based on sexual orientation is not the same as discrimination “based on sex” under Title VII. Judge Ho cites a 1979 5th Circuit decision (Blum v. Gulf Oil Corp.) along those lines and asserts that it is still good law. The other concurring opinion casts doubt on that, noting that the 1979 decision was “decided decades before Lawrence v. Texas invalidated laws criminalizing same-sex sexual conduct, and we have never relied on Blum for its holding that Title VII does not cover sexual orientation discrimination.”

For those interested in the status of the law pertaining to sexual orientation, the concurring opinions are must reading.  For HR directors the case carries a simpler lesson. See today’s Dawg Bone.

The case is Wittmer v. Phillips 66 Company, decided by the 5th Circuit on February 6, 2019. We found it at 2019 WL 458405.


Tomorrow:  A do-over on a D&A case.