Last summer, the United States Supreme Court decided Bostock
v. Clayton County and held that Title VII of the Civil Rights Act of 1964 makes
it unlawful to discriminate against individuals for being homosexual or transgender.
140 S. Ct. 1731 (2020). The Fifth Circuit Court of Appeals recently decided Olivarez
v. T-Mobile USA, Inc., where it rejected the argument that Bostock altered
the standard for these individuals in their Title VII suits. No. 20-20463, 2021
WL 1945680 (5th Cir. May 14, 2021).
Elijah Olivarez, a transgender male, was employed with T-Mobile from 2015-2018, and, in September 2017, Olivarez stopped coming to work to “undergo egg preservation and a hysterectomy.” T-Mobile retroactively granted Olivarez leave from September to December 2017 and extended leave through February 18, 2018, but it denied Olivarez's second request for extended leave in March 2018. T-Mobile terminated Olivarez on April 27, 2018. In November 2019, Olivarez sued T-Mobile, alleging he was unlawfully terminated because of his transgender identification. He brought claims under Title VII, the Americans with Disabilities Act and the Family and Medical Leave Act.
The Southern District of Texas dismissed Olivarez's Complaint.
The Court dismissed his Title VII claim because Olivarez did not identify in
his Complaint any non-transgender colleagues with similar duties who received
preferential treatment. Olivarez moved for reconsideration because he argued Bostock
resulted in an “intervening change in the controlling law.” When his motion was
denied, he appealed the decision to the Fifth Circuit Court of Appeals.
Olivarez argued that Bostock changed the law and created
a lower standard for claims alleging discrimination based on gender identity. The
Fifth Circuit rejected his argument, holding that Bostock changed neither
the motion to dismiss nor the summary judgment standards with regard to gender
identity discrimination claims. The Court explained that plaintiffs alleging gender
identity discrimination under Title VII have the same burdens as any other type
of discrimination under Title VII -- i.e., a plaintiff must still plead sufficient
facts to make it plausible that he was discriminated against “because of” his
gender identity to survive a motion to dismiss and identify a more favorably
treated comparator to survive summary judgment. The Fifth Circuit’s reasoning
in Olivarez will be useful to employers in arguing against plaintiffs
who attempt to lighten their burden of proof under Title VII.
