The Fifth Circuit Refuses to Extend Title VII to Sexual Orientation or Transgender Status

downloadOver the past two years, the Second, Sixth, and Seventh Circuits have construed Title VII of the Civil Rights Act of 1964 to prohibit employers from discriminating on the basis of either sexual orientation or transgender status.

Last year, the U.S. District Court for the Southern District of Texas, when confronted with the issue, referenced the other circuits and ruled that it assumed that an employee’s “status as a transgender woman place[d] here under the protections of Title VII.”  See Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). This past week, the Fifth Circuit Court of Appeals affirmed the district’s grant of summary judgment against the transgender employee, but clarified that in the Fifth Circuit (which covers Texas, Louisiana and Mississippi), Title VII affords no protections against discrimination by employers on the basis of transgender status or sexual orientation.

Specifically, the Fifth Circuit invoked its own opinion from 1979 stating that it remains the binding  precedent in this circuit.  See Blum v. Gulf Oil Corp., 97 F.2d 936 (5th Cir. 1979) (holding that Title VII does not prohibit discrimination on the basis of sexual orientation).  Furthermore, despite the amicus briefs from the EEOC and the National Center for Lesbian Rights asking the Fifth Circuit to hold that Title VII prohibits discrimination on the basis of transgender status, the court of appeals did not grant their request.

The Fifth Circuit affirmed the grant of summary judgment for Phillips 66 because the employee failed to present sufficient evidence to support a prima facie case of discrimination, and because the employee failed to present a genuine issue of material fact concerning pretext.  The evidence in this cased showed that Wittmer conditional job offer was revoked because the background check showed that she had been terminated by her previous employer, which contradicted her representations to Phillips 66 during her job interview.

BOTTOM LINE: The question of whether Title VII of the 1964 Civil Rights Act covers LGBTQ employees continues to percolate in the courts, and at least three petitions involving this issue are pending in the U.S. Supreme Court.  While the law in this area continues to develop, it may be wise for companies confronted with this issue to take a cue from Phillips 66, which sidestepped the issue of transgender protections under Title VII and instead focused on the lack of evidence that the employee experienced any discrimination in its job application process and that the company had a legitimate non-discriminatory reason to revoke the job offer.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at or (214) 722-7108.

Lessons from the Mavericks Sexual Harassment Scandal: Specific Steps Your Company Can Take to Avoid a #MeToo Situation

Mavericks Presser CH Monday KDFWBCME01.mpg_16.14.49.12_1519684038394.png_5007658_ver1.0_640_360On Wednesday, Mavericks released a 43-page report containing the results of a seven-month investigation into the allegations of a pervasive culture of sexual harassment that permeated the organization over the past 20 years.  The allegations first came to light in an article published by Sports Illustrated in February of this year.  The investigation report largely substantiates many of the facts described in the article and provides many recommendations for changes within the Mavericks organization. 

If your company is worried about the #MeToo movement (hint, every company should be) and is attempting to make sure that it eliminates sexual harassment among its employees, the recommendations from the Mavericks’ investigation report provide a good road map for doing so. 

Ask yourself, is your company doing the following: 

  • Increasing the number of women through the organization including in leadership and supervisory positions. 
  • Improving formal harassment reporting process and creating paths for victims to report misconduct
  • Evaluating, and holding accountable, all executives, managers, and supervisors on their efforts to eliminate harassment and improve diversity of all kinds throughout the organization
  • Conducting anonymous workplace culture and sexual harassment climate surveys on regular basis to understand the culture of the organization and whether problems exist
  • Establishing clear hierarchies and lines of decision-making authority within the organization
  • Strengthening and expanding Human Resources, and implementing clear protocols and processes for evaluating and adjudicating workplace misconduct issues. This should include providing clear communication to employees on the anti-harassment policy and how to report harassment. 
  • Providing “prompt and proportionate” and “consistent” discipline across the organization when harassment or misconduct has been substantiated. 
  • Providing regular training for all employees on sexual harassment (including bystander intervention training), and special training directed at managers and supervisors.  Leaders across the Company should participate in the training and take an active leadership role in providing trust and safety in the workplace. 
  • Adopting clear, transparent, office-wide processes for hiring, on-boarding, promotions, lateral transfers, performance valuations, salary increases, and discipline within the organization. This should include centralizing key employment functions within the Human Resources department. 
  • Collecting and using data to add value to the company and to identify weaknesses. 
  • Requiring that all leaders, managers, and supervisors engage in efforts to improve workplace culture and to ensure a diverse inclusive workplace.

BOTTOM LINE:  Eradicating sexual harassment in the workplace requires commitment from the upper echelons with the company, creation of clear anti-harassment policies, effective training, and consistent enforcement of such policies. If your company is committed to making a change, but not sure where to begin, the above recommendations provide a good starting check list for making such changes. 

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at or (214) 722-7108 or fill out the form below.



Timing Isn’t Everything in a Pregnancy Discrimination Claim

pregnant-worker-375x250The Fifth Circuit Court of Appeals recently joined the Second, Sixth, and Tenth Circuits in holding that where an employer shows that it had legitimate non-discriminatory reasons for firing a pregnant employee (e.g., non-performance), a mere fact that the employee was fired shortly after telling her employer that she was pregnant, doesn’t defeat employer’s stated reasons for termination.

In this case, the employee had a documented history of poor work performance and multiple write ups. Two months after she told her supervisor  she was pregnant, she was terminated for poor performance.  The employee argued that poor performance was just a pretext, but that she was really fired for being pregnant. The employer argued that pregnancy had nothing to do with it and that it had legitimate non-discriminatory for firing the employee.  The employee claimed that another management-employee told her during a social lunch that she was fired for being pregnant, but the court excluded this evidence as hearsay.  So, the only evidence of pregnancy discrimination that the employee could point to was the timing of her termination, which happened shortly after she told the employer she was pregnant.  The Fifth Circuit found that this fact alone was not enough to establish that the employer’s stated reasons for termination were just a pretext. Thus, theemployee must have other additional evidence to support its pregnancy discrimination claim.

TAKEAWAY: Where an employer shows it had legitimate non-discriminatory reasons for firing a pregnant employee, the fact that the employee was fired shortly after telling her employer she was pregnant, without more, won’t be sufficient to establish that employer’s stated reasons for termination were a pretext.

Leiza Dolghih represents both COMPANIES and EMPLOYEES in employment litigation and arbitration proceedings.  If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at or (214) 722-7108.


Break Time for Nursing Mothers at Work – A Right or a Privilege?

gisele-bundchen_0Many businesses routinely face the question of what to do when a nursing employee asks that she be allowed to take a break to express milk at work and that she be allowed to do so in a private space? Does an employer have to grant her request? What if a business does not have a private place for a mother to use? How many breaks is she allowed to take? For how long? Does an employer have to pay for the break time? This blog post answers these and many other questions that arise from this simple but very common situation and explains why, even when not required to do so under the law, it might be wise for a business owner to permit its female workers to nurse at work. Continue reading “Break Time for Nursing Mothers at Work – A Right or a Privilege?”

The Supreme Court Strikes Down The Defense of Marriage Act – Has Little Effect On Texas

Earlier this week, in a rare move to strike down a federal law, the United States Supreme Court declared the Defense of Marriage Act (DOMA) invalid because it violated the Equal Protection and Due Process clauses of the United States Constitution. While the LGBT community has hailed the ruling in United States v. Windsor as a major victory, the Court’s decision will have very little, if any, effect on Texas (and 70% of the states that do not recognize same-sex marriages).

What is DOMA? 

Bill Clinton reluctantly signed DOMA into law in 1996.  The bill’s congressional sponsor – Don Nickles (R) – explained that DOMA’s purpose was to “to make explicit . . . that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”  Thus, while the states remained free to recognize same-sex marriages, the federal government was choosing not to do so by passing this bill. According to the U.S. General Accounting OfficeDOMA affected more than 1,138 federal statutes  “in which marital status is a factor in determining or receiving benefits, rights, and privileges.”

Why did the Supreme Court Strike Down DOMA

The Court found that DOMA was unconstitutional because it violated “basic due process” principles and inflicted an “injury and indignity” of a kind that denied “an essential part of the liberty protected by the Fifth Amendment.”  Justice Kennedy explained that the stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws” and its essence was to “interfer[e] with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power.”  Thus, DOMA ensured that if any state decided to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.  In other words, DOMA wrote “inequality into the entire United States Code.”

Notably, the Court did not discuss what level of scrutiny should have applied to DOMA (rational vs. intermediate) under the Equal Protection Clause analysis, presumably, because it had already found a Due Process violation.

Justice Scalia’s dissent forewarns that this ruling paves the way to the Supreme Court striking down the states’ bans on same-sex marriages in the foreseeable future.

What Legal Impact Does the Court’s Decision Have in Texas?

The Supreme Court made it clear in Windsor that the federal government cannot deny benefits to those same-sex couples whom a state considers to be in a valid marriage.  Texas, however, along with 70% of the states, does not recognize same-sex marriages. In 2005, Texas voters approved a proposition that amended the State Constitution (Art. I, Sec. 32) to define marriage as consisting “only of the union of one man and one woman. Moreover, Texas Family Code sec. 6.204(c) prohibits the state or any agency or political subdivision of the state from giving effect to same-sex marriages or civil unions performed in other jurisdictions. Thus, Windsor created no new rights or privileges for same-sex married couples that live in this state.  They are still not entitled to any federal benefits under DOMA

Although over the past several years, cities of San AntonioAustinFort Worth, El Paso, and Dallas, Travis, and El Paso Counties, have independently passed their own rules providing health benefits for same-sex partners of their employees, Texas Attorney GeneralGreg Abbot, recently issued a legal opinion declaring such policies unconstitutional.  He explained that if the Texas courts were to consider the constitutionality of such benefits, in his opinion, they would find that “Article I, section 32 of the Texas Constitution prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it.” The cities and counties have responded by stating that they will continue to provide benefits to domestic partners.

Without a doubt, the fight for equality between same-sex and opposite-sex married couples, will continue in Texas in the near future, fueled by the Court’s decision in Windsor.  Meanwhile, however, Texas will remain at status quo.

The Effect of DOMA in Those States That Recognize Same-Sex Marriages 

If you end up moving from Texas to a state that recognizes same-sex marriages (MassachusettsCaliforniaConnecticutIowa,VermontNew HampshireNew YorkMaineMarylandWashingtonRhode IslandDelawareMinnesota, and the District of Columbia), you can expect to receive a multitude of federal benefits that are not available in Texas, including:

1. Social Security Survivor Benefits – Partner widows and widowers will now be able to receive these benefits.

2. Immigration rights – U.S. citizens will now be able to sponsor United States residency for their partners.

3. Military Benefits – Military personnel will be able to obtain benefits for their partners, including health insurance, increased base and housing allowances, relocation assistance, and surviving spousal benefits. In fact, the Defense Department has already announced that it will immediately begin the process that will lead to providing benefits to spouses and children in same-sex marriages.

4. Federal Employees Benefits – Same sex married couples will now qualify for health insurance, pension protections, and dozens of other benefits the federal government provides to its employees and former employees and their families.  You can find the whole list of them here.  The Office of Personnel Management has already announced that it will be working closely with the Department of Justice to provide additional guidance to federal human resource officials and employees regarding the changes to come.

5.  Federal Estate Taxes – Same sex married couples can now (1) file join income tax filings; (2) receive exemptions from federal estate taxes in the future; and (3) receive refunds for federal estate taxes already paid. 26 U.S.C 2056(a).

6.  COBRA Spousal Health Benefits – employees’ partners will be eligible for the continued health insurance coverage under the employer’s group health plan.  COBRA requires private employers with 20 or more employees to offer continued group coverage for a defined period to employees and their covered dependents under certain circumstances, including termination of employment and divorce.

7. Employer-Provided Health Benefits – Until now, the value of health benefits provided by employers to employees’ partners was treated as income and subject to federal income tax.  This is no longer true.

8.  Gift Tax – Same-sex couples will now be exempt from gift tax when transferring assets to each other.  Under DOMA, any gift between same-sex spouses of more than $14,000 began adding up to a lifetime limit of $5.25 million — after which a 40% tax was assessed.  They will no longer be subjected to this tax.

9.   Hundreds of other benefits that until now have been available only to married couples of opposite sex and have been denied to same-sex married couples.

UPDATE (8/29/2013):  On August 29, 2013, the U.S. Department of the Treasury and the Internal Revenue Service issued Revenue Ruling 2013-17, which states that a same-sex couple legally married in any jurisdiction will be recognized as spouses by the IRS for federal tax purposes even if the couple resides in a jurisdiction that does not recognize the validity of their marriage.  This Ruling confirms, however, that unmarried domestic partners and civil union partners will not be recognized as married for federal tax purposes, whether the partners are the same or opposite sex.

UPDATE (9/27/2013)On September 18, 2013, the U.S. Department of Labor (DOL) issued a Technical Release No. 2013-04 that provides a guidance to employee benefit plans, plan sponsors, plan fiduciaries, and plan participants and beneficiaries on the definition of “spouse” and “marriage” under ERISA and the U.S. Supreme Court’s decision in United States v. Windsor. Consistent with the IRS Ruling, the Release defines “spouse” to include any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  His practice includes commercial, intellectual property and employment litigation.  You can contact her directly at or (214) 722-7108.