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Wittmer v. Phillips 66

Case Concerning Employment Discrimination Based on Gender Identity Under Title VII

Key Date: February 6, 2019
Status: Awaiting Further Action
Legal Team: Private Counsel
Type: Employment Discrimination

Case Overview:

Wittmer v. Phillips 66 is a case concerning employment discrimination based on gender identity or expression. The case centers on Nicole Wittmer, who was offered employment with Phillips 66 after a job interview, but her job offer of employment was rescinded after her transgender status was disclosed. Wittmer filed a lawsuit in the Southern District of Texas against the employer.

The case argues, as many courts have ruled in the past, that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on gender identity. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBTQ people from employment discrimination.

Latest in the Case:

On February 6, 2019, a three-judge panel from the 5th Circuit Court of Appeals ruled against Wittmer, deciding that the facts of the case do not support Wittmer’s claims of anti-transgender discrimination. The 5th Circuit also stated that the Circuit had previously ruled that gender identity discrimination is not barred by Title VII, but it did not rely on this as its reason for affirming the judgment below and it did not discuss whether that previous ruling was a correct statement of current law, which has substantially evolved since that prior ruling.

The plaintiff has not yet announced her next steps in the case.

Case History:

Here’s an overview of key dates and rulings in the case:

  • May 31, 2015: Nicole Wittmer interviews for a position as an Instrument and Reliability Engineer with Phillips 66 at the Borger Refinery in Borger, TX. She is offered the position on August 10 but the offer is rescinded in early September 2015 following a series of back-and-forths between Phillips 66 and Wittmer’s previous employer.
  • October 2016: Wittmer files a charge of discrimination against Phillips 66 with the Equal Employment Opportunity Commission. After discovery in the case, Wittmer files a motion for summary judgment.
  • April 4, 2018: U.S. District Court Judge Lee H. Rosenthal grants Phillips 66’s motion for summary judgment. The judge concludes that Title VII does permit claims by transgender individuals; however, she concludes that Wittmer failed “to point to or submit record evidence making a prima facie case that Phillips discriminated against her because of her transgender status or a failure to conform to sex stereotypes. Even assuming a prima facie case, there is no record evidence to support an inference that Phillips’s stated reasons for rescinding her offer were false, pretextual, or that Wittmer’s transgender status was a motivating factor in the decision to rescind the offer. 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.” Wittmer appeals to the 5th Circuit Court of Appeals.
  • January 8, 2019: Oral argument before the 5th Circuit Court of Appeals is held, with Lambda Legal arguing in support of the plaintiff.
  • February 6, 2019: The 5th Circuit rules against the plaintiff, deciding that the facts of the case do not support Wittmer’s claims of anti-transgender discrimination. The 5th Circuit also stated that the Circuit had previously ruled that sexual orientation discrimination is not barred by Title VII and that the district court had concluded that the same analysis applied in that case applies to gender identity discrimination, it did not rely on that previous ruling as its reason for affirming the judgment below and it did not discuss whether that previous ruling was a correct statement of current law, which has substantially evolved since that prior ruling.

Last Updated February 12, 2019

5th Circuit Ruling

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