The Dallas Hospitality Employment Lawyer Blog

According to the plaintiffs in U.S. Pastor Council et al. v. Equal Employment Opportunity Commission, et al. , No. 4:18-cv-00824-O, In the United States District Court, Northern District of Texas, Fort Worth Division, who filed a motion for summary judgment on this issue last week, the answer should be yes. In U.S. Pastor , the plaintiffs contend that Bostock’s interpretation of Title VII does not prohibit discrimination against bisexual employees (as opposed to homosexual or transgender employees specifically referenced in Bostock) as long as the employer regards bisexual behavior or orientation as equally unacceptable in a man or woman .   In support of their argument, the plaintiffs cite the following language from Bostock : Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team.  Assuming the employer would not have tolerated the trait in a man, Title VII stands silent.   Bostock v. Clayton County, Georgia , 140 S.

    The Fifth Circuit's recent opinion in  Olivarez v. T-Mobile USA, Incorporated; Broadspire Services, Incorporated , No. 20-20463 (May 14, 2021) is interesting for two reasons.     First, it provides a useful analysis regarding whether, i n disparate treatment cases under Title VII or the ADA, a plaintiff must establish all elements of a  prima facie case under McDonnell Douglas to survive a Rule 12(b)(6) dismissal.     In Olivarez, the Court, citing to Swierkiewicz v. Sorema N.A ., 534 U.S. 506 (2002), said no, but its analysis belies this conclusion.  Under Swierkiewicz , as interpreted by the Fifth Circuit, to avoid a 12(b)(6) dismissal, there are two ultimate elements a plaintiff must plead to support disparate treatment claims: (1) an adverse employment action; (2) taken against a plaintiff because of his or her protected status.       To  determine whether the employer took action against the plaintiff because of his protected status (transgender), the Court also cited