Fifth Circuit Opinion Affirming Dismissal of Transgender Employee's Title VII and ADA Claims Provides Valuable Insight into Dismissal Standard

-

    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, in 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 Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016), wherein it previously determined that although a plaintiff does not have to submit evidence to establish a prima facie case of discrimination under McDonnell Douglas at the 12(b)(6) dismissal stage, the plaintiff must "plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make his case plausible."   

    That certainly sounds contradictory.

    Finding that the plaintiff failed to plead any facts indicating less favorable treatment than others similarly situated outside the protected class. the Fifth Circuit affirmed the dismissal.

    Second, the case is interesting because it includes a provocative sound bite with no analysis.  More specifically, on the second page of the opinion, the Court notes, "An employer discharged a sales employee who happens to be transgender---but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination---that is ordinary business practice."  

    Yet, the Court's opinion does not include an analysis of the length of leave issue or explain what it meant by the phrase, "ordinary business practice."  

    In short, the opinion may be useful to defendants seeking an early dismissal.  A copy of the opinion is here:  https://www.ca5.uscourts.gov/opinions/pub/20/20-20463-CV0.pdf



Comments

Post a Comment

Popular posts from this blog

(Un)Intended Consequences? Can Employers be Sued Under the New Texas Heartbeat Act?

-
On September 1, 2021, the most restrictive abortion law in the country went into effect in Texas.  Known as the "Texas Heartbeat Act," the statute, which creates a new subchapter of Chapter 171 of the Texas Health and Safety Code, privatizes a right of action against people who aid and abet abortions in violation of the new law. More specifically, the statute provides that "any person" other than a state actor can bring an action against "any person" who: knowingly engages in [or intends to engage in] conduct that aids or abets the performance or   inducement of an abortion , including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter. ..(emphasis added). How could this affect employers?   First, how broadly will c...
Read more

Ten Things Texas Employers Need to Know About the New "No Need for a Firearm Carry Permit" Law

-
 At a time when gun violence is increasing across the country, and based on publicly available data, Texas currently ranks second in the nation (behind Illinois) in mass shootings for 2021, the Texas Legislature enacted the Firearm Carry Act of 2021.  Here's what Texas employers need to know: 1.     The effective date of the new law is September 1, 2021. 2.     The law applies to persons 21 years of age or older and not otherwise prohibited by state or federal law from possessing a firearm, and to those 18 years or older in the military. 3.    Persons who meet the criteria in #2 above will be able to carry a firearm without a government issued license or permit, which means they will not be required to take gun safety and handling courses as a prerequisite to carrying. 4.     The law does not prohibit an employer from prohibiting an employee who lawfully carries without a permit from possessing the firearm on the employer's premises. 5....
Read more

Are Private Employers Ready for the New Sexual Harassment Laws in Texas?

-
Texas is considered an employer-friendly state, so it may come as quite a surprise that several bills that significantly impact sex harassment law passed, without fanfare, in the last legislative session, and go into effect today, September 1, 2021.  More specifically, the legislature amended several sections of Chapter 21 of the Texas Labor Code, which includes the state's version of Title VII, to be more in line with the laws of California.  Here's what employers need to know: First, the legislature amended Chapter 21 to provide that with respect to sexual harassment , an "employer" is a person who employs 1 or more employees or "acts directly in the interest of an employer in relation to an employee."   What does this mean and why does it matter?   Until today, Chapter 21 has applied to employers with 15 or more employees; therefore, this amendment now covers virtually every employer with respect to sex harassment claims.  It also means that indivi...
Read more