Fifth Circuit Court docket Of Appeals Requires Transgender Plaintiffs To Determine Comparators To Set up Title VII Discrimination – Employment and HR

United States:

Fifth District Court of Appeal requires transgender plaintiffs to identify comparators in order to determine Title VII discrimination

July 09, 2021

Butler Snow LLP

To print this article, all you need to do is register or log in to

This latest ruling by the Fifth District Court of Appeals confirms that plaintiffs alleging discrimination on the basis of transgender status are subject to the same pleading and evidence requirements as other discrimination claimers.


Elijah Olivarez, a male transgender, worked for T-Mobile as a retail employee from 2015 to 2018. In September 2017, Olivarez stopped coming to work for “egg preservation and hysterectomy”. Upon request, T-Mobile granted Olivarez leave retrospectively from September to December 2017. T-Mobile also granted Olivarez’s request for an extension until February 18, 2018, but rejected Olivarez’s second request for an extension in March 2018. T-Mobile announced Olivarez on April 27, 2018.

In 2018, Olivarez filed a lawsuit against T-Mobile and Broadspire Services in the U.S. District Court for the Southern District of Texas for interference, discrimination, and retaliation under the Family and Medical Leave Act (FMLA), gender discrimination under Title VII of Civil Rights 1964 Act and Violation of the Americans with Disabilities Act (ADA). Broadspire manages T-Mobile’s vacation program for its employees.

To back up his discrimination allegations, Olivarez alleged that T-Mobile made derogatory comments about his transgender status, and he also alleged that T-Mobile used inappropriate pronouns to describe him when speaking about him in front of customers. After Olivarez filed a complaint with T-Mobile’s HR department, T-Mobile reduced Olivarez’s hours for a period of two months.

The Southern District of Texas dismissed Olivarez’s complaint because (1) Olivarez did not adequately claim that he was disabled, and most importantly, (2) he failed to identify non-transgender colleagues with similar responsibilities who were given preferential treatment in his complaint . Olivarez appealed the decision to the Fifth District Court of Appeals and appealed against the dismissal of his Title VII and ADA claims.


In Title VII cases, courts apply the recognized McDonnell-Douglas burden-shifting framework. In this context, a claimant under Title VII must first assert a prima facie right to discrimination by stating the following: (1) The claimant is a member of a protected class (e.g. race, gender, sexual orientation), (2) the plaintiff is qualified for his position, (3) the plaintiff suffered an adverse employment lawsuit, and (4) the plaintiff was treated differently from similarly situated persons in different classes. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). When the plaintiff presents a prima facie case, the burden of proof shifts to the employer to provide “legitimate, non-discriminatory” grounds for the negative employment action, whereupon the plaintiff must prove the employer’s non-discriminatory reasons for the negative action were employment measures just a “pretext” for discrimination. In the Olivarez appeal, the Fifth Ward specifically focused on whether Olivarez adequately identified similarly situated employees who were receiving preferential treatment.

Last year, the United States Supreme Court ruled that Title VII applies to claims based on a plaintiff’s sexual orientation or gender identity, an issue that labor and civil rights attorneys have pondered for years leading up to the ruling. Citing the recent Supreme Court ruling, Olivarez argued that the US Supreme Court removed the obligation for transgender claimants to demonstrate differential treatment by identifying comparative individuals in the workplace. The basis for Olivarez’s argument was that “comparative evidence” is a “method of demonstrating discrimination”, however […] none necessary. “Olivarez further argued that he could make a prima facie claim as long as it was demonstrated that his transgender had at least” partially “played a role and” even if other factors contributed to the termination “.

The Fifth Court dismissed Olivarez’s argument, concluding that transgender plaintiffs would have the same standards of proof as other Title VII plaintiffs – d more favorable treatment. In other words, Olivarez had to prove that “T-Mobile would have acted differently towards an employee with a different gender identity”.

As for Olivarez’s ADA lawsuit, the panel upheld the dismissal because Olivarez was unable to demonstrate that he suffered an adverse employment lawsuit due to his disability. The panel also found that Olivarez’s FMLA claim was statute-barred for failing to file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) for retaliation within 300 days of alleged retaliation. The three-person jury consisted of the US Circuit Judges James Ho, Jerry Smith and Carl Stewart. (Olivarez v T-Mobile USA, Inc., 997 F.3d 595 (5th Cir. 2021))


The most important finding for labor and labor lawyers is clear: the requirement to identify comparators in support of a claim to discrimination under Title VII is indeed “necessary”, regardless of which protection class the plaintiff belongs to. However, employers should continue to bear in mind that sexual orientation and gender identity are now protected under Title VII; If the employee had presented his complaint differently in this case and had claimed that others had committed the same behavior but had not been dismissed, the result could have been very different here. Employers should ensure that they consistently enforce rules and guidelines and do not treat workers in protected categories more harshly than workers in a similar position.

The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.

POPULAR ARTICLES ON: United States Employment and Workers

Remote worker: challenges in tax and labor law

Potomac Law Group

With safety restrictions now lifted as the COVID-19 vaccine becomes readily available and the percentage of the US population vaccinated increases, it is time for many employers to …

Check the restrictive employment contract agreement

Pavia & Harcourt

A recent New York District Court ruling in the Flatiron Health, Inc. v. Carson case found that an employer’s restrictions on a former employee were unenforceable.

Comments are closed.