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Fifth Circuit Court of Appeals Requires Transgender Plaintiffs to Identify Comparators to Establish Title VII Discrimination

This recent decision from the Fifth Circuit Court of Appeals confirms that plaintiffs claiming discrimination based on transgender status are subject to the same pleading and evidentiary requirements as other discrimination plaintiffs.


Elijah Olivarez, a transgender male, was employed with T-Mobile as a retail associate from 2015 to 2018.  In September 2017, Olivarez stopped coming to work to “undergo egg preservation and a hysterectomy.” Upon request, T-Mobile retroactively granted Olivarez leave from September to December 2017. T-Mobile also granted Olivarez’s request for extended leave through February 18, 2018, but it denied Olivarez’s second request for extended leave in March 2018. T-Mobile terminated Olivarez on April 27, 2018.

In 2018, Olivarez filed suit against T-Mobile and Broadspire Services in the United States District Court for the Southern District of Texas, alleging interference, discrimination, and retaliation under the Family and Medical Leave Act (FMLA), gender discrimination under Title VII of the Civil Rights Act of 1964, and violation of the Americans with Disabilities Act (ADA). Broadspire administers T-Mobile’s leave program for its employees.

To support his discrimination claim, Olivarez alleged that T-Mobile made disparaging comments about his transgender status, and he also claimed T-Mobile used improper pronouns to describe him when talking about him in front of customers. After Olivarez filed a complaint with T-Mobile’s human resources department, T-Mobile reduced Olivarez’s hours for a two-month period.

The Southern District of Texas dismissed Olivarez’s complaint because (1) Olivarez didn’t sufficiently allege that he was disabled, and most notably, (2) he didn’t identify any non-transgender colleagues with similar duties who received preferential treatment in his complaint.  Olivarez appealed the decision to the Fifth Circuit Court of Appeals, challenging the dismissal of his Title VII and ADA claims.

Court’s holding

In Title VII cases, courts apply the well-recognized McDonnell-Douglas “burden-shifting framework.” Under that framework, a Title VII plaintiff must first establish a prima facie discrimination claim by showing: (1) the plaintiff is a member of a protected class (e.g., race, gender, sexual orientation), (2) the plaintiff is qualified for his or her position, (3) the plaintiff suffered an adverse employment action, and (4) the plaintiff was treated differently than similarly situated individuals in different classes. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  If the plaintiff establishes a prima facie case, the burden of proof shifts to the employer to articulate “legitimate, non-discriminatory” reasons for the adverse employment action, at which point, the plaintiff must prove the employer’s non-discriminatory reasons for the adverse employment action were merely “pretext” for discrimination. In Olivarez’s appeal, the Fifth Circuit specifically focused on whether Olivarez sufficiently identified similarly situated co-workers who received preferential treatment.

Last year, the United States Supreme Court determined that Title VII applies to discrimination claims based on a plaintiff’s sexual orientation or gender identity, a question that labor and employment attorneys and civil rights advocates grappled with for years leading up to the decision. Citing the recent Supreme Court decision, Olivarez argued that the U.S. Supreme Court eliminated the requirement for transgender plaintiffs to prove disparate treatment by identifying comparators in the workplace. The basis for Olivarez’s argument was that “comparator evidence” is one “method of demonstrating discrimination, but […] not a necessary one.” Olivarez further argued that he could state a prima facie claim as long as proved that his transgender played a role in his termination, at least “in part” and “even if other factors contributed to the termination.

The Fifth Circuit rejected Olivarez’s argument and concluded that transgender plaintiffs are held to the same standard of proof as other Title VII plaintiffs—that is, they must identify “comparators,” or non-transgender co-workers with similar work duties and supervisors who received more favorable treatment. In other words, Olivarez was required to prove “T-Mobile would have behaved differently toward an employee with a different gender identity.”

As for Olivarez’s ADA claim, the panel affirmed the dismissal because Olivarez failed to demonstrate that he suffered an adverse employment action due to his disability. The panel also noted that Olivarez’s FMLA claim was time-barred because he failed to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) for retaliation within 300 days of the alleged retaliation.  The three-judge panel was comprised of U.S. Circuit Judges James Ho, Jerry Smith, and Carl Stewart. (Olivarez v. T-Mobile USA, Inc., 997 F.3d 595 (5th Cir. 2021))

Bottom line

The key takeaway for labor and employment attorneys is clear: the requirement to identify comparators in support of a Title VII discrimination claim is indeed a “necessary one,” regardless of which protected class the plaintiff belongs to.  But employers should continue to bear in mind that sexual orientation and gender identity now enjoy protected status under Title VII;  if the employee in this case had pleaded his complaint differently, asserting that others engaged in the same behavior but were not fired, the outcome here could have been quite different.   Employers should make sure that they are enforcing rules and policies in a consistent manner and are not treating employees in protected categories more harshly than similarly-situated employees.