Among Fortune 500 companies, 91% prohibit discrimination on the basis of sexual orientation, and 83% prohibit discrimination based on gender identity. [Source] But, under federal law, circuit courts remain split as to whether Title VII of the Civil Rights Act of 1964 forbids discrimination based on LGBT status.
So, let’s say you’re a Fortune 500 company accused of LGBT discrimination in a jurisdiction in which the law may permit that type of abhorrent behavior.
Do you defend by arguing that the law permits LGBT discrimination?
I’ve made clear several times on this blog that I would never do that for a client. Rather, I would stick to arguing that my client never discriminated in the first place.
And according to this report from Robert Iafolla at Bloomberg Law, Phillips 66 is defending claims of transgender bias the same way.
Here’s more from the article:
Phillips 66 is headed to a federal appeals court to defend itself against transgender discrimination claims, but the Texas-based energy company won’t argue that bias based on gender identity is legal.
Phillips 66 told the U.S. Court of Appeals for the Fifth Circuit that it can win without reaching that issue, so the court called on an outside lawyer to make the case that federal law doesn’t prohibit discrimination on the basis of gender identity.
The company’s decision to fight allegations that it discriminated against a transgender job applicant without arguing she wasn’t protected by federal law highlights corporate America’s concern about being labeled anti-LGBT. Litigating against LGBT rights to defend employment decisions runs the risk of tarnishing a company’s image, especially in an era when younger workers increasingly want to be part of a diverse workforce.
Good for Phillips 66!
(Assuming the company didn’t discriminate in the first place. Otherwise, not so much.)