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Saks Is Fighting to Discriminate Against a Transgender Ex-Employee

The department store chain has filed a court motion arguing that "transsexuals are not a protected class" under employment law, while LGBT advocates have described the move as "deplorable."

by Meredith Hoffman
Jan 13 2015, 4:11pm

Photo by Paul Swansen

Department store giant Saks & Co. is battling for the right to discriminate against transgender staff, claiming there is no legal protection for such individuals.

The company has filed a federal court motion arguing that "transsexuals are not a protected class" under employment laws, in response to a transgender ex-employee's lawsuit that Saks fired her for her gender identity.

Saks' motion, filed in late December in the Southern District of Texas, argues that the woman has no right to sue because Title VII of the Civil Rights Act — preventing employment discrimination against minority groups — does not include transgender or LGBT individuals.

"It is well settled that transsexuals are not protected under Title VII. Thus, Plaintiff's alleged complaints were not protected," the motion says.

The "shocking" motion contradicts Saks' LGBT-inclusive policy — but it also speaks to a lack of federal legislation protecting transgender and LGBT workers, advocates told VICE News. Neither the Civil Rights Act, nor any other federal law, explicitly bans employment bias against these groups.

"There is some wiggle room," attorney Amin Alehashem, regional director for the Texas Civil Rights Project, told VICE News about Saks' claim of legal discrimination. "In some ways this is similar to the Civil Rights Movement of the 1960s — there was open bias against people of color but they didn't have protection... There is always a fight for disenfranchised minority groups to attain this protected class status."

'Saks can certainly raise the argument, but the answer has been yes, transgender people are typically protected.'

Several court decisions and statements by federal agencies have recently asserted that transgender and LGBT individuals are protected under the law. The US Equal Employment Opportunity Commission (EEOC) stated two years ago that Title VII includes diverse sexual preferences and identities, and the US Department of Justice announced in December that transgender discrimination was included in the law.

A total of 18 states also have employment protection for sexual minority groups, advocates told VICE News. (Texas is not included.) But explicit federal legislation is lacking.

"Saks can certainly raise the argument, but the answer has been yes, transgender people are typically protected," the plaintiff's attorney, Jillian Weiss, told VICE News.

Weiss said her client, Leyth Jamal, had worked at Saks in 2012 in Houston's Galleria mall, where fellow staff viciously harassed her. When she complained to her superiors, the 20-year-old was fired.

"She found it very upsetting — who wouldn't?" Weiss said of Jamal, who filed a lawsuit in 2012 against Saks.

Saks actually has a non-discrimination employment pledge — and its new motion has prompted the Human Rights Campaign (HRC) to take action against the corporation for "undermining their own corporate LGBT equality policies."

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"We find this to be absolutely deplorable," Fred Sainz, HRC vice president of communications for the HRC civil rights organization, told VICE News of Saks' court filing. The HRC has previously praised Saks' inclusive policies and given the company the high score of 90 in its Corporate Equality Index since Saks self-reported high tolerance, Sainz noted.

But in the court motion, Saks claims its own anti-discrimination employee handbook holds no legal weight — prompting the company to "dismantle the values upon which they base their policy," Sainz said.

Now, in an unprecedented action, HRC has suspended the company's equality rating altogether.

"Our action has nothing to do with the merits of the lawsuit — it has everything to do with Saks' response to the lawsuit," Sainz said. "Based on their answers and proof of those answers they were able to achieve a 90 on the index. It's a shame that with one foul swoop the company was willing to say they were just kidding in their answers."

Saks representatives did not respond to multiple calls and emails requesting comment, and Saks' lawyer told VICE News he was banned from commenting. But Kathleen Ruiz, a Saks' senior vice president, told Businessweek that "we feel it is important to state that it is Saks Fifth Avenue's position that we did not discriminate in anyway, and the allegations are not supported by the facts known to Saks."

Ruiz did not comment on the court motion, but simply said that the company "maintains a long history of policies and practices that are fully supportive of the LGBT community."

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To avoid such cases, some officials have been fighting to pass the Employment Non-Discrimination Act, which would add LGBT and transgender individuals to the list of protected parties. The legislation won wide support in a bipartisan Senate vote in 2013, but did not make it to a vote in the House of Representatives.

Advocates of the bill plan to bring the legislation again to the next Congressional session, Brad Jacklin, executive director of the Congressional LGBT Equality Caucus, told VICE News. He noted that the EEOC's decision banning sexual discrimination was "binding for federal agencies" but "untested" for private companies like Saks.

"We need the force of law to ensure that LGBT and transgender people aren't summarily dismissed because of a lack of legislation," Jacklin told VICE News. "At this point there is no explicit protection."

Follow Meredith Hoffman on Twitter: @merhoffman

Image via Flickr