Saks says it has a legal right to discriminate against trans employees.

Saks Claims a Legal Right to Discriminate Against Trans Employees

Saks Claims a Legal Right to Discriminate Against Trans Employees

Outward
Expanding the LGBTQ Conversation
Jan. 9 2015 10:18 AM

Saks Claims a Legal Right to Discriminate Against Trans Employees

85264186-suit-is-displayed-in-the-window-of-a-saks-fifth-avenue
The Chicago Saks Fifth Avenue store, photographed in 2009.

Photo by Scott Olson/Getty Images

In December 2014, Saks Fifth Avenue responded to a sex discrimination lawsuit filed by Leyth O. Jamal, a former employee at a Saks store in Texas who claims she was harassed, then fired, for being a trans woman. Saks could have fought Jamal’s suit by insisting that her claims of harassment are false, or that she was terminated for reasons unrelated to her gender. But instead, Saks has claimed that it has a legal right to discriminate against trans employees based on their trans status.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

This tactic is quite odd, for two reasons. First, it is morally repulsive. Saks misgenders Jamal throughout its filings, referring to her as “he” and “him.” Even worse, when Saks quotes Jamal’s own complaint, it adds a stinging “[sic]” after every reference to Jamal as female, as if to assert that Jamal’s identification as a woman is factually incorrect. Saks, then, not only appears to condone discrimination against trans people; it also seems to refuse to accept the validity of a trans identity at all.

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But Saks’ trans-bashing legal strategy is bizarre for a second, more important reason: It’s legally untenable. Saks claims flatly that “it is well settled that transsexuals are not protected by Title VII” of the Civil Rights Act of 1964. This is, quite simply, untrue. Although the Supreme Court has not yet ruled that Title VII’s ban on sex discrimination covers gender identity, it has concluded that irrational sex stereotyping may qualify as discrimination “based on sex.” Following this judgment, several appeals courts have concluded that sex stereotyping includes trans discrimination and expanded Title VII’s protections to trans employees. Moreover, the Equal Employment Opportunity Commission ruled unequivocally in 2012 that Title VII forbids anti-trans discrimination—and while the EEOC’s rulings aren’t binding on courts, they’re generally afforded significant deference. Finally, the Justice Department itself interprets Title VII to cover “transgender status [and] gender identity.”

Given these developments, it’s just plain wrong to claim, as Saks does, that “it is well settled” that Title VII does not protect trans people. If anything, the opposite is true: It is increasingly well settled that Title VII does protect trans people. Even if Saks disputes that proposition, it should at least grapple with it, explaining why two federal appeals courts, the EEOC, and the Justice Department are wrong. Instead, Saks ignores the issue completely, disregarding an overflowing bucket of case law in order to assert, rather callously, that it has every legal right to harass and fire trans employees, at least in the state of Texas.

What’s going on here? Why would Saks—which, until now, had a 90 percent rating in the Human Rights Campaign’s Corporate Equality Index—declare a right to mistreat its trans workers? Normally, I would expect a catastrophe like this to come down to bad lawyering. But Saks is being represented by Ogletree Deakins, a respectable firm with widely renowned lawyers.* Surely Ogletree's attorneys understand that they're on the wrong side of the law here, so I can only assume that Saks pushed them toward putting forth this hideously misbegotten anti-trans argument.

And why would Saks do that? A cynic might wonder whether Saks is concerned that its employees did mistreat Jamal on account of her gender identity, and—afraid of losing a court battle on the merits of the case—hoped to slip out of the problem by claiming that such mistreatment would have been legal, anyway. Whether or not that’s true, Saks has already created a PR disaster for itself and probably can’t afford to drag this legal brawl out any longer. The company proudly claims, even now, that it doesn’t discriminate against trans people. If that’s true, Saks’ top executives should drop its anti-trans defense post haste, settle with Jamal, and hope this case goes away as quietly as possible. 

*Correction, Jan. 9, 2015: This article originally misidentified the firm representing Saks. It is Ogletree Deakins, not Katine & Nechman.