Saks Fifth Ave. Claims To Have The Right To Discriminate Against Trans Employees

Saks-Fifth-Avenue-Plus-SizesLeyth O. Jamal, a former employee of a Texas Saks 5th Avenue, filed a sex discrimination lawsuit against the company in December 2014 claiming she was harassed and fired for being transgender.

Rather than fight her claims as false or at the very least claim she was fired for reasons other than gender, Saks is making the bizarre move of insisting it has the legal right to discriminate against employees based on their trans status.

Let that sink in for a second. Saks’ legal strategy is to defend its right to terminate an employee based solely on the fact that they are transgender. If that sounds like a time warp it’s because it is.

Saks also refers to Jamal as “he” or “him” throughout its filings and even adds an insulting “[sic]” after female pronouns when they refer to her original claim.

But besides unnecessary insults and moral low ground, there’s another big problem with the retailer’s strategy — it’s not legal! Saks claims that “it is well settled that transsexuals are not protected by Title VII” of the Civil Rights Act of 1964.

Slate writes that:

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.”

We’re utterly baffled why Saks, which has previously scored a 90 percent in the HRC’s Corporate Equality Index, would choose to take this strategy. Legality aside (thought that’s still their biggest problem), Saks is creating its own PR disaster by asserting its right to harass and terminate trans employees.

Even if they somehow win in court, this is a lose/lose situation for everyone.

We hope the media attention this story receives inspires Saks to reconsider its position.