Saks claims transgender employees are not protected from sex discrimination

Saks Fifth Avenue store in Houston Staff Reports

Saks Fifth Avenue store in Houston

Saks Fifth Avenue store in Houston

HOUSTON — Famed New York-based retailer Saks Fifth Avenue is asking that a discrimination complaint be dismissed, claiming that transgender employees are not protected by the Civil Rights Act of 1964.

The department store chain made the claim in response to a lawsuit filed by Leyth Jamal, a transgender former employee who worked in Saks’ Houston stores, alleging discrimination, harassment and a hostile work environment based on her gender identity.

Leyth Jamal

Leyth Jamal

Jamal’s lawsuit, filed in September, claims she was instructed to “separate her home life from her work life” by behaving in a more masculine way, and ultimately was terminated because she spoke up about a hostile work environment.

In a motion filed in federal court on Dec. 29, Saks denied the allegations, and countered that “although plaintiff’s discrimination claim is also couched in terms of ‘gender’ discrimination,” the complaint should be dismissed “because transsexuals are not a protected class under Title VII.”

Jillian Weiss, an attorney for Jamal, told Law360 that Saks’ motion is seeking to dismiss the suit without addressing the discrimination claims.

“The motion is particularly ironic because Saks has touted its protections for the LGBT community, issuing press releases congratulating itself on instituting protections based on both sexual orientation and gender identity,” Weiss said.

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Saks said in its motion that they are not bound by their own corporate non-discrimination policies because “employee handbooks are not contracts as a matter of law.”

The Equal Employment Opportunity Commission (EEOC) concluded in a landmark 2012 ruling that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity. In December, U.S. Attorney General Eric Holder announced the Department of Justice would recognize transgender discrimination as sex discrimination.

On Thursday, the Human Rights Campaign took the rare step of suspending Saks Corporate Equality Index (CEI) score. Saks had scored 90 out of 100 on the most recent CEI, the national benchmark for LGBT-friendly companies.

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