Is it Legal to Discriminate Against Transgender Employees?

January 2015

Saks Fifth Avenue is fighting a fashion law case against a former employee. The ex-employee, Leyth Jamal, is transgender (born physically male but transitioned into female). Jamal filed suit alleging discrimination and harassment based on her gender identity.

Jamal was a Saks employee in 2012. Before being fired, Jamal allegedly encountered harassment and hostility, including physical threats, from people in the store. Although Jamal reported treatment to management, not much was done.

Saks claims that Title VII protections do not apply to transgender employees and that it’s not legally bound by its own LGBT equality policies.

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

Fashion lawyers for Saks may have missed that the Equal Employment Opportunity Commission in 2012 declared that Title VII protection extends to discrimination based on gender identity.

Saks’ claim that the company is not bound by its own non-discrimination policies is equally appalling interesting. Saks’ reasoning is that employee handbooks are not contracts as a matter of law.

It is reasonable that Saks would defend itself against any lawsuit brought against it. The arguments being used in this current case may also be found reasonably abhorrent.

Saks previously scored well in measures reviewing its treatment of the LGBT community and such employees’ partners. Saks previously scored a 90 out of 100 in the Human Rights Campaign’s CEI measurement.

While it should clearly not be legal to discriminate against transgender employees, it looks as though we may ultimately need a Judge to clarify such.

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