Saks Fifth Avenue Has Legal Right To Discriminate Against Transgender?
Can they discriminate against Racial Minorities too??
Via Slate reports: 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.
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.
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.
Do you think Saks should be able to discriminate trans people because they are not protected bu Title VII?
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