The Human Rights Campaign announced Thursday it is making a public push against Saks Fifth Avenue after the retailer argued in court that transgender employees are not covered from discrimination under the Civil Rights Act of 1964.
HRC is suspending Saks' largely positive score from its Corporate Equality Index, a ranking of companies' LGBT-related policies. The move comes less than two weeks after Saks & Co. told a court that a discrimination lawsuit filed by a transgender former employee should be dismissed because "transsexuals are not a protected class under Title VII" of the historic civil rights law.
Saks made the argument in a case brought by Leyth Jamal, a transgender woman who worked for Saks in Texas and was fired in 2012. Although there apparently is some dispute over the facts that led to Jamal's termination, at this point in the litigation Saks simply asked for the lawsuit to be dismissed because, the company argues, discrimination against transgender people is not illegal — not "a cause of action" — under the 1964 law.
Although Saks' lawyers state in the Dec. 29 filing that "it is well established that transsexuals are not a protected by Title VII," the lawyers completely ignore the bulk of the law's development in recent years — most notably the 2012 decision of the Equal Employment Opportunity Commission that Title VII does, in fact, protect transgender people from discrimination under its ban on sex discrimination. A similar view of the law has been taken by multiple appeals courts.
The Saks filing, moreover, came 11 days after Attorney General Eric Holder announced the Justice Department formally concurred with the EEOC's interpretation, noting in a memorandum, "I have determined that the best reading of Title VII's prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status."
Additionally, Saks argued that, because "policies in an employee handbook do not create a contract," the company's nondiscrimination policy cannot constitute the "contract" under which Jamal is suing for a breach of contract.
"Saks' arguments are hugely concerning to us," the director of HRC's Workplace Equality Program, Deena Fidas, said in a statement provided to BuzzFeed News. "In its court filings, Saks attempts to secure a motion to dismiss Ms. Jamal's allegations by simultaneously calling into question the validity of its own non-discrimination policy and the larger, crucial protections afforded by Title VII."
Regarding its Corporate Equality Index, an effort to alert consumers to pro-LGBT or anti-LGBT policies of companies, Fidas added: "The policies our CEI advances are not window dressings for any company to prop up or disregard in the face of individual allegations of misconduct. Saks is publicly undercutting the applicability of its own policies reported in the CEI and we must suspend Saks' CEI score until further notice."
Jillian Weiss, Jamal's lawyer in the case against Saks, told BuzzFeed News, "I don't have any problem with Saks strongly defending this case, but that doesn't require them to make statements that transgender people are not protected from sex discrimination."
"They can't both be a defender of LGBT equality and argue that there should be no LGBT equality," she added.
BuzzFeed News has asked a spokesperson from Saks for comment, but has yet to receive a response to the inquiry.
Asked about the Human Rights Campaign's action and whether Saks stands by its Dec. 29 court filing, Saks' Senior Vice President for Marketing and Public Relations Kathleen Ruiz, told BuzzFeed News, "Saks Fifth Avenue is proud of its proven track record in upholding a diverse, equitable, and rewarding work environment for Associates. However, as this matter is before the courts we are unable to comment further."
In a follow-up question, BuzzFeed News asked Ruiz to respond to the broader question of whether Saks Fifth Avenue, as a company, takes the position, as it did in the Dec. 29 filing, that transgender people are not protected from discrimination under the sex discrimination prohibition within Title VII of the Civil Rights Act.
Ruiz responded: "We do not comment on matters before the court however, we feel it is important to state that it is Saks Fifth Avenue’s position that we did not discriminate in anyway, and the allegations are not supported by the facts known to Saks.
"Saks Fifth Avenue is proud of its proven track record in, and remains committed to, upholding a diverse, equitable, and rewarding work environment for all of our Associates. Saks maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates."
BuzzFeed News has followed up, noting that the factual dispute is irrelevant at this point in the litigation, and reiterating that the question is whether Saks stands by the position made in the motion to dismiss that, regardless of the facts of any given case, anti-transgender discrimination is not covered by the sex discrimination ban in Title VII of the Civil Rights Act of 1964.
Asked whether Saks stands by the position made in the motion to dismiss that, regardless of the facts of any given case, anti-transgender discrimination is not covered by the sex discrimination ban in Title VII of the Civil Rights Act of 1964, Saks' senior vice president for marketing and public relations, Kathleen Ruiz, told BuzzFeed News, "We have no further comment."
Opening of Saks' Dec. 10 answer to Lyeth Jamal's complaint:
Opening of Saks' Dec. 29 motion to dismiss:
