Saks backs down from anti-trans legal rhetoric

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Saks Fifth Avenue backed away from its argument that a trans woman it fired isn't protected against discrimination under federal law, a claim that embroiled the company in controversy and earned it rebukes from LGBT allies.

The move from Saks came Monday in a federal lawsuit filed after the company's store in the Houston Galleria fired Leyth Jamal. The company's recent legal filings in the case generated a swift backlash from LGBT organizations who once considered Saks a leader in gay-inclusive policies. Saks operates 42 Saks Fifth Avenue stores across the country and 65 Saks Off 5th outlets. In Atlanta, Saks has a store in Phipps Plaza and three outlets.

Meanwhile, the U.S. Department of Justice filed a historic Statement of Interest in the case asserting that transgender employees are in fact covered under Title VII of the Civil Rights Act of 1964. 

“Today’s historic statement from the Department of Justice makes it very clear that transgender people are indeed protected by Title VII from workplace discrimination,” Human Rights Campaign legal director Sarah Warbelow said. “Saks also made the right decision by correcting its dangerous course of legal actions that sought to completely undermine those established protections. We are pleased that the case can now be resolved on the merits of the claims and not a sweeping negation of basic Title VII protections.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said DOJ's filing “will have an enormously positive effect not only in this case, but in other cases across the country.”

Saks withdrew its motion to dismiss a lawsuit filed by Leyth Jamal, who alleges she was wrongfully terminated based on sex in violation of Title VII. In the motion, attorneys for Saks argued transgender workers aren't protected against discrimination under Title VII — despite rulings to the contrary from federal courts, the Equal Employment Opportunity Commission and U.S. Attorney General Eric Holder. In 2011, a three judge-panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled that discrimination against a transgender person based on gender-nonconformity is sex discrimination. The ruling came in the case of Vandy Beth Glenn, who was fired from her job with the Georgia legislature in 2007 after announcing plans to transition from male to female. 

In the Saks case, the company's assertion drew outrage from LGBT groups, with HRC suspending Saks' score of 90 on the Corporate Equality Index. HRC also joined the National Center for Lesbian Rights in filing a brief in Jamal's case supporting her claim under Title VII. Meanwhile, New York Attorney General Eric Schneiderman launched an investigation into Saks' transgender-related employment practices in the Empire State. 

“Saks is confident that, as this matter proceeds, the facts will demonstrate that Plaintiff’s allegations are wholly without merit, that Saks did not discriminate against Plaintiff, and that Saks’ policies and procedures are effective in ensuring an inclusive and diverse workplace free of discrimination and harassment,” the company's attorneys wrote in withdrawing the motion to dismiss. 

In addition to wrongful termination, Jamal alleges she was subject to a hostile work environment, retaliation and breach of contract. 

Jamal was hired as a sales associate at the Saks Off 5th outlet store in Katy in 2011 before transferring to the Houston Galleria store in 2012. There, Jamal alleges she was forced to use the men's restroom and told by a manager to have a more masculine appearance, and not to wear makeup or feminine-style clothing. Meanwhile, one co-worker called Jamal a prostitute and threatened physical violence against her, according to her lawsuit. 

In July 2012, Jamal filed an EEOC complaint, alleging discrimination based on gender. Ten days later, she was fired, prompting her to amend the complaint to include a charge of retaliation. Several of Jamal's co-workers corroborated her claims, and the EEOC ruled in her favor. 

“Based upon the evidence, the Commission concludes that Charging Party was subjected to intimidation and harassment based on sex (male), and because of failure to conform to stereotypical male behavior in the workplace, in violation of Title VII. Further, the Commission concludes that Respondent has an unlawful policy or practice which denies employees access to restroom facilities consistent with their gender identity, in violation of Title VII,” the EEOC wrote. 

After conciliation through EEOC failed, Jamal filed her lawsuit. She is represented by Mitchell Katine of Katine & Nechman in Houston, along with Jillian Weiss of New Jersey. She now lives in New York.

In addition to asserting that Jamal isn't protected under Title VII, Saks has misgendered her in court filings and argued that Saks isn't bound by the nondiscrimination policy in its employee handbook, which includes gender identity. 

In a Jan. 20 court filing, Jamal called Saks' argument “astounding,” according to the Houston Chronicle.

In a motion filed Tuesday, Jamal describes Saks' argument as “astounding,” given earlier decisions by the same court and the federal employment commission. In the motion to dismiss, Saks argues that “it is well settled that transexuals are not protected by Title VII.”

Saks is represented in the case by Houston law firm Ogletree, Deakins, Nash, Smoak & Stewart. 

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