Transgendered employees are a protected class under California state laws and federal law. The Justice Department and the Equal Employment Opportunity Commission hold it is illegal for employers to discriminate against transgendered employees. In a recent turn of legal events, Saks & Co. administrators in a federal motion asserted the company has the right to discriminate against employees for being transgendered.
According to the filing, Saks asked for the dismissal of a former employee’s discrimination lawsuit because transsexuals are not protected under Title VII.
Title VII of the Civil Rights Act bans employment discrimination based on race, religion and gender. According to reports, a transgendered woman alleges she was instructed to separate her work and home life and to begin behaving in a more masculine manner at work. The lawsuit alleges that she was ultimately terminated in retaliation for speaking up about a hostile work environment. Saks attorneys filed a motion in the Southern District of Texas, denying all legal claims. The defense team also alleges that though the discrimination is tied to gender, the discrimination is related to his status as a transsexual. In essence, the defense attorneys are arguing adverse employment action based on plaintiff’s status as a transsexual is grounds for a discrimination action.
After a review of the court documents, media sources have pointed out that the attorneys use the notation “[sic]” to describe the gender of the plaintiff – as though it is an error. Despite an internal non-discrimination policy, the brief states the employee handbook is not a contract, giving license to the company to discriminate as it pleases.
When questioned about the legal positioning in the case, the Saks Senior Vice President refused to comment on the litigation, but stated the company did not mean to discriminate in the court documents. Attorneys from the case also refused to comment on its use of “[sic]” in the court documents.
The attorney representing the plaintiff in the case called the motion “ironic” especially considering that the company has always taken a publicly pro-LGBT stance. According to recent reports, the Human Rights Campaign is suspending the rating of the company given the troubling legal argument set forth by the defendant retailer.
The Department of Justice announced a policy in a December memo says transgendered people are protected under Title VII. A 2012 ruling by the EEOC also holds gender identity discrimination as a form of illegal sex discrimination. Courts have come down on both sides of the issue, but the DOJ and the EEOC have stated their positions. While these statements have been issued, they do not have legal force until backed by a federal law or Supreme Court Ruling. A 2013 bill known as the Employment Non-Discrimination Act would ban anti-LGBT discrimination was passed in the Senate but died in the House. Advocates for the bill see these specific questions as proof of the need for the law.
Fortunately, workers in California are protected against transgendered discrimination. If your rights have been violated, our Orange County transgendered discrimination and LGBT rights attorneys will investigate your case and take appropriate legal action on your behalf.
Employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 949.375.4734.
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Age Discrimination in Tech Job Postings, July 6, 2014, Orange County Employment Lawyer Blog
California’s Top Employment Law Mistakes, Oct. 26, 2013, Orange County Employment Lawyer Blog