Sorry! Civil Rights Act Does Not Apply to Transgenders, and That’s Just an Employee Handbook, Not a Contract.

by Neli Kharbedia

Leyth Jamal, who used to work for Saks Fifth Avenue in Houston, TX, alleges that she was verbally abused, compelled to go to the men’s bathroom, told to look “more masculine at work,” and terminated in 2012 based on her being transgender.[1] In addition, she was continually called “he and him.”[2] According to the lawsuit, “she was told she should separate her home life from her work life.”[3] Based on documents from the court, she was fired ten days after she sought help from the Equal Employment Opportunity Commission (“EEOC”) on the grounds of being harassed.[4] Jamal asserts breach of Title VII and asks for damages from the company and to stop Saks from acting in a discriminatory way in the future.[5]

The company answered with a motion to dismiss the case.[6] According to its statement, the company claims that it did not treat the worker in a discriminatory way and that Jamal’s complaint is not based on the facts.[7] Moreover, the company stated that transgender workers are not covered by the Civil Rights Act.[8] In its motion, Saks stated “that Title VII is a ‘prohibition against discrimination based on an individual’s sex’ and ‘is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.’”[9] In addition, Saks Senior Vice President Kathleen Ruiz stated that Saks has traditionally had “policies and practices that are fully supportive of the LGBT community and [their] LGBT associates.”[10] Based on the Human Rights Campaign, Saks claims its policy is nondiscriminatory covering gender identity, but the company’s brief asserts that “it is well-settled that policies” that are included in an employee handbook do not produce a contract.[11]

The 1964 Civil Rights Act bans employers in the United States from terminating workers on the grounds of their gender.[12] However, its application to employers discriminating against transgender workers is ambiguous.[13] There is not unambiguous federal law to prohibit employers from discriminating against transgender employees.[14] In addition, Texas is not like eighteen states that have laws that include sexual orientation and gender identity in their laws against discrimination.[15]

But, in 2012, the EEOC asserted that discrimination on the grounds of gender identity is a part of sex discrimination of Title VII.[16] According to the EEOC, discriminating against a person on the grounds that the individual is transgender is sex discrimination.[17] U. S. Attorney General Eric Holder stated that the Department of Justice agrees that Title VII of the Civil Rights covers transgender individuals.[18] Moreover, although no federal law exists that bans discriminating against transgender individuals, in later years, courts have agreed that it is not legal.[19] According to Shannon Minter, legal director for the National Center for Lesbian Rights, unlike cases from around ten years ago, “[e]arly cases from the ‘70s and ‘80s were negative.”[20]

“The fight for explicit protection in federal law very much continues and those efforts are not going to go away” according to Ian Thomson, legislative representative of the American Civil Liberties Union.[21] Some have compared this to Civil Rights Movement of the 1960s.[22] However, hopefully this will be an easily won battle.

[1] See Payton Guion, Leyth Jamal: Transgender Employee Says She Was Discriminated Against By Saks Fifth Avenue, The Independent (Jan. 14, 2015), http://www.independent.co.uk/news/world/americas/leyth-jamal-transgender-employee-says-she-was-discriminated-against-by-saks-fifth-avenue-9978265.html.

[2] Katy Steinmetz, Does Saks Have the Legal Right to Fire a Transgender Employee?, Time (Jan. 12, 2015), http://time.com/3664705/saks-transgender-lawsuit/.

[3] Guion, supra note 1.

[4] Id.

[5] See id.

[6] Steinmetz, supra note 2.

[7] Guion, supra note 1.

[8] Id.; See Steinmetz, supra note 2.

[9] Guion, supra note 1; See Steinmetz, supra note 2.

[10] Josh Eidelson, Saks Claims It Has the Right to Discriminate Against Transgender Employees, Bloomberg (Jan. 9, 2015), http://www.businessweek.com/articles/2015-01-09/saks-and-company-in-legal-fight-over-transgender-former-employee; See Steinmetz, supra note 2; Meredith Hoffman, Saks Is Fighting to discriminate Against a Transgender Ex-Employee, Vice News (Jan. 13, 2015), https://news.vice.com/article/saks-is-fighting-to-discriminate-against-a-transgender-ex-employee.

[11] Eidelson supra note 10.

[12] Guion, supra note 1; 42 U.S.C.A. § 2000e-2(a)(1) (West 2014).

[13] Guion, supra note 1.

[14] Guion, supra note 1; See Steinmetz, supra note 2.

[15] Steinmetz, supra note 2; See Guion, supra note 1; Hoffman, supra note 10.

[16] Guion, supra note 1; Steinmetz, supra note 2; See EEOC, Sex-Based Discrimination, EEOC, http://www.eeoc.gov/laws/types/sex.cfm (Feb. 14, 2015).

[17] EEOC, supra note 16.

[18] Guion, supra note 1; Steinmetz, supra note 2.

[19] See Steinmetz, supra note 2.

[20] See id.

[21] Guion, supra note 1.

[22] See Hoffman, supra note 10.

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