Transgender Employee Allegedly Mistreated and Fired Is Not Protected Under Federal Law

Luxury retailer Saks and Co. is under legal scrutiny after an employee in Houston claimed that she was harassed and ultimately dismissed due to her transgender identity.

Leyth Jamal alleges that she was belittled, continually referred to by male pronouns, forced to use the men’s room and told to “separate her home life from her work life” by conforming to expected displays of gender identity.

She further claims that she was fired after raising a complaint with the Equal Employment Opportunity Commission, the federal agency tasked with enforcing non-discrimination laws as they apply to applicants and employees.

 

Recent Interpretations

The case is a somewhat tricky one because Title VII of the Civil Rights Act prohibits sex discrimination, but doesn’t specifically address transgender issues. This means that there is no federal law that explicitly protects transgender people from hiring discrimination or workplace harassment.

This is the argument lawyers retained by Saks have made, filing a motion in federal court to have the matter dropped not because the alleged discrimination did not occur, but because Jamal’s “transsexual” status does not place her in a protected class.

But in recent years, high-profile cases have equated discrimination against transgender people with sex discrimination.

EEOC spokesperson Justine Lisser, basing her viewpoint on a 1989 case regarding a woman who was told to behave more femininely to receive a promotion, says that “We have claimed that to discriminate against someone based on their gender identity is the same as gender stereotyping and therefore is discrimination on the basis of sex.” The case set a standard that discriminating based on how people conform to gender expectations is prohibited by law.

 

Rapidly Changing Perspectives

It was only three years ago, in 2012, that the EEOC made a landmark shift in the Macy v. Holder case, which concerned hiring discrimination against an in-transition individual. As part of that case, the agency first explicitly stated that it would be considering discrimination against transgender people as sex discrimination.

Even more recently, Attorney General Eric Holder announced Dec. 14 that the Department of Justice would also begin to defend the stance that Title VII applies to transgender status.

The outcome of Jamal’s case, however, is still uncertain. Texas is not one of the 18 states that prohibit discrimination against LGBT employees, and courts have handed down conflicting rulings in the past.

The attorney general of New York, Eric T. Schneiderman, announced that he is investigating treatment of transgender employees at Saks Fifth Avenue following the allegations against the company. Discrimination based on gender identity is outlawed in New York City by a local human rights law.