Today HRC took the rare step of suspending Saks Fifth Avenue’s Corporate Equality Index (CEI) score. The action was taken following Saks’ claims in response to a lawsuit that Title VII protections don’t apply to transgender employees and that the company is not legally bound by its own LGBT equality policies. While HRC honors the right of the company to vigorously defend itself against allegations of misconduct, the arguments made in Saks’ court filings go well beyond arguing the veracity of the allegations.
Leyth Jamal, a transgender former employee of Saks, filed an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964 alleging discrimination and harassment/hostile work environment based on her gender identity. In a motion to dismiss the case and in stark contrast to clearly established positions of the U.S. Department of Justice and the Equal Employment Opportunity Commission (EEOC), Saks astoundingly claimed that the “Plaintiff’s discrimination and harassment claims fail to state a claim upon which relief can be granted because transsexuals are not a protected class under Title VII.” Additionally, Saks goes on to claim that they are not bound by their own corporate non-discrimination policies because “employee handbooks are not contracts as a matter of law.”
The Equal Employment Opportunity Commission (EEOC) concluded in 2012 that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity. The decision makes clear that transgender people across the country who have experienced workplace discrimination can file a claim with the EEOC under existing federal sex discrimination law. Likewise, in December of 2014, U.S. Attorney General Eric Holder announced the U.S. Department of Justice will recognize transgender discrimination as sex discrimination. Additionally, in its response to the HRC CEI survey, the company chronicles its employee protections and benefits in its employee handbook.
“Saks’ arguments are hugely concerning to us,” said Deena Fidas, Director of HRC’s Workplace Equality Program. “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. 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.”
HRC has contacted Saks and asked them to clarify these two issues and amend their legal filings.