On January 26, 2015, Saks Fifth Avenue withdrew a pleading that had sparked the attention of federal agencies and gender rights activists. In so doing, Saks abandoned its previously-pled position that Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute, does not protect transgender individuals. Gender rights activities tout the withdrawal as a victory.
A detailed discussion of the lawsuit and recent pleadings can be found here.
By way of brief background, the plaintiff, a former selling associate at a Saks Houston store, filed suit against Saks & Company and alleged that she was discriminated against because of her transgender status and because she failed to conform to gender-based stereotypes. In December 2014, Saks filed a motion in which it asserted, inter alia, that Title VII’s prohibition on sex discrimination does not protect transgender employees. Although legally supported, in the “court of public opinion,” Saks’ legal argument drew much criticism.
Ultimately, on January 26, 2015, Saks withdrew its motion “in contemplation of litigating the matter on the merits rather than asserting its legal defenses under Rule 12(b)(6) of the Federal Rules of Civil Procedure at this time.” In its motion, Saks maintained that it did not discriminate against the plaintiff, and that its policies and procedures are effective in ensuring a diverse workplace free of harassment and discrimination.
Shortly after Saks withdrew its motion, the United States Department of Justice filed a 16-page Statement of Interest in the lawsuit, citing its “strong interest in ensuring the proper interpretation and application of Title VII in order to eliminate unlawful employment discrimination” and “setting forth its views regarding the scope of Title VII’s coverage with respect to claims of sex discrimination by transgender individuals.” In particular, the DOJ noted that both of the federal agencies charged with enforcing Title VII (the DOJ and the Equal Employment Opportunity Commission) “have determined that Title VII’s prohibition of discrimination ‘because of . . . sex’ necessarily proscribes discrimination because of transgender status.” The DOJ specifically “request[ed] that the Court hold that Title VII’s ban on sex discrimination encompasses discrimination on the basis of gender identity, including transgender status.”
Although the Saks lawsuit is still in somewhat early stages, the DOJ’s pleadings filed in that case provide employers with a detailed view of the federal agency’s position and legal arguments on this issue. Employers can expect the EEOC will raise similar legal arguments in similar cases, to the extent it has not already done so. In case there was any doubt, it is clear that issues related to the scope of Title VII’s prohibition on sex discrimination will remain a significant topic in 2015.