transgender discrimination

Transgender Discrimination - Saks Fifth Avenue

Transgender Discrimination - The Lawsuit

A former employee of Saks Fifth Avenue is suing her former employer for transgender discrimination.  Saks has moved to dismiss, arguing that "transsexuals are not a protected class" under Title VII of the Civil Rights Act.  Saks claims that it "believes that all persons are protected against sex discrimination under Title VII" of the Civil Right Act.  Yet its court filings say the exact opposite.

The Plaintiff, Jeyth Jamal, a transgender woman, alleges that her managers referred to her as a man, instructed her to use the men's bathroom, and pressured her to present herself in a more masculine way.  She was also belittled and threatened by her colleagues.

The lawsuit is pending in federal court in Houston, TX.

Transgender Discrimination - The Law

The truth is, whether or not Title VII protects transgender individuals is an open question.  Title VII protects certain employees against discrimination on the basis of race, color, religion, sex or national origin.  The Supreme Court has not ruled on the issue of whether Title VII's prohibition against discrimination on the basis of sex extends to transgender discrimination, and lower court opinions are all over the map.  As a result, some states, including New York, have passed legislation which explicitly makes it unlawful to discriminate on the basis of sexual orientation and gender identity.  Unfortunately, New York is in the minority of states progressive enough to protect these people from discrimination.  The federal government has been similarly slow to act.  ENDA (a federal law designed to prohibit employment discrimination on the basis of LGBT status) continues to be held up in Congress.

Transgender Discrimination - The Upshot

How can discrimination against a person based on how that person expresses his or her gender not be considered gender discrimination? Does anyone honestly believe that the (alleged) treatment that Ms. Jamal endured is not related to her gender?  If she was born a woman, would there be any question?  Just imagine that a woman was referred to as a man, instructed to use the men's bathroom, and pressured to present her gender differently.  Surely that is discrimination.  Why does the fact that Ms. Jamal is transgender make it different?  Either the courts' understanding of Title VII has to change, or the law must change to protect LGBT people from discrimination.

lgbt employment discrimination

lgbt employment discrimination

Transgender Discrimination Law in New York City

Transgender Discrimination is illegal in New York City. Under the New York City Human Rights Law (“NYCHRL”), transgender individuals are protected against workplace discrimination.   The NYCHRL explicitly states that no one can be discriminated against on the basis of gender.  The law then defines gender as "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."   Thus, transgender individuals are entitled to the same workplace rights as all other individuals in New York City. If you feel that you have been a victim of transgender discrimination, or any discrimination based upon your gender, sexual orientation, race, disability, age, etc., please contact us. Similarly, if you were terminated shortly after you made an honest complaint of discrimination, you may be a victim of unlawful retaliation. Whether you have been victimized by transgender discrimination, or any other form of discrimination, we can help you fight back. One of our experienced Labor and Employment attorneys will get back to you withing 24 hours. Initial consultations are free, and we handle most cases on a contingency basis - we do not get paid unless we recover for you.

EEOC Rules Transgender Status Protected from Discrimination Under Title VII

Employment Discrimination on the basis of gender includes discrimination on the basis of gender identity and transgender status.  If you believe you are the victim of employment discrimination on the basis of your gender or gender identity, our New York employment discrimination attorneys can help you fight for your rights. The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that discrimination based on gender identity, change of sex or transgender status constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.

Mia Macy claimed that she was denied a job at the Bureau of Alcohol, Tobacco, Firearms and Explosives when she announced that she would be transitioning her gender from male to female.  Macy applied for the job as a man and was told that she would get the job pending a background check, but was informed the position was no longer available after stating that she would be undergoing a sex change operation.

Believing she had been unlawfully denied the position, Macy filed a charge with the EEOC.  The EEOC determined that claims of discrimination based on transgender status, also referred to as claims based on gender identity, are cognizable under Title VII.  The EEOC explained that Title VII's protections encompass a person’s biological sex, as well as their gender, which includes cultural and social aspects associated with masculinity and femininity.

In making its determination, the EEOC relied on U.S. Supreme Court precedent holding that Title VII forbids employers from penalizing employees who fail to conform to stereotypical norms.  Under that precedent, Macy would have been discriminated against if she was denied a position due to the perception that her transgender status did not conform to gender stereotypes.

A copy of the decision is here:

If you believe you have been a victim of employment discrimination on the basis of your gender or gender identity, please contact one of our New York employment discrimination attorneys.