01/06/2015 06:38 pm ET Updated Feb 02, 2016

The Next Title VII Case Is Now Ready for Prime Time, and the Bigotry Is Visible in High Def

Last week I highlighted one of the first two cases brought by the EEOC on behalf of transgender litigants. The plaintiff's lawyer in that case is Jillian Weiss, and, as luck would have it, she is representing another client, Leyth Jamal, in a similar Title VII case as the new year begins.

I'm focusing on these cases for a number of reasons. Most importantly, this is the forum in which transgender rights will be progressing for the next few years. Absent near-term congressional action on the as-yet-to-be-filed Equality Act, and in the face of a serious slowdown in the progress toward protections in more states, this is where the action is. Also, this is the forum where the rights we have today, be they Title VII or state and local protections, are propelled forward thanks to the media surrounding these cases. This is the locus between the abstract nature of the law and the lived reality of individuals. Many companies know about the necessity to cover transgender persons under Title VII; their lawyers keep them up to date. Some don't know, so we need to keep telling stories, and, unfortunately, some don't care or are too inept in their internal corporate communications that embarrassing breakdowns occur. This is a story of one of those unfortunate instances, involving the luxury department store chain Saks Fifth Avenue.

This case follows the usual pattern. Ms. Jamal was subjected to a hostile work environment at the Saks department store in the Houston Galleria when she was employed there in 2012. The harassment was typical and brutal: routine misgendering, forcing her to use the men's room, and a general environment grounded in ridicule from her co-workers.

The response from the EEOC on Feb. 12, 2014, is also following what is becoming the usual pattern since the landmark Macy decision of April 20, 2012:

Based upon the evidence, the Commission concludes that Charging Party was subjected to intimidation and harassment based on sex (male), and because of failure to conform to stereotypical male behavior in the workplace, in violation of Title VII. Further, the Commission concludes that Respondent has an unlawful policy or practice which denies employees access to restroom facilities consistent with their gender identity, in violation of Title VII.

There are two twists, however, that make this case somewhat unusual. The first is that it is occurring during the time frame that the culture war in Houston over the Houston Equal Rights Ordinance (HERO) is proceeding. Before the passage of this comprehensive gender identity and sexual orientation anti-discrimination bill, Houston was the only major city in Texas without such local protections for any category of persons. The Houston anti-discrimination law was passed by the city council on May 28, 2014, and signed by Mayor Annise Parker, but has been the subject of attacks by right-wing fundamentalists ever since. Those attacks have included a failed referendum attempt, a lawsuit challenging the dismissal of the petition to referendum based on improper signature collection (shades of Montgomery County, Maryland, 2008), and an optically damaging effort, subsequently withdrawn, to subpoena records from the group of Houston clergy (Houston Area Pastor Council) who spearheaded the petition effort. The next battle will be in court in two weeks on Jan. 19.

The more interesting twist, because of its national implications, is the newly relevant question of the meaning of corporate nondiscrimination language in their HR policies. Conciliation failed in this case, but it shouldn't have, because Saks' internal policy explicitly prohibits discrimination based on gender identity. So the question is: How is it that Ms. Jamal suffered to the point of being fired and no one in the corporate headquarters put a stop to the harassment? Even more to the point, why are they still defending their actions, going so far as to state, in their recent motion to dismiss, with repeated misgendering of Ms. Jamal:

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.

No mention of the Macy decision, and references only to pre-Macy cases or cases that don't take Macy into consideration. As attorney Weiss says:

Saks is essentially claiming that transgender people shouldn't have protection from discrimination in the workplace, and that position is ironic given that Saks has recently lauded itself for paving the way for trans equality in the workplace.

So no mention of the state of Title VII law since 2012, no recognition of the Department of Justice's position spelled out explicitly last month, no admission that their own HR policy contradicts their entire legal argument, nor any reference to a ruling in the same Southern District Court in 2008 in the Lopez case won by Lambda Legal, where the court stated that trans discrimination is sex discrimination.

For us in the LGBT community, it's even more interesting because the Human Rights Campaign (HRC) recently credited Saks in 2013 with a score of 90 out of 100 on the Corporate Equality Index (CEI), recognizing their trans-inclusive anti-discrimination policy. I hope that Deena Fidis, Director of the Workplace Project at HRC, committed as she is to full protections, reaches out to Saks, and, if necessary, that President Chad Griffin will as well. There is no rational reason that this case needs to proceed in court, and HRC's team can make that case very effectively. But if they fail, it puts the entire Corporate Equality Index under a cloud.

Finally, for the trans naysayers out there, including the lawyers who don't recognize their rights when they are spelled out for them, I will say that just because a law is on the books doesn't mean that people will not ignore it at the risk of appearing stupid or foolish. It unfortunately happens all the time. When malice is the prime motivator, reason goes out the window, regardless of the law. ENDA or the Equality Act will suffer the same attempts at nullification while we continue to educate the country about the basic humanity of all trans persons. And at the end of day, our community's blindness to the importance of Title VII is no different from that of the Saks attorneys who ignored Macy and all of the cases built upon it.