Saks Fifth Avenue was in court recently, filing a motion to dismiss a former employee’s discrimination lawsuit on the basis  of discrimination and retaliation. Transgender woman, Leyth O. Jamal, who was employed by Saks Fifth Avenue in Houston’s Galleria store, filed suit against the retailer, alleging that she was fired in retaliation for reporting a hostile work environment. Jamal alleges in her complaint that she was subject to harassment based on her trans identity, forced to use the men’s restroom, subject to intentional and repeated use of male pronouns by her coworkers, and ultimately fired. The luxury retailer, which has been lauded by the Human Rights Campaign’s Corporate Equality Index for its same-sex partner benefits coverage, gender identity protections, and other steps toward LGBT inclusion, responded to Jamal’s lawsuit with its own motion, arguing that Title VII of the Civil Rights Amendment of 1964 does not protect transgender individuals from discrimination, and thereby, fails to provide Jamal with a basis to file suit.

While Title VII explicitly protects race, color, sex, religion and national origin, sex has largely be construed to include discrimination based on sexual orientation or transgender identity, it does protect discrimination for failure to conform to sex stereotypes, which may provide some recourse for Jamal. Moreover, a recent memo from the Department of Justice suggests that an expansion of Title VII protection is upon us. Last month, in a memo entitled, “Attorney General Holder Directs Department to Include Gender Identity Under Sex Discrimination Employment Claims,” the DOJ held that it “will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.” Lastly, the the Equal Employment Opportunity Commission (“EEOC”) held in Macy v. Holder in 2012 that any sort of transgender discrimination is sex discrimination, regardless of whether it involves gender-based stereotyping, because it inherently involves taking sex into account. More to come …