Saks and the Right to Discriminate
Discrimina3on is no new topic in either the job market or in public rela3ons. If anything, in recent years the 3de has certainly turned against businesses that ac3vely discriminate against certain recognized groups. While that’s not to say it doesn’t happen, as Ronn Torossian reveals, companies tend to pay a higher price than they once did.
S3ll, there are those who want this debate to con3nue. They argue that employers have every right to choose who they want working for them. Even if that choice is apparently discriminatory. Others cau3on more covert selec3on processes that allow the companies to maintain their personal standards while also appearing to meet the leFer of the law.
Both of these posi3ons are currently being challenged by Saks & Co. According to a mo3on filed in federal court, Saks is asking for a discrimina3on lawsuit filed by an ex-‐employee to be dismissed, “because transsexuals are not protected under Title VII,” a sec3on of the 1964 Civil Rights Act that bans employment discrimina3on based on race, religion or gender.
According to the ex-‐employee, she was asked to behave in a “more masculine way” while at work, and was ul3mately terminated because she “spoke up in a hos3le work environment.” At ques3on in the case, though, is Saks’ own employee handbook, which claims not to discriminate based on gender iden3ty. Saks counters that handbooks do not cons3tute legal contracts.
Factually true, perhaps, but that perspec3ve could wreak havoc on Saks’ public percep3on. The message, of course, is that the law is the law and the employee handbook is really just a list of sugges3ons Saks can violate when it becomes convenient to do so. At least, that’s the posi3on some are taking in the marketplace of ideas.
That posi3on, and the passionate vitriol behind it, will no doubt move this case out of the courtroom and into the court of public opinion, where Saks will have a much more difficult 3me pleading its case. Par3cularly when Saks representa3ves are also on record saying no discrimina3on transpired in the case.
Let’s review…Saks is arguing that transgender discrimina3on is not condemned under the Civil Rights Act, and it is arguing that the employee handbook, which does say transgender persons are protected, does not cons3tute a legally-‐binding contract. However, company spokespeople are also arguing that no discrimina3on took place at all.
So, here’s where the message gets mixed. Was there discrimina3on against a group that is not protected, therefore presen3ng grounds to dismiss the case? Or was there no ac3onable discrimina3on at all? From a legal perspec3ve it is possible to hold both posi3ons at the same 3me. But as countless other cases have shown, the public has liFle tolerance for that sort of “nuance.”
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