No, it isn’t, but I understand why it might seem that way.
An email from ethics issue scout Fred calls my attention to the case of transgendered female Leyth O. Jamal, 23, who filed a sexual discrimination suit in September claiming that managers at a Saks store in Houston referred to her as a man, made her to use the men’s restroom and pressured her to dress as a man despite being aware of her transgender identity. She also claimed a male colleague repeatedly asked her whether she was a prostitute in front of customers and colleagues, and threatened her. Saks fired Jamal after she brought a complaint to the Equal Employment Opportunity Commission.
In federal court this week, Saks withdrew its Dec. 29, 2014, court filing asserting that transgender workers are not covered by the gender discrimination ban in Title VII of the Civil Rights Act of 1964. The company still denies that it discriminated, and has made statements about how it “believes that all persons are protected against sex discrimination under Title VII” of the Civil Rights Act of 1964, which prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. It had argued, however that the plaintiff had based her case not on sex discrimination but on the issue of gender identity and transgender status, which Saks believed fell outside of Title VII’s mandate.
Now Saks is only disputing that there was any discrimination, not that such discrimination was legal. The question posed to me: does this U-turn this look bad for Saks? Is it cynical and unethical? How can you simultaneously argue that what the client alleges isn’t actionable because there’s no law against discriminating against someone for gender identity, and that you didn’t discriminate on that basis, or any basis, anyway?
Lawyers have been ridiculed for centuries about this, but it is simply good lawyering. You address all of the opposition’s possible avenues of legal attack, and every conceivable defense, unless such a defense is spurious or unsupportable, drilling down so you block the claim in progressive stages. For example, in a murder case:
1. We say there was no death: the supposed victim’s body was never found.
2. If he is dead, however, and the body is found, it was an accident. There was no crime.
3. If it is determined that he was killed, my client had nothing to do with it.
4. Besides, the bloody knife with my clients fingerprints on it and the victim’s blood dripping from the blade was found due to an illegal search, so you have no evidence.
5. But even if my client did kill him, it was justified. He was defending himself.
6. Anyway, even if you don’t decide deadly force was justified, the defendant was out of his mind, so he’s still innocent. He’s not culpable.
7. If you do find him culpable, the law under which he was convicted is unconstitutional as it is applied.
Of course, this is a silly version: no lawyer would never make all of those arguments simultaneously, especially 3 and 4, but a competent defense strategy would be prepared to address them all if and when they were raised. There is nothing wrong with beginning a discrimination defense by arguing that the law being used doesn’t apply to the case. It is like arguing that a court doesn’t have jurisdiction: ” We don’t need to address the conduct of my client, because even if everything the plaintiff says is true (and we’re not saying that it is), there is no legal basis for a law suit.” The Saks withdrawal of its claim regarding Title VII simply says, “OK, that was a loser: you’re right. The law applies to gender identity discrimination, and we’re happy there is legal protection against this heinous practice. But Saks certainly would never do such a thing, and didn’t.”
Might a lawyer decide, after consultation with a client, that arguing in the alternative is a risky strategy? I’m sure it has happened. Most of the time, however, arguing in the alternative is less of a risk than omitting a defense to an argument that may require one.
In short, though it can appear to approach dishonesty (If you didn’t discriminate, why argue that the law allows you to discriminate?), arguing in the alternative is ethical, and it would be unethical not to argue in the alternative if a case required it.