No, it isn’t, but I understand why it might seem that way.
“I didn’t do it, no one saw me do it, and you can’t prove anything!”
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.
____________________
Pointer: Fred
Sources: Buzzfeed, New York Times
Ethics Alarms 
If “she” was a physical and genetic male, then he/she/it had no business in a women’s restroom. Whatever this person’s personal fantasies are, it doesn’t negate the truth.
The post is not about the merits of the law or the lawsuit.
I wish I’d known about “arguing in the alternative” when I was a kid. I just thought parents had infinite ways of saying NO.
Sadly, it doesn’t work that way with parents.
One of my most favorite posts to date.
I take no issue with the tactics used in the lawsuit. Stating “what we did was not discrimination” along with “what we did was not against the law” are not contradictory.
I may not agree with Saks, their actions, or if the actions caused an actionable complaint. But the legal tactic is not contradictory, imo.
“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.”
How is this discrimination if the plaintiff was treated the same as all other persons born with the DNA of a boy and the part of a boy? Discrimination, at a minimum, requires being treated differently from everyone else.
I predict this discussion can be Godwinned in 2-3 moves…
You mean other males were called prostitutes? “Everybody has to put up with it” is not a defense to sexual harassment.
True, but it is only discrimination if the acts were because of, and not in spite, of transgender status.
That written, sexual harassment is a claim wholly apart from transgender discrimination.
Agree, and agree.
Are you asking a philosophical question, or a legal one? The legal answer is in http://jtweisslaw.com/wp-content/uploads/2015/01/Resp-to-Motion-to-Dismiss-JWF-1.19.19.08-Jamal.pdf
Philosophically…How do you know what the plaintiff’s DNA is? How does Saks? They haven’t mentioned “DNA” in their response.
I have no idea what the plaintiff’s chromosomes are. 1 in 300 men don’t have “male chromosomes” for example, and as far as I know a karyotype is not required for employment at Saks or anywhere else.
Neither is proof of genital configuration at birth, or currently for that matter.
One of the purposes of a trial is to determine whether the defendant sincerely believed that the plaintiff was born with the DNA of a boy and the parts of a boy, and whether the defendant required the plaintiff to use the men’s room because, and not in spite of, transgender status.
The Saks defence was not unethical.
It was MOST unwise.
You see, before then, Saks had a good reputation regarding GLBT issues. It had a policy handbook forbidding such actions as those alleged by the plaintiff, and there was a presumption that this handbook would be followed in good faith.
To argue in court that the handbook isn’t worth the paper it’s printed on, that it’s a sham, just for show and neither contractually binding nor enforcible may be a good argument in law. The reply by the plaintiff’s lawyers would appear to provide plenty of evidence to the contrary, but that’s up to the courts to decide.
What Saks doesn’t get to do is to rely on the existence of the manual afterwards, regardless of the court’s decision. They have admitted lack off good faith, that they assert a right to abandon the policy wherever and whenever they find it inconvenient. Whether they have that right or not in Texas is immaterial.
To further argue that Trans people are not covered by Title VII when there is evidence both that they are and are not (though you have to go back many years for decisions saying they’re not) is also not a sign of good faith when it comes to GLBT issues.
This is one area where a legal argument that may ethically be made – and should be considered by any competent lawyer, not to consider it would be unethical – should be judged a really, really, REALLY bad idea.
Like a baby food company arguing that lacing their product with ground glass and cyanide isn’t actually illegal, and they reserve the right to do it in future even if they didn’t do it in the case in question. Legally, they might be correct. The effect on sales though, whether there was ground glass and cyanide present in their product, would likely be counter-productive.
Most corporate ethics codes and personnel guides are boilerplate written by lawyers and seldom read. The case itself shows that the company’s lip service to GLBT tolerance and support was eyewash, and this episode proves it. Given that, the legal defense doesn’t give anything up that wasn’t lost, or more likely, was never there at all.
Consequences go well beyond the courtroom.
Even if they win this case – on the merits, or on a legal technicality – their name is Mud for even trying this on.
All of this was entirely foreseeable, though I admit that the swiftness of the reaction surprised me.
As regards the employee handbook being enforceable – see Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 501 (Tex. 1998).Milford v. Kelsey Seybold Med. Grp., P.A., No. 11-00-00022-CV, 2000 WL 34233659, at *2 (Tex. App.—Eastland Nov. 30, 2000) Aiello v.United Air Lines, Inc>/i>., 818 F.2d 1196, 1198–99 (5th Cir. 1987).and a pile of others..
Prof Jillian Weiss is good. IANAL of course. She is.
However, it’s a Texas court. The race is not always to the swift, nor the battle to the strong.
As an aside: I hate politics when it gets mixed up with the law. Even when it’s working for “my cause”. It stinks, bluntly.
Maybe a post on the ethics of it from a legal viewpoint? Where are the bounds for ethical behaviour when it comes to extra-judicial pressure?
I don’t know. The argument that this kind of thing is necessary to, if not produce a level playing field, but make it less tilted, sounds like rationalisation to me. Even if the game is so blatantly rigged that there’s no chance of winning on the merits without it.
Only about 98.7% of the time.
A contention rather undermined by the language of their response, referring to the plaintiff as “he” (paragraph 1 of the answer) and “she[sic]”.
Links to all documents, original complaint, original answer etc at http://jtweisslaw.com/jamal-v-saks/
Withdrawal of motion to dismiss
Click to access Withdrawal-of-motion.pdf