HRC CEI

Do you all know what that means?

It is the Human Rights Campaign Corporate Equality Index, which how much companies support LGGT issues. Saks had a score a pretty respectable 90 out of a possible 100 points, but as we all know there is written policies and then there is the actual enforcement of those policies.

A few months ago the EEOC brought discrimination charges against Saks for Title VII violations against a trans employee and Saks answer floored the business community on two counts. The first was the fact that they said yes we do have a non-discrimination policy for gender identity and expression but we don’t have to follow it. According to Law360,

Jamal [the plaintiff] had also included a breach-of-contract claim in her suit, based on a non-discrimination policy included in Saks’ employee handbook. However, the retailer rejected that argument, saying that the claim should be tossed because an employee handbook is not a contract.

So what they are saying is that even though we prohibit discrimination against transgender employees, we don’t have to follow our policy.

The second issue was that the EEOC interpretation of Title VII was flawed because gender identity and expression is not protected by Title VII.

In the motion to dismiss, Saks cited a handful of cases in which a court found that trans identity was not protected by Title VII. Among those is 2007 Tenth Circuit decision in Etstitty v. Utah Transit Auth. In that case the appeals court ruled that Title VII only protects people from discrimination based on sex, and that “discrimination against a transsexual because she is a transsexual is not discrimination because of sex.”

According to Time this case could have important ramifications because,

Still, the Saks’ case could go either way. Courts have ruled in conflicting ways on the issue, and despite Americans’ common belief that there is a federal law barring discrimination against LGBT people, no such statute exists. While 18 states have non-discrimination laws that cover sexual orientation and gender identity (and three more cover just sexual orientation), Texas is not one of them. Consider same-sex marriage as a comparison: just because courts have been ruling in favor of allowing same-sex marriage, that doesn’t mean couples can get married in states where rulings on the issue are still pending.

“It is still not a settled question of law for the entire country and it won’t be settled until the Supreme Court addresses the issue,” says Minter. “There’s no way to secure certain and stable protections that can’t be undone except by states and the federal government enacting legislation.” In late 2014, Oregon Sen. Jeff Merkley announced that he would be proposing a comprehensive LGBT non-discrimination bill in the spring, though its chances are slim in the Republican-controlled House or Senate.

So this case could unravel all the protection that we have through court cases if this case goes to the Supreme Court.

Now back to the HRC, what does this say about their CEI how good of an index is it? And it is not just Saks, I have heard complaints from other trans people about how they face discrimination from companies that also have high CEI ratings. The Advocate wrote,

However, the federal Equal Employment Opportunity Commission and the U.S. Department of Justice both say that Title VII’s prohibition of sex discrimination extends to discrimination based on gender identity, HRC officials point out. Also, Saks touted its nondiscrimination policies in its response to the Corporate Equality Index questionnaire. Its most recent score in the index was 90 out of a possible 100.

“Saks’ arguments are hugely concerning to us,” Deena Fidas, director of HRC’s workplace equality program, said in the press release. “In its court filings, Saks attempts to secure a motion to dismiss Ms. Jamal’s allegations by simultaneously calling into question the validity of its own nondiscrimination policy and the larger, crucial protections afforded by Title VII. The policies our CEI advances are not window dressings for any company to prop up or disregard in the face of individual allegations of misconduct. Saks is publicly undercutting the applicability of its own policies reported in the CEI and we must suspend Saks’ CEI score until further notice.” HRC has contacted Saks and asked it to clarify matters and amend its legal filings.

So maybe the HRC instead of asking companies to rate themselves, the HRC should ask the employees to rate the company. Because what is important is how the companies treat there employees, companies can have the best polices on paper but if they do not feel that they have to follow their own polices or they do not enforce their policies what good are they?