Sixth Circuit Decisions Turn The Rules Concerning Sex Discrimination Inside Out

April 2005


Two recent decisions by the Sixth Circuit have turned traditional rules concerning sex discrimination and dress and grooming policies inside out.  In the first of these two decisions, Smith v. City of Salem, a transsexual firefighter alleged that his 24-hour suspension was “based on sex” after his co-workers commented that his appearance and mannerisms were not “masculine enough.”  The employer, Salem Fire Department, insisted that Smith was suspended because he violated a City and/or Fire Department policy.

The federal district court granted the City of Salem judgment on the pleadings, dismissing Smith’s federal and state claims.  The district court held that Smith was attempting to use sex stereotyping as an “end run” around his true claim, discrimination based on his transsexualism, which Title VII does not prohibit.

In his appeal to the Sixth Circuit, Smith relied on the U.S. Supreme Court’s decision in Price Waterhouse to support his claim that discrimination based on sex stereotyping warrants Title VII protection.  The Sixth Circuit agreed, holding that Smith had an actionable claim for sex stereotyping based on his gender non-conforming conduct and his transsexualism.  The Court analogized Smith’s claim to Price Waterhouse, where a woman who was considered “too masculine” and was told she should dress and act more femininely, successfully brought a Title VII claim based on sex stereotyping.  Extending the Price Waterhouse holding, the Sixth Circuit in Smith reasoned, “It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”

The Sixth Circuit’s reasoning also opened the door to other claims based on gender-conforming conduct unrelated to transsexualism.  According to the Court, “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as transsexual, is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”

In a more recent decision by the Sixth Circuit, Barnes v. City of Cincinnati, a transsexual police officer alleged that his termination was “based on sex” discrimination because his colleagues and superiors claimed that he lacked “command presence,” did not appear to be masculine, and needed to stop wearing make-up.   Barnes, a new police sergeant who lived off-duty as a woman, had arched eyebrows, a French manicure, and sometimes came to work with makeup or lipstick on his face.  Barnes alleged that he was intentionally discriminated against because of his failure to conform to sex stereotypes.  The City of Cincinnati maintained that Barnes was terminated because of his poor performance during the probationary training program.  The jury found in Barnes’ favor, and the City of Cincinnati appealed the decision to the Sixth Circuit.

Relying on its decision in Smith, the Sixth Circuit held that Barnes was a member of a protected class based on his “failure to conform to sex stereotypes” and therefore his Title VII claim was actionable.  Further, the Court held that there was sufficient evidence to support a jury verdict in Barnes’ favor.

The City of Cincinnati also argued that the jury instruction on mixed motive was erroneous.  Under the McDonnell-Douglas framework for discrimination cases, once the plaintiff has proven its prima facie case, the employer is given an opportunity to provide a legitimate, non-discriminatory reason for its adverse employment action.  The burden then shifts back to the plaintiff to show that the employer’s reasons are pretextual – false or weak reasons offered to hide or cover its discriminatory motive. 

In mixed motive cases, the employer has legitimate reasons for terminating the employee, but discriminatory factors also motivated the decision.  In those cases, the Desert Palace framework is applied.  The jury is instructed to rule in the plaintiff’s favor if he or she has proven by a preponderance of the evidence that discrimination was a motivating factor in an employer’s decision even if other factors also motivated the decision.  The City argued that the plaintiff was required to prove that its legitimate reasons were pretextual.  The Sixth Circuit acknowledged that the instruction did not fully comply with the McDonnell-Douglas framework, but found that the instructions “track[ed] the language in Desert Palace” and were therefore not erroneous.

The Smith and Barnes decisions have dramatically changed the landscape of sex discrimination cases.  Traditionally, cases involving discrimination against transsexuals have been excluded from Title VII protection.  Under Smith and Barnes, transsexuals and, arguably, all other classes of individuals who engage in gender non-conforming conduct are granted Title VII protection.   The Sixth Circuit’s decisions are in conflict with recent decisions from the Sixth Circuit itself and from other circuits.

Because of these decisions, employers’ traditional dress and grooming policies may be challenged to the extent they require conformance to traditional gender roles, e.g., requiring women to wear skirts or make-up, or preventing men from doing so.

At least until this conflict among the circuits is finally resolved, employers should attempt to create gender-neutral dress and grooming policies and enforce these policies in as gender-neutral ways as possible.

Please contact one of our Labor and Employment department attorneys if you have any questions.

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