"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Friday, August 19, 2011

Smith v. City of Salem

Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Circuit 2004).

Factual & Procedural History: Smith was a male lieutenant in the fire department.  Smith worked in the fire department for seven years without any negative incidents.  Smith began to transition to female.  At first, not telling anyone.  However, coworkers began to question Smith's changing appearance.  Smith approached Supervisor to explain transition and have Supervisor resolve coworker concerns.  Supervisor agreed not to say anything to fire department Chief, but did so anyway.  Chief then met with city "Law Director" to make plans to terminate Smith, based on Smith's transsexualism.  Later, Chief and Law Director met with city Executive Body to discuss plans for terminating Smith.  This meeting did not follow Ohio statutory requirements for city meetings to discuss employment actions.  The plan that came out of the meeting was to require Smith to undergo psychological evaluations.  They thought he would either refuse the evaluations or resign.  If he resigned, so the plan went, they would be free of him, but if he refused, he could still be fired for insubordination.  City Safety Director Willard was against the plan, and told Smith about it after the meeting.  Smith got a lawyer.  The lawyer called City mayor to inform City that Smith had representation, and that there would be "legal ramifications" if the City went through with its plan.  Shortly thereafter, Smith was suspended for an alleged fire department policy infraction.  There was a hearing before the civil service commission.  At this meeting, Smith said there was "disparate treatment" and "selective enforcement" in the way he was treated by the City.  Smith attempted to elicit testimony about the meeting at which the plan was made to fire him.  This attempt was denied by the civil service commissioner.  The commission upheld Smith's suspension. Smith appealed to the "Court of Common Pleas", which reversed the suspension because the "regulation was not effective".  Smith filed a lawsuit in federal district court claiming (1) sex discrimination; (2) retaliation; and (3) Section 1983 claims.  District court granted "motion for judgment on the pleadings" to defendants.  Smith appealed.     

Holding:  Reversed and remanded.  District court held that claim of discrimination based on transsexuality is not a Title VII sex stereotyping claim under Price Waterhouse, and that Title VII does not prohibit discrimination based on transsexuality.  Price Waterhouse  interpreted "sex" under Title VII to include discrimination based on sex stereotypes.  The plaintiff in Price Waterhouse was denied partnership in an accounting firm for not acting in a way the other partners regarded as feminine.  Smith has established a similar claim. The adverse employment actions were all taken because of Smith's behavior and appearance didn't match the stereotype of how a man should act.  District Court relied on pre-Price Waterhouse cases that held Title VII "sex" did not include transsexuals.  Ulane v. Eastern Airlines held that the word "sex" in Title VII meant anatomical sex, not "gender"--the "socially constructed norms associated with sex".  Holloway v. Arthur Andersen & Co. held that discrimination against transsexuals is discrimination based on "gender" rather than "sex".  These cases were "eviscerated" by Price Waterhouse.  Price Waterhouse includes both "sex discrimination" (discrimination based on anatomical sex), and "gender discrimination" (failure to act in a way stereotypically associated with one's anatomical sex).  An employer who discriminates against a woman for failing to wear make-up is engaged in sex discrimination.  Likewise, an employer who discriminates against a man for wearing make-up is engaged in sex discrimination, "because the discrimination would not occur, but for the victim's sex".  Other courts have avoided this analysis by holding that sexual orientation or transsexuality are somehow separate categories of gender nonconformity that don't fall under Price Waterhouse, but Price Waterhouse did not make sex stereotyping claims conditional upon not being transsexual.  Sex stereotyping is sex stereotyping, regardless of whether the victim is transsexual or not.

This case is available on Google, here.                 

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