Jottings By An Employer's Lawyer

Tuesday, March 22, 2005

6th Circuit Continues to Blaze Law of Sexual Stereotypes

Last year in Smith v. City of Salem I noted here that the 6th Circuit might have opened a new fault line of social debate as it upheld a claim for gender discrimination based on sexual stereotyping. In that case it was a fireman, in today's decision, Barnes v. City of Cincinnati (6th Cir. 3/22/05) [pdf] a police sergeant. Barnes was living as a pre-operative male to female transsexual when he failed the probationary period required to become a sergeant in the Cincinnati police department.

While Salem was only at the pleading stage, the Barnes decision affirms a jury verdict where he was awarded $320,511 (plus over $500,000 in attorneys fees.) Among the problems that Barnes allegedly had was his "lack of command presence," which his expert said was a subjective phrase that could be used for stereotyping. Other evidence of sexual stereotyping included comments by one of his supervisors that he was not sufficiently masculine and his practice of dressing as a woman outside of work was both well known and talked about within the department. Holding the jury was free to believe or disbelieve the evidence, the court found no reason not to affirm its verdict.

In addition to removing any doubt that gender stereotyping is a viable cause of action under Title VII, at least in the 6th Circuit, the Court also approved the following mixed motive jury instruction:

Your verdict will be for plaintiff if you find that plaintiff demonstrated by a preponderance of the evidence that plaintiff's failure to conform to sex stereotypes was a motivating factor in defendant's decision to demote plaintiff, even if other factors . . . also motivated defendant's decision. However, if you find that defendant's treatment of plaintiff was motivated by both plaintiff's failure to conform to sex stereotypes and lawful reasons, you must decide whether plaintiff is entitled to damages. Plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that defendant would have demoted plaintiff even if plaintiff's failure to conform to sex stereotypes had played no role in the decision. Remember that plaintiff is not obligated to show that defendant's legitimate reasons played no role in the decision to demote plaintiff, nor does plaintiff need to show that the prohibited factor was the sole or principal reason or the true reason.

While that may be a legally acceptable jury instruction, it certainly is not one that many defendants (or their lawyers) will appreciate or be happy about.

As far as the nature of the cause of action, two cases is not a flood, but one suspects there may be more, perhaps much more, of this new type of litigation coming.

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