• Federal Court Affirms Jury Verdict for Transsexual Plaintiff
  • May 20, 2005
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • In Barnes v. City of Cincinnati, the Sixth Circuit upheld a jury verdict of $875,000 in favor of a transsexual police officer who claimed he was subjected to discrimination in violation of Title VII. Although gender identity and sexual orientation are not among Title VII's protected categories, the Sixth Circuit held that the plaintiff was subjected to illegal sex discrimination because of his failure to conform to sex stereotypes.

    The plaintiff in this case was a pre-operative male to female transsexual police officer who sued after he failed probation as a sergeant and was demoted. The plaintiff was the only police sergeant to fail probation between 1993 and 2000 and, during his probation, was placed in a training program that subjected him to intensive scrutiny. No other probationary sergeant either before or after the plaintiff was placed in such a program. Evidence was presented at trial that: it was well-known that the plaintiff often dressed as a woman when he was off duty; he sometimes came to work with make-up on; at least one supervisor told him he was not sufficiently masculine; and a number of supervisors and peers criticized him for lacking a "command presence."

    In rejecting the defendant's argument that the plaintiff failed to establish a prima facie claim of sex discrimination, the Sixth Circuit relied on its prior decision in Smith v. City of Salem, in which the court held "sex 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." The court held that the ultimate issue is whether the city discriminated against the plaintiff because of his failure to conform to sex stereotypes and determined that there was sufficient evidence to support the jury's finding of discrimination.

    This case and the court's decision in Smith are significant because, even though Title VII does not specifically prohibit discrimination on the basis of gender identity, under this analysis a claim based on sex stereotyping may be permitted to proceed to trial. Thus, employers, at least in the Sixth Circuit, should include a discussion of sex stereotyping in management training programs on sexual harassment and discrimination.

    Additionally, employers, at least in the Sixth Circuit, should evaluate their criteria for hiring and promotion to ensure decisions are not based solely on subjective criteria. While basing an employment decision on subjective criteria is not illegal, it can be difficult to defend such decisions in a discrimination lawsuit. Here, the employer argued that the plaintiff failed the probationary program because of his poor performance ratings. However, the plaintiff's poor performance ratings were due, in part, to his lack of "command presence," which was defined differently by different supervisors. Thus, it is a good idea to have some objective, quantifiable performance criteria by which employees are evaluated, even if subjective criteria are also included.