Case Analysis: Smith v. City of Salem

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

The plaintiff, Jimmie Smith, sued his employer, the city of Salem, Ohio, where he worked as a firefighter. By the time of the events that gave rise to the litigation, Smith had worked for the Salem Fire Department for about seven years without a negative incident. Smith was diagnosed with Gender Identity Disorder (GID) and thereafter began presenting himself with a “more feminine” appearance. Coworkers began to comment and ask questions about Smith’s appearance and mannerisms. Smith told his supervisor about his GID and that it was likely he would have sex reassignment surgery as part of his GID treatment. Smith was subsequently suspended from his job.

Smith sued, alleging, among other things, that he was discriminated and retaliated against in violation of Title VII. His Title VII claim was founded on the prohibition against sex-stereotyping as articulated in the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The district court dismissed Smith’s complaint and Smith appealed.

The appellate court reversed the district court’s dismissal of Smith’s complaint. The court found the reasoning of Hopkins to be controlling. In that case, Hopkins was a senior manager at Price Waterhouse who was denied a partnership because was too masculine. Hopkins had been advised that she could improve her odds of advancement if she walked, talked, and dressed in a more feminine manner, including wearing make-up and jewelry and having her hair styled. In ruling against Price Waterhouse, the Supreme Court held that discriminating on the basis of gendered expectations constituted impermissible sex discrimination.

The same was true for Smith, according to the appellate court. Smith was expected to adhere to a gendered expectation of masculinity and when he ceased doing so, adverse action was taken against him by his employer.

The court also discussed at some length the pre-Hopkins cases holding that transgenderism, of itself, does not give rise to a Title VII claim because it does not constitute a protected class. This discussion is not a part of the court’s holding, however, because transgenderism was not at issue. Smith sued as a man presenting a feminine appearance, not on the basis that although he appeared to be male, he was actually a woman.

The case can be read via Google Scholar here.