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A Better Partnership


Dec 2003
December 01, 2003

Federal Appeals Court Holds That Title VII Protects Transsexuals and Cross-Gender Behavior

The United States Court of Appeals for the Sixth Circuit has ruled that an employer cannot discriminate against a man who acts and dresses like a woman. In Smith v. City of Salem, a male firefighter sued his employer for discriminating against him because he was a transsexual and because he expressed a feminine appearance and feminine mannerisms at work. Other courts had consistently held that Title VII of the Civil Rights Act does not protect transsexuals and that it does not prohibit an employer from discriminating against a man who engages in cross-gender behavior, such as wearing women's clothing. However, most of these cases predate the United States Supreme Court's decision in Price Waterhouse v. Hopkins, where the Supreme Court stated that a firm could not discriminate against a woman who acted too aggressively and did not wear makeup or jewelry, because this was improper "sex stereotyping." The Sixth Circuit, which is the federal appeals court for Michigan, relied on the Price Waterhouse decision in reaching its holding, reasoning as follows:

After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. 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 Smith court did not suggest any limits on its ruling, which leaves employers in a difficult quandry: must they really allow men to wear dresses and makeup to work? Even men who deal with customers? The Smith decision also raises questions about other policies that distinguish between men and women in terms of appearance. For example, is it now unlawful for an employer to tell men that they cannot have pierced ears, when women are allowed to do so, or to tell men that their hair must be above shoulder length, when women are allowed to have longer hair?

A close reading of the Price Waterhouse decision suggests that the Supreme Court may not have intended the result reached by the Sixth Circuit in the Smith case. Therefore, we would not be surprised to see this case appealed to the Supreme Court. For now, however, employers should be cautious and contact their attorneys if such issues arise.

For more information, please contact your WN&J attorney.

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