Smith V. City of Salem: "Sex-Stereotyping" Becomes a Potent Way to Prove Same-Sex Sex Discrimination under Title VII

Article excerpt

In Smith v. City of Salem,1 decided in August, 2004, the United States Court of Appeals for the Sixth Circuit allowed a transsexual to proceed with a claim of workplace sex discrimination under Title VII of the Civil Rights Act of 1964.2 This ruling undoubtedly raised some eyebrows, given that transsexuals are hardly a protected class under the Act. In reality, far from holding that discrimination against transsexuals is per se illegal, City of Salem merely involved a unique application of a sex-stereotyping theory articulated by the United States Supreme Court in 1989 in Price Waterhouse v. Hopkins.3 This theory holds that under Title VII, actionable sex discrimination occurs if one is targeted because of a failure to conform to sex norms-that is, because he or she was perceived by co-workers as insufficiently masculine or feminine.

Price Waterhouse involved opposite-sex discrimination. In 1998, the Court held in Oncale v. Sundower Offshore Services, Inc.,4 that Title VII can be invoked by victims of sexual harassment, a form of sex discrimination,5 if the actor is the same sex. Soon thereafter, federal courts faced claims that sex-stereotyping is a way to prove same-sex sexual harassment. Most were brought by gay men who were plainly trying to get around the fact that Title YII does not prohibit discrimination based on sexual orientation.

In 2002, the Labor Law Journal published an article in which I discussed how federal appeals courts had handled same-sex sexual harassment claims.6 At that time, six courts had addressed the stereotyping issue in the same-sex sexual harassment context, but only one had ruled in favor of the plaintiff based on the sex-stereotyping theory. Since then, besides City of Salem, the Ninth Circuit Court of Appeals has issued an en banc decision, Rene v. MGM Grand Hotel, Inc.,7 in which a majority of the judges endorsed the theory. Given these rulings, this theory, which was in the budding stage in 2002, is now in full bloom.

This article updates the 2002 article. It briefly reviews cases decided before Rene and City of Salem and then discusses those rulings, which refined the principles defined in the earlier cases. It asserts that it is now clear that the Price Waterhouse sex-stereotyping theory applies with equal force in same- and opposite-sex sex discrimination cases and that discrimination based on gender or sex is prohibited by Title VII. It also argues that City of Salem establishes that the fact that one is homosexual or transsexual is not fatal to a Title VII claim if one suffers discrimination based on a failure to conform to sex norms.


Sex-stereotyping under Price Water-house In Price Waterhouse, a female senior member of an accounting firm was up for a partnership, so the firm sought performance evaluations from the other, mostly male, partners. Although they praised her for her ability and record, they criticized her for her interpersonal skills and abrasiveness. Among other things, she was told that she acted too "macho" and could improve her prospects if she took a course at a charm school; walked, talked, and dressed more femininely; and wore make-up and jewelry.8 After the firm denied her partnership, she resigned and sued alleging sex discrimination under Title VH.

The Court found that the firm had engaged in sex discrimination. Although a four-justice plurality and two concurring justices differed on what a plaintiff must prove to win a sex discrimination case, they agreed that Title VII bars discrimination, not just because one is a woman, but also because one fails to act like a woman.9 The plurality stressed that "we are beyond the day when an employer [may] evaluate employees by assuming or insisting that they match the stereotype associated with their group" and that an employer who acts based on a belief that women must not be aggressive, acts based on sex.10 The dissenters did not dispute the notion that sex-stereotyping is sex discrimination, and no justice has done so since Price Waterhouse was decided. …