## Facts

- Jimmie L. Smith, a biologically male lieutenant in the Salem, Ohio Fire Department, was diagnosed with Gender Identity Disorder and began presenting with a more feminine appearance, including at work.
- Co-workers questioned Smith’s appearance and made comments that he was not “masculine enough.”
- Smith told his supervisor that he had the diagnosis and would eventually transition from male to female; the supervisor disclosed this information to the fire chief despite assurances of confidentiality.
- Smith alleged that city officials and the fire chief planned to force him out by requiring multiple psychological evaluations by city-selected doctors, intending to induce resignation or create grounds for termination.
- Smith retained counsel; counsel notified the mayor’s office about potential legal issues, and Smith received an EEOC right-to-sue letter shortly thereafter.
- The fire chief suspended Smith for one 24-hour shift for an alleged policy violation; Smith alleged the suspension was retaliation for asserting rights and obtaining counsel.
- Smith filed suit asserting (1) Title VII sex discrimination and retaliation, (2) parallel Equal Protection claims under 42 U.S.C. § 1983, and (3) state-law invasion of privacy and civil conspiracy.

## Issues

1. Whether allegations that an employee was targeted for failing to conform to sex stereotypes state a claim of discrimination “because of . . . sex” under Title VII.
2. Whether a one-shift suspension, allegedly imposed after the employee asserted Title VII rights, can constitute an adverse employment action sufficient to plead Title VII retaliation.
3. Whether the same sex-stereotyping theory can support an Equal Protection claim under 42 U.S.C. § 1983 against municipal officials.

## Decision

- The Sixth Circuit reversed the judgment on the pleadings and remanded.
- The court held that Smith plausibly alleged Title VII sex discrimination based on sex stereotyping under Price Waterhouse v. Hopkins.
- The court held that Smith plausibly alleged Title VII retaliation because he engaged in protected activity, the City knew of it, he suffered an adverse action (the suspension), and the timing and alleged conduct supported an inference of causation.
- The court held that Smith’s § 1983 Equal Protection claims were improperly dismissed because the discrimination showing aligned with the viable Title VII sex-stereotyping theory.
- The court left the state-law claims to further proceedings consistent with the remand.

## Legal Principles

- Title VII’s prohibition on discrimination “because of . . . sex” includes discrimination for failure to conform to gender-based expectations about appearance and behavior.
- A sex-stereotyping theory is not limited to biological women; penalizing an employee for being insufficiently masculine or feminine can constitute sex discrimination.
- For pleading purposes, a short suspension can qualify as an adverse employment action in a retaliation claim when alleged to be imposed in response to protected activity.
- Equal Protection sex-discrimination claims under § 1983 may proceed in parallel with Title VII claims when based on the same alleged sex-based discriminatory conduct by government actors.

## Conclusion

The Sixth Circuit held that a firefighter’s allegations of adverse treatment for gender nonconformity stated a Title VII sex-discrimination claim under a sex-stereotyping theory, that a one-shift suspension could support a Title VII retaliation claim at the pleadings stage, and that corresponding § 1983 Equal Protection claims should not have been dismissed.


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