South-Western Legal Studies in Business

Transsexual Protected Against Sex Discrimination in Employment Decision
Description

Appeals court upheld a verdict in favor of a police officer whom the jury found to have not been promoted because he was a transsexual in the process of becoming a woman. Sex was the improper motivating factor in the employment decision.

Topic Employment Discrimination
Key Words

Sex Discrimination; Transsexual; Sex Stereotype

C A S E   S U M M A R Y
Facts

Phillip (now Philecia) Barnes started work as an officer for the Cincinnati Police Department (CPD) in 1981. In 1998 he scored 18/105 among applicants for consideration to promotion to sergeant and began a probationary period to determine if he should be promoted. At the time of the probation, Barnes was a male-to-female transsexual who lived as a male on duty but as a female off duty. He had a reputation in the CPD as a homosexual, bisexual or cross-dresser. His probationary period was long and filled with problems. No other sergeant candidates were evaluated the same way Barnes was. One sergeant who evaluated Barnes said that Barnes was put in a special program to “target him for failure.” When Barnes was denied promotion, he sued for sex discrimination. He was awarded $320,000 in damages plus $553,000 in attorney fees and costs. The CPD appealed.

Decision

Affirmed. Barnes was a member of a protected class since he failed to conform to sex stereotypes concerning how a man should look and behave. The evidence presented to the jury was sufficient to support a verdict that the CPD intentionally discriminated against him for reasons of sex. The police chief who made the decision not to promote had the authority to make the decision for the CPD, so the CPD could be held liable. The damages and attorney fees were reasonable.

Citation  

Barnes v. City of Cincinnati, 401 F.3d 729 (6 th Cir., 2005)

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