Mike Fox over at the Employer's Lawyer Blog has a link to another in an interesting line of cases that he has been following in the Sixth Circuit. This new line of cases has upheld jury verdicts for plaintiffs alleging gender discrimination based on sexual stereotyping. The most recent case is Barnes v. City of Cincinnati (6th Cir. 3/22/05).

The Barnes decision affirms a jury verdict where the plaintiff was awarded $320,511 (plus over $500,000 in attorneys fees.) Fox notes that in addition to removing any doubt that gender stereotyping is a viable cause of action under Title VII, at least in the 6th Circuit, the Court also approved the following mixed motive jury instruction:"Your verdict will be for plaintiff if you find that plaintiff demonstrated by a preponderance of the evidence that plaintiff's failure to conform to sex stereotypes was a motivating factor in defendant's decision to demote plaintiff, even if other factors . . . also motivated defendant's decision. However, if you find that defendant's treatment of plaintiff was motivated by both plaintiff's failure to conform to sex stereotypes and lawful reasons, you must decide whether plaintiff is entitled to damages. Plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that defendant would have demoted plaintiff even if plaintiff's failure to conform to sex stereotypes had played no role in the decision. Remember that plaintiff is not obligated to show that defendant's legitimate reasons played no role in the decision to demote plaintiff, nor does plaintiff need to show that the prohibited factor was the sole or principal reason or the true reason."Ouch! If I am representing a defendant, this is not the instruction I want the judge to give to the jury. However, with the exception of the "sex stereotypes" issue (that has yet to migrate out of the Sixth Circuit) this instruction certainly is a correct statement of the law. So far these cases have been limited to fringe fact patterns involving transsexual policemen, etc. However, it isn't hard to see how the same theory could be used with employers that maintain a, shall we say, overly macho work environment and have trouble dealing with male employees considered to be too effeminate or female employees that are too "butch".