id at 80 81 118 sct 998 see king v super serv inc

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Unformatted text preview: we do not suggest that Vickers' claim fails merely because he has been classified by his co-workers and supervisor, rightly or wrongly, as a homosexual. Rather, his claim fails because Vickers has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work. Thus, he does not allege a claim of sex stereotyping. The Smith opinion does nothing to lessen the requirement that a plaintiff hoping to succeed on a claim of sex stereotyping show that he "fails to act and/or identify with his or her gender." Id.See also Barnes v. City of Cincinnati, 401 F.3d 729, 738 (6th Cir.2005) (affirming district court's denial of defendant's motion for judgment as a matter of law on discrimination claim where pre-operative male-to-female transsexual was demoted based on his "ambiguous sexuality and his practice of dressing as a woman" and his co-workers' assertions that he was "not sufficiently masculine"). Ultimately, recognition of Vickers' claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices. Indeed, this may be Vickers' intent; he argues in his brief that the unique nature of homosexuality entitles it to protection under Title VII sex discrimination law. Further, at oral argument, Vickers argued that the act of identification with a particular group, in itself, is sufficiently gender non-conforming such that an employee who so identifies would, by this very identification, engage in conduct that would enable him to assert a successful sex stereotyping claim. In making this argument, Vickers relies on a paragraph in Smith, 369 F.3d 912, 921-22 (6th Cir.2004). Unfortunately for Vickers, the paragraph he relied 155 on in making this argument was voluntarily removed by the panel and the opinion was subsequently reissued without this language. 378 F.3d at...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.

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