What happened. Jimmie Smith worked as a lieutenant for the city of Salem's fire department for 6 years without negative incident­until he decided to become a woman. Then began what one of his colleagues later called a "witch hunt," which had the goal of ousting Smith from the department. The fire chief met with the city's attorney, and they called a session of the executive council­both with the purpose of figuring out how to fire Smith.

A colleague soon told him that the council would require him to undergo extensive psychological evaluations, hoping he would refuse so that he could be fired for insubordination. Smith hired an attorney and filed a complaint with the Equal Employment Opportunity Commission, which sent him a right-to-sue letter. Next, he was suspended for a day without pay for violating a policy that a county court later ruled did not exist. So he took the city to federal district court. Judges there ruled for the city, reasoning that sex stereotyping is not sex discrimination and that the suspension was not an adverse employment action because it was overturned. Smith appealed to the 6th Circuit, which covers Kentucky, Michigan, Ohio,
and Tennessee.

What the court said. Appellate judges looked to the U.S. Supreme Court's 1989 ruling in Price Waterhouse v. Hopkins, where a woman was passed over for promotion because she wasn't feminine enough (she didn't wear jewelry or makeup, for example) to satisfy her male colleagues. The high court termed that sex stereotyping, and said it violated federal civil rights law. Smith's case, judges said, was similar. And they saw his suspension as an adverse employment step. So his case will go to trial. Smith v. City of Salem, Ohio, U.S. Court of Appeals for the 6th Circuit, No. 03-3399 (8/5/04).

Point to remember: In some circuits, a disciplinary action that is later rescinded by the employer may not qualify as an adverse step, but Smith's suspension was overturned by a court, not the fire department, so it was definitely adverse.