Missouri Expands Sex Discrimination to Include Sex Stereotyping, Protecting Many LGBTQ Workers
By: Anne Baggott
In a decision filed October 24, 2017, the Missouri Court of Appeals, Western District, recognized that discrimination based on sex stereotyping is a form of sex discrimination under the Missouri Human Rights Act. The decision will likely open the door to claims of sex discrimination from employees who do not conform to gender norms. The court was careful to explain its decision did not depend on the plaintiff’s sexual orientation.
Harold Lampley, a male employee of the State of Missouri’s Office of Administration Child Support Enforcement Division filed a charge of discrimination with the Missouri Commission on Human Rights for sex discrimination and retaliation. He alleged the employer discriminated against him because his behavior and appearance did not conform to the stereotypes of maleness that his employer and managers held, and that he experienced retaliation after he complained of the discrimination. Even though Lampley is gay, he did not allege discrimination based on sexual orientation – a claim the Missouri appellate courts have held is not viable under the MHRA. A co-worker also filed a separate charge alleging she experienced retaliation due to her association with Lampley. The Commission terminated its investigation of the charges because it found it lacked jurisdiction over claims based on sexual orientation, and it did not issue right-to-sue letters.
The trial court, on administrative review of the Commission’s decision, agreed with the Commission and granted summary judgment. Lampley appealed. On review, the appeals court reversed, holding the Commission had jurisdiction because Lampley did not attempt to state a claim for sexual-orientation discrimination. Instead, the employee claimed and presented evidence of sex discrimination through sex-based stereotyping. The court analyzed federal cases holding sex-based stereotyping is a form of sex discrimination, noted Missouri cases in which stereotyping supported an inference of discrimination for protected categories other than sex, and pointed out the Commission’s “own employment regulations identify sex-based stereotyping as a prohibited employment practice.” The court held, as a matter of first impression, that evidence an employee suffered an adverse employment decision based on stereotyped ideas of how a member of the employee’s sex should act can support an inference of unlawful sex discrimination.
The court rejected the Commission’s argument that gay and lesbian employees will assert sex stereotyping claims as a pretext for a sexual-orientation discrimination. “The fact that Lampley is gay neither precludes nor insures his MHRA protections,” the court stated, adding, “[g]ender-normative heterosexuals are not protected to any greater degree than those not conforming to type.” The court directed the Commission to issue right-to-sue letters to both Lampley and the co-worker to permit them to present evidence of their claims.
Although the Lampley decision did not overturn Missouri decisions holding discrimination because of sexual orientation is not prohibited under the MHRA, it greatly expands the rights of employees who do not conform to gender-normative behavior to sue their employers for sex discrimination.
Contact Anne Baggott at firstname.lastname@example.org or 816-931-2700.