Rex P. Fennessey

Rex P. Fennessey Associate

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Does the Missouri Human Rights Act Prohibit Sexual Orientation Discrimination

Late last month, a Missouri appeals court addressed for the first time whether the Missouri Human Rights Act (“MHRA”) prohibits discrimination based on sexual orientation.  In a decision which is sure to be challenged, the Missouri Court of Appeals for the Western District concluded that sexual orientation is not a protected classification under the MHRA.

The case was brought by James Pittman, a homosexual former employee of Cook Paper Recycling Corporation, who claimed that the company’s president made comments offensive to homosexuals, asked whether Pittman “had AIDS”, and treated Pittman poorly after he divorced his wife.  After his termination, Pittman filed a lawsuit under the MHRA, arguing that Cook Paper discriminated against him on the basis of his “sex” when it created a “hostile” and “abusive” workplace because of his “sexual preference.” The case allowed a Missouri appeals court to consider a question not previously decided: whether the MHRA’s prohibition on “sex” discrimination includes discrimination on the basis of sexual orientation.

The Court concluded that the MHRA’s prohibition on “sex” discrimination was essentially a prohibition against discrimination on the basis of gender, but that “a person’s gender has nothing to do with a person’s sexual orientation.”  It therefore found that Pittman was not protected by the MHRA, and agreed that his lawsuit must be dismissed. Pittman may – and likely will – appeal this decision to the Missouri Supreme Court.  Whatever the outcome, the Court’s opinion is one more in a growing discussion of not only whether sexual orientation discrimination is prohibited, but why.

Neither federal nor Missouri law currently expressly prohibits sexual orientation discrimination.  However, regular readers of our blog know that the United States Equal Opportunity Commission (“EEOC”) recently announced that it now interprets Title VII’s prohibition on “sex” discrimination to also prohibit sexual orientation discrimination.  The EEOC reasons that Title VII’s prohibition on sex discrimination includes discrimination based on gender stereotypes; and that an assumption and expectation of heterosexuality is one type of gender stereotype.  According to the EEOC, “sexual orientation is inherently a ‘sex-based consideration.’” One of the three judges hearing Pittman’s appeal agreed with the EEOC’s interpretation of the nature of “sex” discrimination; and would have allowed Pittman to pursue his case.

The EEOC’s view is not, as the Missouri appeals court’s decision illustrates, universally embraced.  Critics of the EEOC’s reasoning have argued that the term “sex” was clearly intended to prohibit discrimination by men against women (and vice-versa) because of the other’s gender; not their sexual orientation.  Indeed, until very recently, the EEOC itself did not consider sexual orientation discrimination a form of “sex” discrimination under Title VII.  Even some who welcome the EEOC’s position that sexual orientation discrimination is unlawful object to tying sexual orientation to traditional gender norms; especially given a growing recognition of non-traditional gender identities. While some courts may find the EEOC’s reasoning persuasive, others may agree with the reasoning of the Missouri Court of Appeals, so the issue of whether federal law prohibits sexual orientation discrimination also remains uncertain.

Given the unsettled state of the law, Missouri employers are advised to consult with an experienced employment attorney when dealing with situations which may involve claims of sexual orientation discrimination.  The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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