Bryan D. LeMoine

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Missouri Court of Appeals Finds Sexual Stereotyping Can Provide Evidence Supporting a Claim of Sex Discrimination

On October 24, 2017, the Missouri Court of Appeals (Western District) issued an opinion holding that sexual stereotyping can support an inference that discrimination on the basis of gender occurred in the workplace.  While the Court maintained that sexual orientation is not protected under the Missouri Human Rights Act (MHRA), the Court stressed that sex-based stereotyping is a prohibited employment practice in Missouri and therefore can support an inference of unlawful sex discrimination.

In Lampley and Frost v. MCHR, Case No. WD80288 (Mo.App. W.D. 2017), Harold Lampley and Rene Frost filed charges of discrimination against the State of Missouri based on, for Mr. Lampley, gender discrimination and retaliation and, for Ms. Frost, associational discrimination for her friendship with Mr. Lampley.  In the charge, Mr. Lampley alleged that his employer discriminated against him because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.  Ms. Frost claimed her close friendship with Mr. Lampley resulted in her suffering discrimination in the workplace.  Mr. Lampley acknowledged that he was gay, but never claimed discrimination on the basis of sexual orientation.  Rather, he supported his gender discrimination claim with allegations that he was discriminated against on the basis of his gender because he did not conform to gender stereotypes.  The Missouri Commission on Human Rights (MCHR) dismissed the charge for lack of jurisdiction, refusing to even address the claim for gender discrimination or retaliation.  Both Lampley and Frost petitioned the trial court for administrative review, and the trial court granted summary judgment in favor of the MCHR.

The Court of Appeals reversed.  The key, according to the appellate court, was that sexual stereotyping is prohibited under state and federal law, and therefore allegations of sexual stereotyping are sufficient to satisfy the fourth prong of a claim under the MHRA.  The fourth prong requires a claimant to state evidence that the employee was treated differently from similarly situated members of the opposite sex.  The court stated that sex-based stereotyping can give rise to an inference of unlawful discrimination.

The MCHR argued that a sex stereotyping analysis transforms sexual orientation into a protected class, but the appellate court disagreed.  The court stated that the sex-stereotyping analysis allows for a person like Mr. Lampley to argue that he was mistreated on the basis of his gender because the employer considered him insufficiently masculine.  The court held that a sex stereotyping analysis does not create a new protected class, but rather “recognizes the manifold ways sex discrimination manifests itself.”  The court had no patience for the MCHR’s argument that gay and lesbian employees will assert sex stereotyping claims in lieu of a sexual orientation claim.  That, the court stated, was an issue for the trier of fact, not the court of appeals.  The court concluded Mr. Lampley’s acknowledgement that he was gay neither precluded nor insured his protection under the MCHR.  Rather, as a male, he was in a protected class, and entitled to a right to sue.

Lampley’s and Frost’s attorney in the case, when asked for a comment, expressed concern that the two year statute of limitations for filing suit under the MCHR had passed for both Lampley and Frost.  Whether a court will block Lampley and Frost from proceeding with their case will remain to be seen.

As pointed out above, readers will recall that in 2015, the Missouri Court of Appeals for the Western District held that sexual orientation was not covered by the MHRA given the absence of its inclusion in the language of the statute. See, Pittman v. Cook Paper Recycling Corp., Case No. WD77973 (Mo.App. W.D. 2015). The Equal Employment Opportunity Commission and some federal courts have concluded sexual orientation is protected by Title VII of the Civil Rights Act. In short, the above discussion demonstrates the continuing evolution of this complex area of employment law. Employers should continue to tread carefully when making any decisions that could be deemed later to be based on an employee’s sexual preference.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over 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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