Last month, in two separate opinions, the Missouri Supreme Court took another step towards expanding the protections of the Missouri Human Rights Act (“MHRA”) to LGBTQ individuals. First, in Lampley v. Missouri Commission on Human Rights, No. SC96828, ___ S.W.3d ___ (Mo. Feb. 26, 2019), the Court held that sex stereotyping can form the basis of a sex discrimination claim, regardless of the complaining individual’s sexual orientation. Second, in R.M.A ex. rel. Appleberry v. Blue Springs R-IV Sch. Dist., No. SC96683, ___ S.W.3d ___ (Mo. Feb 26, 2019), the Court held a transgendered student could make a claim for sex discrimination against his school district for denying him access to the boys’ restrooms and locker rooms.
As readers may recall in our previous blog post discussing this case, Complainants Lampley and Frost filed charges of discrimination against the State of Missouri based on gender discrimination and retaliation (Lampley), and for Frost, associational discrimination for her friendship with Lampley. In Lampley’s charge of discrimination, he alleged his employer discriminated against him based on sex because his behavior and appearance did not conform to the stereotype of “maleness” held by his employer. While Lampley admitted that he is gay, he did not bring his claims under sexual orientation. Instead, he alleged his employer’s stereotype of how a male should act or male gender norms motivated his employer to harass him and treat him differently from similarly-situated men who he alleged did not deviate from the stereotype. Frost claimed in her charge that her close relationship with Lampley resulted in her also suffering discrimination in the workplace. Subsequently, the Missouri Commission on Human Rights (“MCHR”) dismissed the charges for lack of jurisdiction because their claims were based on sexual orientation. Subsequently, Lampley and Frost petitioned a trial court for administrative review and the trial court granted the MCHR summary judgment dismissing the petition.
On appeal, Lampley and Frost argued their claims of discrimination were based on sex, not sexual orientation because the sex discrimination arose from the employer’s sex stereotyping of employees in light of Lampley’s failure to “exhibit the stereotypical attributes of how a male should appear.” The Missouri Court of Appeals agreed with Lampley and Frost holding that sexual stereotyping is prohibited under state and federal law, and therefore allegations of sex stereotyping are sufficient to demonstrate that an employee was treated differently from similarly-situated employees. Thus, the Court of Appeals held that sex-based stereotyping could give rise to an inference of unlawful discrimination.
The Missouri Supreme Court subsequently upheld the Court of Appeals’ decision holding that “an employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act can support an inference of sex discrimination.” The Court further held that sexual orientation, while incidental, is ultimately irrelevant to sex stereotyping. The Court also noted that while sex stereotyping has not been recognized under the MHRA, courts in other jurisdictions have held that stereotyping based on gender norms can be used to create an inference of discrimination. Consequently, the Court ruled the entry of the summary judgment for the MCHR was inappropriate and compelled the MCHR to issue right-to-sue letters to both Lampley and Frost, allowing them to pursue their claims in court.
R.M.A. ex. rel. Appleberry
In this case, R.M.A. was a high school student transitioning from female to male who participated in boys’ athletic activities, but R.M.A. was not able to use the boys’ locker room or restrooms. R.M.A. sued the school district for discrimination under the public accommodation provision of the MHRA, which prohibits discrimination in public accommodations on the basis of sex. The trial court dismissed R.M.A.’s suit, holding he had failed to state a claim on two grounds, including that the MHRA does not cover claims based on gender identity.
The Missouri Supreme Court reversed the trial court’s dismissal of his claims, holding that R.M.A. met the essential elements of a claim for sex discrimination in that he alleged he was a member of protected class, he was discriminated against in the use of public facilities, his membership in the protected class was a contributing factor in the discrimination, and he sustained damages. The Court held that while R.M.A. alleged that he was a biological female who transitioned to male, his allegation that his sex was a contributing factor in denying his use of a public facility was sufficient in the Court’s opinion to allege causation between his status and the prohibition of his use of the public accommodation.
These decisions make it clear that while the MHRA does not protect against discrimination on the basis of an individual’s sexual orientation, the MHRA does protect LGBTQ individuals in employment and public accommodations under the theory of sex or gender discrimination. The recognition of discrimination because of sex stereotyping and because an individual is transgendered as forms of sex discrimination demonstrate the evolution of this area of law. Employers and businesses should strongly consider evaluating their policies, procedures, and training for employees and management to prevent sex discrimination of all forms, including the forms recognized in these recent decisions.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country for over sixty years and are available to discuss issues related to employment discrimination and the expansion of the MHRA to protect LGBTQ individuals. 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 facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.