United States: Missouri Appeals Court Holds Sexual Orientation Discrimination Is Not Prohibited By Missouri Human Rights Act

In a case of first impression at the appellate level, the Missouri Court of Appeals for the Western District of Missouri has held that the Missouri Human Rights Act ("MHRA") does not prohibit discrimination based on sexual orientation.¹

In this case, the plaintiff alleged his employer discriminated against him and created a hostile work environment based on his sexual orientation. The plaintiff claimed the company president called him derogatory names, asked if he had AIDS, and made other discriminatory comments about homosexuality. The employer eventually terminated the plaintiff's employment.

The plaintiff filed suit in the Circuit Court of Jackson County, which granted the employer's motion to dismiss. On October 27, 2015, the Court of Appeals affirmed, holding that the MHRA—the state's anti-discrimination statute—does not prohibit employment discrimination based on sexual orientation. Specifically, the court held that discrimination based on sexual orientation does not constitute discrimination based on sex. The court emphasized that its decision was guided by the plain text of the MRHA, and stated that additional protections have not been written into the law by the Missouri legislature. The court further wrote:

The plaintiff argued also that his claim was one of sexual stereotyping, long-recognized as prohibited under Title VII since the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court in the instant case did not decide whether the MHRA recognizes claims for sexual stereotyping, but instead found that the plaintiff failed to plead sufficient facts to state a stereotyping claim in his petition. The court then reiterated that the MHRA is not coextensive with Title VII, which may be an indication that it would not recognize a stereotyping claim under the MHRA even if it were stated in his petition.

In its opinion, the appellate court declined to rely on a recent EEOC administrative decision² in which the agency found that "sexual orientation is inherently a 'sex-based consideration,' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." The court rejected the EEOC's decision because it is "merely an agency's interpretation" of a federal law, which is not binding on a Missouri court interpreting Missouri law.

This decision was far from unanimous. One member of the three-judge panel dissented, writing that he would have held that (1) the plaintiff had stated a claim for sexual harassment under existing Missouri law and (2) claims for sexual orientation and gender stereotyping are encompassed by sex discrimination under the MHRA. The dissenting judge adopted the EEOC's rationale, stating "a person's sex is always considered when taking a person's sexual orientation into account." (Emphasis in original). Another member of the panel issued a concurrence, stating "I respectfully and reluctantly concur in the opinion of Judge Welsh with respect to the result only."

Implications for Employers

While this case is binding on Missouri circuit courts in the Western District, the plaintiff has already filed for rehearing or transfer to the Missouri Supreme Court. Thus, the state of the law under the MHRA is far from settled.

As a general matter, employers are exposed to significant risk when making employment decisions based on an employee's sexual orientation. While the court in this case indicated this practice may not be prohibited by the MHRA, the Missouri Supreme Court has recognized that the MHRA prohibits same-sex harassment.³ Moreover, the U.S. Supreme Court has also recognized that Title VII prohibits same-sex harassment and sex stereotyping discrimination.⁴ Several states and localities have also enacted laws expressly prohibiting discrimination on the basis of sexual orientation and gender identity. Therefore, it is recommended that employers—particularly those with multi-state operations—consider reviewing and revising their policies to include protections against sexual orientation discrimination regardless of Missouri's current stance.

Footnotes

1 Pittman v. Cook Paper Recycling Corp., No. WD77973 (Oct. 27, 2015 Mo. Ct. App.).

2 Complainant v. Anthony Foxx, Secy., Dep't of Transp. (Fed'l Aviation Admin.) Agency, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015).See alsoDenise M. Visconti and Kyle W. Nageotte,EEOC Rules Discrimination Based on Employee's Sexual Orientation Is Sex Discrimination Under Title VII, Littler Insight (July 20, 2015).

3 See Gilliland v. MAC, 273 S.W.3d 516 (Mo. 2009).

4 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998);Price Waterhouse, 490 U.S. 228.

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