While not recognizing discrimination based upon sexual orientation or gender identity as being protected under the Missouri Human Rights Act (MHRA), the Missouri Supreme Court has issued two separate opinions that expand protection of LGBTQ individuals under the MHRA. In Lampley v. Missouri Comm'n on Human Rights,1 the Missouri Supreme Court held that sex stereotyping can form the basis of a sex discrimination claim, regardless of whether the complaining party is gay, and such a claim should not necessarily be construed as a claim for discrimination based upon sexual orientation. In R.M.A. ex. rel. Appleberry v. Blue Springs R-IV Sch. Dist.,2 the same court held that a transgender student who alleged his "legal sex is male" can state a claim for sex discrimination against his school district for denying him access to the boys' restrooms and locker rooms. Taken together, these cases show that while gender identity and sexual orientation are not explicitly protected under the MHRA, LGBTQ individuals may assert viable employment and public accommodation discrimination claims under the MHRA.
Lampley v. Missouri Comm'n on Human Rights
Complainant Lampley brought a charge of discrimination with the Missouri Commission on Human Rights (MCHR) alleging that his employer discriminated against him based on sex because his behavior and appearance did not conform to the "maleness" stereotype held by his employer. Lampley acknowledged in the pleadings that he is gay. Lampley contended that the stereotypes motivated his employer to harass him and treat him differently from similarly situated men who allegedly did not deviate from these stereotypes.
Frost, Lampley's female co-worker, also filed a charge claiming retaliation based on her association with Lampley. The MCHR terminated the processing of both Lampley's and Frost's administrative charges, stating it lacked jurisdiction over the charges because the claims were based upon sexual orientation. The MCHR therefore did not issue right-to-sue letters. Lampley and Frost sought administrative review against the MCHR in the circuit court, which later granted summary judgment in favor of the MCHR.
Lampley and Frost contended on appeal that the claims were based on sex, not sexual orientation. Discrimination based on sex is prohibited by the MHRA, but discrimination based on sexual orientation is not.3 Lampley and Frost contended that the sex discrimination was based upon sex stereotyping by the employer, namely that "Lampley does not exhibit the stereotypical attributes on how a male should appear."
In reversing the motion for summary judgment, the Missouri Supreme Court held 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. Sexual orientation is incidental and irrelevant to sex stereotyping." The court noted while sex stereotyping has not been previously recognized under the MHRA as a basis for sex discrimination, courts in other jurisdictions have held that stereotyping based on sex can be used to create an inference of discrimination. The court noted that the United States Supreme Court initially recognized sex stereotyping as a form of sex discrimination in Price Waterhouse v. Hopkins.4 Further, the Missouri Supreme Court noted that the MCHR's regulations state that sex-based stereotyping is a prohibited employment practice.5
The court stated that the entry of summary judgment was inappropriate because Lampley and Frost should be able to present evidence of the sex stereotyping they alleged in their charges of discrimination. The court remanded the case to compel the MCHR to issue right-to-sue letters to Lampley and Frost since the time for investigation had lapsed under the MHRA.
While sexual orientation and gender identity cannot form the basis of a direct claim under the MHRA, sex stereotyping can form the basis of a sex discrimination claim, and the individual's sexual orientation is irrelevant to such a claim. Employers should prohibit stereotyping on the basis of any protected categories, and should include prohibitions against stereotyping in their handbooks and discrimination and harassment policies.
R.M.A. ex. rel. Appleberry v. Blue Springs R-IV Sch. Dist.
R.M.A. was a high school student transitioning from female to male. R.M.A. was able to participate in boys' athletic activities, but R.M.A. was not able to use the boys' locker room or boys' restroom. R.M.A. sued the school district for discrimination under Section 213.065 RSMo, the public accommodation provision of the MHRA. Section 213.065.2 prohibits discrimination in public accommodations "on the grounds of sex."
The school district successfully convinced the trial court to dismiss R.M.A's lawsuit claiming sex discrimination. In reversing the trial court, the Missouri Supreme Court stated that R.M.A met the essential elements of a claim for sex discrimination in that R.M.A. alleged he was a member of a protected class, he was discriminated in the use of public facilities, his membership was a contributing factor in the discrimination, and he sustained damages.
R.M.A. alleged his legal sex was male. The court stated this allegation was sufficient to establish he was a member of a protected class under the MHRA, although the dissenting opinion took issue with that allegation since R.M.A also alleged that he was a biological female who transitioned to male. R.M.A. also alleged that he was prohibited from using the boys' locker room and restroom. The court held this allegation was sufficient to show that he was denied the use of a public accommodation. Finally, R.M.A.'s allegation that his sex was a contributing (motivating) 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 using the public accommodations.6
The court indicated that simply put, R.M.A made sufficient allegations that he was discriminated against because of his sex.
The school district also contended it was not a "person" under the MHRA because the statute does not specifically mention a "school district" as a person. However, the court stated that an entity need not specifically be mentioned in the statute to be encompassed by the MHRA. The court stated that the "MRHA's protections against discrimination in public access to public accommodations plainly extend to accommodations owned by the state and its subdivisions."
While the court in R.M.A. did not recognized gender identity as a protected class under the MHRA, transgender persons may state a claim for sex discrimination under the MHRA if the individual's sex is alleged to be the cause of the discrimination. Businesses and employers should carefully consider the application of their policies and procedures when interacting with all individuals, including those who may be transgender.
1 No. SC96828, S.W.3d (Mo. Feb. 26, 2019).
2 No. SC96683, S.W.3d (Mo. Feb. 26, 2019).
3 Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. Ct. App. 2015)(holding that that sexual orientation was not a protected form of discrimination under the MHRA.)
4 490 U.S.228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989).
5> 8 CSR 60-3.040(2).
6 The amendments to the MHRA that were effective on August 28, 2017 do not affect the holdings of Lampley and R.M.A. in so far as who may asset claims for sex discrimination, although claimants must now show the discrimination was the "motivating factor."
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