Missouri Supreme Court Expands Definition of Sex Discrimination to Include Sex Stereotyping
Executive Summary: On February 26, 2019, the Missouri Supreme Court extended legal protections against discrimination based on gender identity and sexual orientation in two separate cases—one dealing with employment rights and the other dealing with accessibility rights to public facilities by transgender students.
The first case (Harold Lampley and Rene Frost v. Missouri Commission on Human Rights, No. SC96828) dealt with employment discrimination based on sexual orientation. There, Harold Lampley alleged he was mistreated in the workplace because of his sexual orientation. Rene Frost, Lampley’s co-worker, also alleged she was mistreated because of her friendship with Lampley, whom she noted had non-stereotypical attributes of how a male should appear and behave. The plaintiffs brought claims against the Missouri Department of Social Services’ Child Support Enforcement Division for unlawful harassment and retaliation under the Missouri Human Rights Act (MHRA). The Missouri Commission on Human Rights (MCHR) investigated their complaints, but terminated the proceedings after finding the complaints did not involve discrimination covered by the MHRA (i.e., a complaint based on Lampley’s sexual orientation). Lampley and Frost filed petitions for administrative review or, alternatively, a writ of mandamus, asking the circuit court to direct the MCHR to issue right-to-sue letters. The circuit court granted summary judgment to the MCHR after finding that Lampley and Frost failed to state a claim.
The MHRA does not prohibit discrimination based on sexual orientation. However, the MHRA explicitly prohibits discrimination based on sex. The plaintiffs relied on the U.S. Supreme Court precedent that discriminating against someone because they do not align with stereotypes commonly associated with a specific sex (i.e., that women should date men) is the same thing as discriminating based on sex.
The Missouri Supreme Court found it was illegal for employers to discriminate against people who do not conform to gender stereotypes (i.e., how a person should look, dress, and act). In the opinion, Judge George W. Draper III stated: “[A]n 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 unlawful sex discrimination. Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping.” It noted that because a Missouri regulation characterizes sexual stereotyping as an unlawful hiring practice, it follows that sexual stereotyping during employment is an unlawful employment practice.
The Missouri Supreme Court ultimately reversed and remanded the case to the circuit court to instruct the MCHR to issue right-to-sue-letters to Lampley and Frost. It noted that the MCHR should have allowed Lampley and Frost to demonstrate whether the alleged sexual stereotyping motivated the employer’s alleged discriminatory conduct.
The second case (R.M.A. v. Blue Springs R-IV School Dist., et al., No. SC96683) involved a transgender student who sued the Blue Springs School District after administrators would not allow him access to the boy’s locker room and restroom. The Missouri Supreme Court determined the circuit court improperly dismissed the case and sent it back to the lower court for further proceedings. As the Missouri Supreme Court reaffirmed in Lampley, the MHRA does not explicitly prohibit discrimination on the basis of gender identity or sexual orientation. Accordingly, the Court determined that because the student alleged discrimination on the basis of sex, the case should move forward in the lower court.
Employers’ Bottom Line: Although these decisions do not hold that the MHRA prohibits discrimination on the basis of sexual orientation, they significantly expand the rights of employees who do not conform to gender-normative behavior to pursue sex discrimination claims under the MHRA. In addition, the R.M.A. ruling is of particular note as it signals that the MHRA, as it relates to public accommodations, extends to transgender individuals. Well-crafted policies and management training are crucial in minimizing inappropriate workplace conduct and identifying it early to ensure matters are thoroughly investigated and addressed.
If you have any questions regarding this decision or other labor or employment issues, please feel free to contact the author of this Alert, Corey Franklin, cfranklin@fordharrison.com, partner in our St. Louis office. You may also contact the FordHarrison attorney with whom you usually work.
