Court OKs gay plaintiff's 'sex stereotyping' claim

Sex stereotyping as theory of discrimination dates back to 1989 Supreme Court case

By Scott Lauck
BridgeTower Media Newswires

ST. LOUIS, MO - Missouri's anti-discrimination laws don't recognize sexual orientation as a protected class. But claims based on sex stereotypes are another matter, the Court of Appeals ruled Tuesday.

Harold Lampley, who is gay, had alleged that he faced discrimination while working for the state's Office of Administration because he did not conform to stereotypical views of how a male should appear and behave. Rene Frost, Lampley's friend and co-worker, also sued the agency, alleging that she faced discrimination for associating with him.

The Missouri Human Rights Commission threw out the complaints, saying it had no jurisdiction over claims based on sexual orientation. The Western District, however, said on Tuesday that Lampley's sexual orientation is "incidental and irrelevant" to his underlying claim, which hinges on discrimination he allegedly suffered due to sex stereotyping.

"If an employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight," Judge Anthony Rex Gabbert wrote. "The prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation." Judges Karen King Mitchell and Gary Witt concurred.

Although the case was the first in Missouri to squarely address sex stereotyping claims under the Missouri Human Rights Act, sex stereotyping as a theory of sex discrimination dates at least to a 1989 U.S. Supreme Court case, Price Waterhouse v. Hopkins, in which a plurality of the court held that a woman who alleged she was denied partnership in the firm because she seemed insufficiently feminine had a claim under Title VII.

Jill A. Silverstein, a St. Louis attorney who represented Lampley and Frost, said the opinion was based on a long line of cases saying that stereotypes are irrational and can support an inference of discrimination.

"Stereotyping is the ultimate form of discrimination," she said.

The Missouri Attorney General's Office, which defended the Office of Administration in the case, didn't immediately respond to a request for comment. In its brief, it had argued that state lawmakers have "repeatedly refused" to add sexual orientation to the Human Rights Act.

"The State of Missouri in no way condones mistreatment of any employee, and it provides for grievance procedures to remedy any abuse of any employee. But that is not what this appeal is about," the attorney general's office wrote. "This appeal is about respecting the Legislature's prerogative to make policy judgments in civil statutes, and it is about this Court's duty to hold that a statute means what it says. To expand the scope of this statute is not within the powers of this Court."

The Western District has been building to Tuesday's ruling for some time. In a 2015 case, Pittman v. Cook Paper Recycling Corp., the court held that sexual orientation discrimination is not prohibited in Missouri, barring a suit filed by a gay man who alleged he was fired from a private employer. And in July, in R.M.A. v. Blue Springs R-IV School District, the court refused to allow a suit from a transgender student alleging discrimination at school.

Both cases, however, noted that the plaintiffs had not brought sex stereotyping claims, leaving the door open for Tuesday's ruling. Gabbert, the author of Tuesday's opinion, dissented from both earlier cases.

Tony Rothert, legal director of the ACLU of Missouri, which filed an amicus brief in the case, said he thinks the ruling gives lawyers enough guidance to bring successfully claims in most cases involving sexual orientation.

"At the heart, most of the discrimination based on sexual orientation and gender identity is based on sexism and the offense at the notion that men don't act enough like men and women don't act enough like women," he said.

The appeals court ordered the Human Rights Commission to issue right-to-sue letters to Lampley and Frost. However, Silverstein said it's not yet clear if the lawsuit can proceed. The complaints initially were filed in 2014, and state law requires discrimination claims to be brought within two years of the alleged discriminatory conduct. Silverstein said her clients appealed the case knowing they might run up against the statute of limitations.

"They were very brave to go forward with this," she said.

Published: Mon, Oct 30, 2017

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