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Wednesday, November 4, 2015

Missouri Appellate Court Rules Sexual Orientation Discrimination Not Actionable Under Missouri Human Rights Act

On October 27, 2015, the Missouri Court of Appeals, Western District, in a case of first impression, held that employees could not state a cause of action for discrimination or harassment based on sexual orientation or preference under the Missouri Human Rights Act (“MHRA”).  Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479 (Mo. App. W.D. 2015).  In Pittman, a male homosexual employee filed a lawsuit under the MHRA claiming that he suffered discrimination and hostile work environment due to his sexual preference, alleging that the president of the employer made several highly insulting and derogatory remarks to the employee and treated him differently than heterosexual co-workers.  The trial court granted the employer’s motion to dismiss, which was appealed by the employee.

In a 2-1 decision, the appellate court’s majority opinion affirmed the dismissal and held unequivocally that the “Missouri Human Rights Act does not prohibit discrimination on the basis of sexual orientation.”  In so holding, the majority opinion strictly interpreted the MHRA’s language and found that it prohibits discrimination based only on “sex” – which by dictionary definition means only “one of the two divisions of human beings respectively designated as male or female.”  The majority also relied on the fact that the employee had alleged sexual preference discrimination, not sex discrimination.  The majority stated that it was bound by the language of the MHRA and could not rewrite it.  It found persuasive that Missouri, unlike other states, has not enacted legislation prohibiting sexual orientation discrimination, which tends to show that the Legislature did not contemplate barring such discrimination.

The lengthy dissenting opinion included interpretational and policy grounds to support inclusion of sexual orientation discrimination in conduct prohibited by the MHRA.  First, in using the same dictionary definitions, the dissent interpreted “sex” to include sexual orientation because sexual orientation is inherently a sex-based consideration.  The dissent further noted that the MHRA should be broadly construed in favor of applicability of the statute.

Currently, the Missouri Supreme Court is deciding whether or not to accept transfer of the case, which it could do based on the lengthy dissent and the important issues in the case.  It should be noted that Missouri appellate courts have previously held that same-sex discrimination and harassment is prohibited by the MHRA.  We will monitor this issue because the recognition if a MHRA claim for sexual orientation discrimination exists, then employers must account for it in policies, practices, and employee training.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.


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