On October 24, 2017, in Lampley v. Mo. Commission on Human Rights, the Missouri Court of Appeals, Western District, held that sex stereotyping, including as it pertains to a gay or lesbian employee, is sex discrimination under the Missouri Human Rights Act (“MHRA”). That sex stereotyping claims would be recognized under the MHRA is not particularly surprising, given the U.S. Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); see also R.M.A. v. Blue Springs R-IV School Dist., No. WD80005 (Mo. App. W.D. July 18, 2017). [For more information on this recent trend in federal law, see our April 7, 2017 Blog Post.]
The Missouri Commission on Human Rights (“MCHR”) determined that it had no jurisdiction over Lampley’s complaints, because he is gay and sexual orientation is not a protected class under Missouri law. See Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. App. W.D. 2015). The MCHR interpreted Lampley’s allegation that “his behavior and appearance contradicted the stereotypes of maleness held by his employer,” as related to sexual orientation. Lampley petitioned the court for administrative review, arguing that his charge be recognized as a sex discrimination claim instead. He pointed out that in his Charge of Discrimination he had checked the boxes for “sex discrimination” and “retaliation,” not the box labeled “other.”
The Missouri Court of Appeals, in reversing the circuit court’s order granting summary judgment to the MCHR, held that Missouri’s existing case law “readily accommodates a sex stereotyping claim,” and that Lampley’s allegations fit within that cause of action. Lampley’s allegation was that his unfair treatment was based on his sex not his sexual orientation, meaning that, as a man, he had been treated differently than women who exhibited a similar “behavior and appearance.” In reaching this conclusion and allowing Lampley’s claim to go forward, the Court made clear that, under a sex stereotyping theory, the plaintiff’s sexual orientation is immaterial.
The take away for employers is that sexual orientation discrimination claims, even though not currently a protected class under the MHRA, may be pursued if plaintiffs can frame their Charge of Discrimination and lawsuit as sex stereotyping.
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. The choice of a lawyer is an important decision and should not be based solely on advertisements.
This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.