In the last two years, the Court of Appeals for the Western District of Missouri (Western District) has decided three significant cases, all interrelated, dealing with gender discrimination, gender identity and sex stereotyping. The latest, decided by the Western District in October of 2017, (Lampley v. Missouri Commission On Human Rights), is a case of first impression, holding that sex stereotyping was gender discrimination; thereby, violating Missouri employment discrimination laws. Before discussing the sex stereotyping case in Lampley, it is useful to look at two earlier cases by the Western District because they provide important background.
In Pittman v. Cook Paper Recycling Corp., (a 2015 case) the President of Cook Paper repeatedly called Pittman a homosexual male who worked as a controller for Cook Paper obscene names and stated that he did not approve of the male companion that Pittman was seeing. When Pittman terminated his relationship with his male companion Pittman filed suit alleging that Cook Paper had created a hostile work environment, which led to Pittman being treated differently than persons who separated while in a traditional male/female relationship. The Western District held that Pittman did not state a cause of action because employment discrimination under the Missouri Human Rights Act (MHRA) applied only to male female gender discrimination. In other words, the meaning of the word “sex” in the MHRA meant gender (male or female); therefore, the statute was intended to only apply in situations where females were discriminated against by being treated differently than males or vice versa.
In the Pittman case, there was a vigorous dissent by Judge Gabbert, who argued that the definition of “sex” was much broader then gender discrimination and included “the phenomena of sexual instincts and their manifestations,” thereby making the MHRA applicable to other forms of sex discrimination than just gender. For a more detailed discussion of this case see my Post (“All About Sex”) arguing that the Western District majority opinion was in error. Unfortunately, the Missouri Supreme Court did not review the Pittman case leaving us with the holding by the Western District that sex discrimination in employment was limited to discrimination based upon gender. Gays, homosexuals, and transgender persons claiming sex discrimination need not apply.
The second case, (R. M. A. v. Blue Springs) a public accommodations case based on sex discrimination, was decided in August of 2017. This case involved a junior high school student (R.M.A.) who alleged that he was a female to male transgender teenager who transitioned to “living as a male” by changing his name to a male name and by changing his birth certificate to show that he was a male, based upon a certification by a doctor that a medical procedure has occurred making this change. As a result the state changed the gender on the birth certificate of R.Sex M.A. from female to male as permitted by Missouri law.
Based on these changes to his sexual identity, R.M.A. contended that he should be able to access the same locker rooms and restrooms as other boys who participated in physical education, which request was denied by the school district. R.M.A. sued and the Western District noted that the history of the MHRA showed numerous attempts by the legislature to change the law to include sexual preference in the MHRA leading the court to conclude that the legislature never intended to include discrimination based upon gender identity in its original legislation, discrimination based on gender identity. In addition, the court relied on its earlier Pittman opinion, which held that the legislature did not intend to include within the definition of “sex” the concept of sexual orientation because it intended the word “sex” to relate to male/female “gender related traits.” Again, Judge Gabbert dissented arguing that this case represented a clear example of discrimination based on sex. After all, as Judge Gabbert noted that “but for” R.M.A.’s sexual anatomy the discrimination would not have occurred.
This brings us to the third and most recent case, Lampley v. Missouri Commission On Human Rights, decided in October of 2017. Lampley an employee alleged his employer discriminated against him based on sex stereotyping, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers. Lampley argued these stereotypes motivated his employer to harass him and treat him differently from similarly situated male employees who conformed to male gender stereotypes.
Lampley filed a sex discrimination case with the Missouri Commission on Human Right (MCHR). The MCHR, after investigation, terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation. Lampley appealed to the Missouri Court of Appeals, Western District, which held in a case of first impression that “gender stereotyping” is a form of sex discrimination based on gender and is actionable under the MHRA. Interestingly, Judge Gabbert, who had dissented in the two earlier cases, wrote the opinion in Lampley v. Missouri Commission On Human Rights, relying upon the narrow definition of “sex” (sex refers to only male-female gender).
In Lampley v. Missouri Commission On Human Rights, Judge Gabbert relied upon the 1989 opinion by United States Supreme Court in Price Waterhouse, which held by a plurality that:
“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
The Western District also relied on earlier Missouri cases where the Missouri courts recognized that stereotyping based upon the type of work a pregnant woman could perform or a person’s age was a limitation for eligibility to work was discrimination based on stereotypingFor a more in depth analysis see MMAA November 2017 Newsletter.
So where are we with respect to resolution of these important issues? Will the Missouri Supreme Court review the Western District’s opinion in Lampley v. Missouri Commission On Human Rights or will it turn down Lampley like it did in Pittman, leaving us to dangle in the wind?
Outside federal forces may affect whether or not Missouri courts no walk or slow walk the review of Lampley v. Missouri Commission On Human Rights. See excellent article on July 11, 2017 by Lyle Denniston, in the Constitution Daily on “Major sex quality dispute on the way to Supreme Court.” Venturing a guess it would seem to me that Missouri might delay any decision until there are further developments at the federal level.
Howard Wright @ 2017