Missouri Supreme Court Recognizes Sex Discrimination Claim Based On Sex Stereotyping And Failure To Accommodate Transgender Student Who Wanted To Use Boys Bathroom In School


This last year was a breakout year, with respect to  the  Missouri  sex discrimination laws.  First, the Missouri Supreme Court,  held under the Missouri Human Rights Act (MHRA),  a plaintiff could state a  sex discrimination  claim based on sex stereotyping Second, a plaintiff could state a claim  against a school district  for failure to  provide an accommodation for a  transgender student who wanted to use the men’s bathroom.  Both of these cases, which are groundbreaking, were decided on whether or not a plaintiff could state a cause of action (simply allege sufficient facts to fall within  the four-part test). These cases  were remanded for further action. Stay tuned,  the final outcome remains to be seen. 

On another front,  making things even more interesting, the United States Supreme Court recently referred, the  sequel to the Masterpiece  Cake Shop case, back to the Court of Appeals,  for further consideration, in light of   the Supreme Courts opinion in the Masterpiece  Cake Shop case. The Masterpiece Cake Shop case,  involved a bakery that refused on religious grounds to bake a  wedding cake for a same-sex couple. Masterpiece  Cake, held that the board deciding the case was prejudiced and plainly unfit to decide the case. Statements by the Supreme Court,  that the opinion in the Masterpiece  Cake Shop case was narrow and  confined to the issue of a board that prejudged the matter based upon their prejudice indicated that the case was limited but there are obviously  remaining questions as to whether or not the opinion of the Court is broader than the explanation offered by the Court. The point is that these issues are much  alive  creating tension between religious preferences and discrimination laws.

The following is a short summary of these cases,  with links to other material so you can explore in more detail. These cases will have a big impact on Missouri law  and public policy, when there is finally closure on these issues.

A Biological Female Whose Legal Sex Is Male Can State A  Claim Of Sex Discrimination Against A School District For Failure To Provide A Public Accommodation Under The Missouri Human Right Act 

  • The Missouri Supreme Court, in Appleberry v. Blue Springs R-IV School District,  held that a cause of action for public accommodation discrimination  was stated against the School District, under the Missouri Human Right Act (MHRA), because the School District barred the student from the boys’ restrooms and locker room since he “is transgender and is alleged to have female genitalia.”
  • The MHRA does not provide for types of sex discrimination claims or subcategories thereof; therefore, a claim is either a claim for sex discrimination or it is not.
  • School district and Board are “persons” under the MHRA.

For more extensive review of this case click here.

Missouri Supreme Court Held  That Sex Stereotyping Can Be Brought As A Sex Discrimination Case

  • In order to state a claim under the MHRA, the employee must demonstrate that: “Employee was a member of a protected class; qualified to perform the job; suffered an adverse employment action; and was treated differently from other similarly situated employees of the opposite sex.” The Lampley opinion relies heavily on  Price Waterhouse v. Hopkins, decided in 1989 by the United States Supreme Court, which  held sex sterotyping can be  sex discrimination. Lampley was remanded for further action. 
  • Lampley v. Missouri Commission on Human Rights,  held that sex stereotyping can be sex discrimination.
  • In Lampley, the Court  noted  that an  employee may demonstrate sex discrimination through evidence of sexual stereotyping, which is described  in Price Waterhouse v. Hopkins, as: She was “macho,” needing “a course of charm school” and “failing to walk, talk and dress more femininely while needing to wear makeup and jewelry.”
  • Two of the four judges, joined in a concurring opinion, stating that while the allegations  stated a cause of action, the principal opinion went too far by  opining on whether “sex stereotyping,” as discussed in the Title VII context in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)  is sex discrimination under the MHRA.  This could complicate  matters because Price Waterhouse is one of the central issue in Zarda v. Altitude Express, Inc, which is currently pending before the United States Supreme Court. Zarda v. Altitude Express, Inc, is discussed below.

For more extensive review of  Lampley click here.

Zarda v. Altitude Express, Inc., Held   That  Title VII Prohibits Discrimination Based On A Persons Sexual Orientation 

  • The Second Circuit, in Zarda v. Altitude Express, Inc., reasoned that logically,  sexual orientation is a function of sex and sex is a protected characteristic under Title VII; therefore,  it follows that sexual orientation is also protected. (“[D]iscriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex.”)
  • Zarda v. Altitude Express, Inc., relies heavily on Price Waterhouse, a 1989, U. S. Supreme Court decision, which held that adverse employment actions based on the belief that a female accountant should walk, talk, and dress femininely constituted impermissible sex discrimination.
  • Zardia, is now pending before the United States Supreme Court on the question of: Whether the prohibition in Title VII of the Civil Rights Act of 1964, against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.”
  • For more extensive review of this case click here.

Masterpiece Cake Shop Case and Bias

  • In the Masterpiece Cake Shop case, the United States Supreme Court held that the Colorado Civil Rights Commission (Commission) showed a “clear and impermissible hostility towards the sincere religious beliefs of Phillips the owner of the Masterpiece Cake Shop.” 
  • The majority Opinion rejected a broad exemption for religiously motivated merchants, noting that gay persons and gay couples should not be treated as social outcast or as inferior in “dignity or worth.”  The courts with respect to the exercise of freedom by gays should give great weight on terms equal to others.
  • For more extensive review of this case click here.
  • The United States Supreme Court, recently declined to take up the sequel to the Masterpiece Cake Shopcase, by remanding the sequel, Klein v. Or. Bureau of Labor & Indus., back to the Oregon Court of Appeals, to reconsider, in light of the Masterpiece Cake Shop case. In Klein, the Oregon Court held that refusal to bake a wedding cake for a homosexual couple was discriminatory and fined the bakery/owners $135,000. Lots of speculation about the referral. See: bloomberglaw.com/us-law-week/lgbt-cake-controversy-wont-go-to-high-court

Howard Wright© 2019



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