On Oct. 28, 2015, the Missouri Court of Appeals for the Western District held that discrimination based on sexual orientation is not prohibited under the Missouri Human Rights Act (MHRA).

James Pittman worked as a controller at Cook Paper Recycling Corp. and alleged he was harassed and eventually terminated because of his sexual orientation. Among other things, Pittman alleged that the president of Cook Paper called him derogatory names because of his sexual orientation. The trial circuit court dismissed Pittman’s claims last February, and he appealed.

Pittman v. Cook Paper Recycling Corp., issued Oct. 27, 2015, is the first Missouri appellate case to address sexual orientation as a protected status. To make its ruling, the Missouri Court of Appeals analyzed the precise terms of the MHRA, and it determined that the plain language of the statute prohibits discrimination based upon sex, and not sexual orientation. Against that analytical backdrop, the court upheld the dismissal of the case because of the fact that Pittman did not allege he was discriminated against or harassed because of his sex, but rather because of his sexual orientation. As such, he could not bring a claim under the MHRA.

There is an interesting issue that remains undecided, however. Pittman argued that the MHRA should be interpreted in the same fashion as its federal counterpart — Title VII. Under Title VII, “gender stereotyping” — discriminating against someone because he or she fails to conform to the employer’s expectation of how someone of that gender should behave — can constitute unlawful discrimination. The court refused to go down that path, however, and did not address the merits of whether gender stereotyping is protected under Missouri law. Instead, the court rejected Pittman’s argument because he never alleged gender stereotyping in his petition. Again, he only alleged discrimination based on his sex. As a result, the court simply said that the gender stereotyping issue was not before it, and it dismissed Pittman’s claims.

Future Missouri plaintiffs seeking to bring a claim for discrimination based on sexual orientation will likely attempt to do so not based on gender (as Pittman did), but instead based on gender stereotyping, as that remains an open question after this case.