In Pittman v. Cook Paper Recycling Corp., WD 77973 (Mo. App. W.D. Oct. 27, 2015) a divided panel of the Missouri Court of Appeals for the Western District affirmed the dismissal of an employee’s claim of discrimination based on sexual orientation under the Missouri Human Rights Act (MHRA). The majority opinion held Missouri law does not prohibit discrimination based on sexual orientation. However, the court left open the possibility that future claims may be brought by plaintiffs who specifically allege discrimination based on gender stereotyping. Relying on recent interpretations of federal law by the Equal Employment Opportunity Commission, the dissent opined that Missouri law does prohibit sexual orientation discrimination because the MHRA makes it unlawful to discriminate based on “sex.”
In Pittman, the plaintiff was a homosexual male who had worked for the defendant from April 2004 until his discharge in December of 2011. According to the plaintiff’s complaint, the president of the company had made derogatory comments about the plaintiff’s sexual preference. The company also allegedly disapproved of the plaintiff’s male partner, and when the plaintiff ended his relationship, he was “treated more harshly than a male who was getting a divorce from his female wife.” Ultimately, the plaintiff claimed that he was subjected to a hostile work environment and discharged “based on his sexual preference.”
The plaintiff filed a lawsuit alleging his employer’s actions violated the MHRA. The employer moved to dismiss the claim, arguing Missouri law does not prohibit employment discrimination on the basis of “sexual preference.” The circuit court agreed, dismissing the employee’s claim and rejecting the employee’s argument that the court should recognize a claim based on “sexual stereotyping.” The employee appealed.
The Court’s Analysis
Recognizing that it was addressing a question of first impression, each of the three judges on the Court of Appeals panel issued separate opinions. Judge Welsh and Judge Clayton both agreed that the employee’s claim was properly dismissed. In dissent, Judge Gabbert found that the employee had stated a claim for discrimination under the MHRA.
In his majority opinion, Judge Welsh held the MHRA does not prohibit discrimination based on sexual orientation. Although the MHRA makes it unlawful to discriminate on the basis of “sex,” he reasoned that this prohibition “concerns discrimination based upon a person’s gender and has nothing to do with sexual orientation.” In addition, unlike “many other states,” the Missouri legislature has not amended its human rights law to add sexual orientation as a protected status. Judge Welsh reasoned that it would be improper for the court to add a prohibition to the statute that the legislature has not included.
The plaintiff argued that his claim should not have been dismissed because, under federal antidiscrimination laws, discrimination is unlawful if it is based on gender stereotyping. Judge Welsh reasoned this argument did not need to be addressed because he found the plaintiff’s lawsuit did not allege gender stereotyping. “Pittman did not claim that he was harassed because he failed to comply with societal stereotypes of how he ought to appear or behave,” Judge Welsh wrote. “His claim was a simple and direct claim that he was discriminated against because of his sexual orientation.”
Judge Clayton filed a one-sentence concurring opinion, stating he “respectfully and reluctantly” agreed with Judge Welsh’s decision “with respect to the result only.”
In his dissent, Judge Gabbert explained that the MHRA is a broad remedial statute that prohibits discrimination on the basis of “sex,” therefore, it also prohibits discrimination on the basis of sexual orientation. Judge Gabbert relied upon the EEOC’s recent decision in Complainant v. Foxx, which held sexual orientation is “inherently” protected by federal antidiscrimination laws “because when an employer takes a person’s sexual orientation into account the employer necessarily considers a person’s sex.” Judge Gabbert would have held that the employee had properly stated a discrimination claim under the MHRA and that his claim should proceed to a jury.
By a slim 2–1 majority, the Court of Appeals agreed in Pittman that it was proper for the trial court to dismiss the plaintiff’s claim of sexual-orientation discrimination under the MHRA. However, the majority opinion left open the possibility that a properly pleaded claim of unlawful gender stereotyping could be actionable. Moreover, the dissent would have allowed the plaintiff’s claim to survive dismissal, even though the complaint did not specifically allege that the plaintiff was a victim of gender stereotyping.
It is yet to be seen whether the Pittman case will be appealed to the Supreme Court of Missouri. However, the various opinions issued by the Court of Appeals makes it likely that Missouri courts will issue additional guidance in the future, addressing the viability of sexual-orientation discrimination claims under the MHRA.