On October 27, 2015, the Missouri Court of Appeals for the Western District issued an opinion holding that sexual orientation was not a protected category under the Missouri Human Rights Act (“MHRA”) and, as a result, the plaintiff’s sexual orientation discrimination claim was not cognizable under Missouri law. See Pittman v. Cook Paper Recycling Corp., 2015 WL 6468372 (Mo. App. W.D. Oct. 27, 2015). However, Judge Gabbert wrote a lengthy dissenting opinion and the majority opinion identified but declined to reach the question of whether a claim for sexual orientation discrimination would be actionable under the MHRA if the claim is framed as a claim for unlawful sex-based stereotyping.

Background

James Pittman is an openly gay man who was employed by Cook Paper Recycling Corporation (“Cook Paper”) as a controller. Cook Paper terminated Mr. Pittman’s employment on or about December 7, 2011. After his employment was terminated, Mr. Pittman filed suit in Missouri state court claiming that Cook Paper unlawfully discriminated against him because he was gay. Specifically, his petition stated that Cook Paper “caused the workplace to be an objectively hostile and abusive environment based on sexual preference.” (emphasis added). He did not allege that he was discriminated against on the basis of sex and he did not explicitly claim that he was subject to unlawful sex stereotyping. He merely quoted some of the derogatory comments that he attributed to his former supervisor.

Cook Paper filed a motion to dismiss for failure to state a claim arguing that sexual preference is not a protected category under the MHRA. The Circuit court agreed and dismissed the petition. Following Mr. Pittman’s appeal of the dismissal, the Missouri Court of Appeals for the Western District affirmed.

Legal Analysis

In a 2-1 panel opinion, the majority concluded that the dismissal of Mr. Pittman’s petition was required by the plain and unambiguous language of the MHRA. The MHRA contains language prohibiting discrimination on the basis of sex.  The Court stated, “The Missouri Human Rights Act, however, is not a general bad acts statute but lists categories of discrimination that are unlawful: . . . Unlike many other states, Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act. If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act, it could have done so.”  With that statement, the Court specifically rejected the effort to read “sexual orientation” into the MHRA.

But the majority was careful to point out that it was not reaching the question of whether sexual orientation could be considered a special subcategory of sex discrimination and therefore be unlawful under the MHRA. “We need not decide, however, whether or not the Missouri Human Rights Act prohibits discrimination based upon gender stereotyping because Pittman did not raise a gender stereotyping claim in his petition. . . . Mr. Pittman’s claim was a simple and direct claim that he was discriminated against because of his sexual orientation.” The majority also made it clear that Missouri courts are not bound by federal administrative guidance which suggests that sexual orientation discrimination qualifies as sex discrimination under Title VII. With further explanation provided in a lengthy foot note, the Court stated that “the Missouri Human Rights Act and Title VII are coextensive, but not identical acts.”

Key Takeaways

  • Businesses should encourage a work environment that is free from arbitrary discrimination regardless of its source and take immediate action to stop discriminatory behavior.
  • Pursuant to the Pittman decision, a plaintiff-employee that sues their employer under the MHRA for unlawful discrimination on the basis of sexual-orientation should not have an actionable claim and the employer will have available a good argument for a Motion to Dismiss.  Note that the Pittman decision may be subject to further appellate review.
  • Under the MHRA, it remains an open question whether sexual orientation discrimination can be successfully pled as a sex discrimination claim under a gender stereotyping theory.