Last week, the Missouri Supreme Court overturned the dismissals of two separate sex discrimination lawsuits under the Missouri Human Rights Act (MHRA). These decisions have received widespread media coverage, including regarding perceived implications for gay and transgender individuals in Missouri. The decisions are significant, and should be of interest to Missouri employers, both in terms of what they do say and what they do not say about MHRA sex discrimination claims.
The first case, Lampley v. Missouri Commission on Human Rights, addressed claims of discrimination brought by a gay male employee. Lampley, however, based his discrimination claim not on his sexual orientation, but rather, on his sex, male. That is, he claims that he was discriminated against because he does not exhibit the stereotypical attributes of how a male should appear and behave. The Missouri Commission on Human Rights’ investigation into Lampley’s charge interpreted his claim of discrimination to be based on sexual orientation, which the Commission concluded is not protected under the MHRA.
Ultimately, a deeply divided Missouri Supreme Court held that Lampley had, in fact, stated a valid claim of sex discrimination. In its opinion, the majority described the issue on appeal as whether charges of discrimination based upon sexual stereotyping evidence are cognizable under the MHRA. Missouri courts had not previously addressed this issue. The Court adopted the rationale of PriceWaterhouse v. Hopkins, the 1989 U.S. Supreme Court opinion holding that evidence of sexual stereotyping could support a claim of sex discrimination under federal law. Like its federal counterpart, the Missouri Supreme Court reasoned that a sex stereotyping-based claim of sex discrimination is equally available to homosexual and heterosexual employees alike. With his case revived, Lampley now has the ability to present evidence that sex stereotyping motivated his employer’s allegedly discriminatory conduct.
Significantly, the Court did not address whether sexual orientation is itself a protected characteristic under the MHRA, whether under the guise of “sex” discrimination or otherwise. In a case from 2015 – Pittman v. Cook Paper Recycling Corp. – a Missouri appellate court held that the MHRA does not prohibit discrimination based upon sexual orientation. Pittman remains the last word in Missouri on the unavailability of claims of discrimination based on sexual orientation.
The second case, R.M.A. v. Blue Springs R-IV School District, addressed a claim of sex discrimination brought by a transgender male student (“R.M.A.”) against his school. R.M.A. claims that the school discriminated against him by denying him a public accommodation – access to the boys’ restrooms and locker rooms – on account of his sex. The trial court granted the school’s motion to dismiss, in which it argued that the MHRA did not cover claims based on gender identity.
In another divided opinion, the Missouri Supreme Court held that R.M.A.’s pleadings alleged sufficient facts to state a cognizable claim of discrimination based on his sex, without addressing the availability of a cause of action based upon the student’s transgender status or gender identity. The Court considered its analysis “simple and straightforward” at such an early stage of the proceedings. Taking R.M.A.’s allegations as true (as any court must on a motion to dismiss), the Court held that R.M.A. had sufficiently pleaded his membership in a protected class – male – and that his sex – male – was a motivating factor in the denial of his use of a public accommodation. Because R.M.A. alleged that he was a member of a protected class (male), was denied a public accommodation because he was a member of that protected class, and suffered damages, the Court reversed the lower court’s early dismissal of his claims. The Court did not address or decide whether transgender status or gender identity is a protected characteristic under state discrimination laws.
In the end, and in some ways, Lampley and Blue Springs raise more questions than they answer. What is clear is that the Missouri Supreme Court has not ruled that the MHRA’s prohibition on discrimination because of “sex” includes a prohibition based upon sexual orientation, transgender status or gender identity. The Court seemingly could have confronted these questions head on, but did not do so, leaving those issues for another day. For now, and consistent with the plain language of the statutory scheme, sexual orientation, transgender status, and gender identity remain unprotected under the MHRA.
Given the continually evolving legal landscape, employers may want to review their policies on sexual discrimination, harassment, and retaliation in light of these new developments in Missouri case law. Our Labor and Employment Practice Group has significant experience assisting employers facing these issues.