The Missouri Supreme Court held on Feb. 26, 2019, that under the Missouri Human Rights Act (MHRA), sex-based stereotypical attitudes can form the basis of a sex discrimination claim when the complaining party is homosexual. While finding sexual orientation is not protected under the MHRA, and standing alone, the characteristic of being lesbian, gay, or bisexual cannot sustain a sex stereotyping claim, the court’s holding does offer greater protections for LGBTQ employees in Missouri.
In 2014, Harold Lampley and Rene Frost filed charges of discrimination with the Missouri Commission on Human Rights (MCHR) against their employer, the Missouri Department of Social Services Child Support Enforcement Division. Lampley, a gay man, alleged that his employer discriminated against him based on sex because he does not exhibit the stereotypical attributes of male appearance and behavior. Because he exhibited non-stereotypical behaviors, Lampley said, he was subjected to harassment at work and grossly underscored in a performance evaluation in retaliation for complaining about the harassment.
Frost alleged discrimination and retaliation for her association and close friendship with Lampley. Specifically, she alleged she suffered verbal abuse, threats about her performance review, and other harassing behaviors, in addition to being moved from Lampley’s work area and told they could no longer eat lunch together. Frost believed her employer’s conduct stemmed from her friendship with Lampley, and noted his non-stereotypical attributes. The MCHR dismissed both charges after determining Lampley and Frost made claims of discrimination based on sexual orientation and finding that sexual orientation is not protected by the MHRA.
The Missouri Supreme Court found both Lampley and Frost had adequately stated a claim for sex discrimination based on sex stereotyping, and not based on sexual orientation. In both charges, Lampley and Frost stated Lampley was gay, but the court found this fact was incidental to the basis for the discrimination. The court likened the facts to those in the U.S. Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where a female senior manager was denied partnership after partners referred to her as “macho” and needing “a course at charm school.” She was advised that to become a partner she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The U.S. Supreme Court recognized when an employer relies upon sex stereotypes in its employment decisions, that evidence may support an inference of sex discrimination.
The Missouri Supreme Court held the MCHR unreasonably and erroneously assumed that because Lampley was gay, there was no possible sex discrimination claim other than one for sexual orientation. As a result, it found an employee who suffers an adverse employment decision based on sex-based stereotypical attitudes can support an inference of unlawful sex discrimination.