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Missouri High Court’s Hopeful Signals on Bias Claims

For now, gay employee, trans student can pursue discrimination suits

The Missouri Supreme Court, in two rulings last week, held out the possibility that gay and transgender plaintiffs can sustain state discrimination claims based on federal sex discrimination prohibitions.
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In a pair of rulings on February 26, the Missouri Supreme Court reversed circuit court dismissals of sex discrimination lawsuits by gay and transgender plaintiffs.

In both cases, the court was sharply split, and in neither opinion did the court find that sexual orientation or gender identity discrimination claims, as such, may be brought under the state’s Human Rights Act.

Still, at least a majority of the seven judges agreed in both cases that being gay or transgender does not bar an individual from making a state sex discrimination claim. As a result, lawsuits by both a gay plaintiff and a transgender one survived government motions to dismiss.

The court’s action here is significant because Missouri is a conservative state that offers no protections based on sexual orientation or gender identity. And the federal circuit court of appeals in which it is located, the Eighth, has not yet ruled on a pending appeal posing the question whether the sex discrimination provisions of the federal Civil Rights Act of 1964 cover such claims.

The first of the two decisions, Lampley v. Missouri Commission on Human Rights, involves discrimination claims by two employees of the Missouri Department of Social Services. In a complaint filed with the Commission, Harold Lampley alleged that he suffered both “sex” discrimination and “retaliation.” Rene Frost, a straight co-worker of Lampley’s, also filed a charge, claiming she suffered “retaliation” because of her association with him.

Lampley stated he is a gay man who does not exhibit stereotypically male appearance and behavior and so was treated differently from “similarly situated co-workers” who were not gay and exhibited “stereotypi­cal male or female attributes” in line with their gender. He claimed that he was subjected to harassment and “grossly underscored” in a performance evaluation in retaliation for his complaints.

Frost described her close friendship with Lampley and complained about a performance review that was publicly announced to her co-workers — in a departure from practice. After that review, she claimed, her desk was moved away from Lampley and the other co-workers with whom she collaborated and she was told she could no longer have lunch with Lampley.

Frost also claimed that, unlike other employees, she and Lampley were docked for pay for the time they met with their union representative about their grievances and that she was subjected to verbal abuse, threats about her performance review, and “other harassing behaviors” because of her friendship with Lampley.

The Commission concluded that Lampley was really trying to assert a sexual orientation discrimination claim, and that Frost’s claim was really that she was discriminated against for associating with a gay person. In both cases, it found that the Human Rights Act did not offer the plaintiffs redress or the “right to sue.”

When Lampley and Frost turned to the state circuit court, their cases were similarly dismissed.

Even though the Supreme Court judges were divided over how to characterize these cases and whether they even had jurisdiction, a majority concluded that the suits could move forward.

Judge George W. Draper, III, writing for three members of the seven-member court, followed federal precedents stemming from the 1989 US Supreme Court’s decision in Price Waterhouse v. Hopkins, where a woman denied partnership because she was viewed as too masculine in her dress and demeanor prevailed in a sex discrimination claim. The high court found that relying on sex stereotypes in making personnel decisions was evidence of employment discrimination because of sex.

Draper concluded that the Commission erred in dropping its investigation since Lampley did not allege that he was a victim of sexual orientation discrimination. Despite making clear that he was gay, his claim was that he was a victim of sex discrimination because he did not exhibit stereotypical male behavior. Frost, Draper found, was similarly entitled to an investigation of her claim of retaliation against her based on her friendship with Lampley.

In reaching these conclusions, Draper emphasized that sexual orientation discrimination claims, as such, are not covered by state law.

Judge Paul C. Wilson concurred with Draper’s three-judge opinion, but on a narrower ground. These cases, he wrote, “should be analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims, [which] they plainly do.” The state’s Human Rights Act, he wrote, “does not provide for ‘types’ of sex discrimination claims” — such as “sex stereotypi­ng.” Either a claimant is alleging sex discrimination or not.

Wilson would leave to a later stage in the litigation whether the facts proven by the plaintiffs would amount to sex discrimination. The discussion of sex stereotypes, he found, is premature at this stage of the litigation.

Wilson’s concurrence provided Draper with the majority to hold that the circuit court should not have granted summary judgment to the Commission.

Dissenters identified a variety of procedural grounds to dismiss Lampley and Frost’s appeals, and Judge W. Brent Powell emphasized that Lampley’s extended narrative could clearly support a conclusion that he was the victim of sexual orientation discrimination. The Commission, he concluded, acted appropriately in closing such a case.

In the other case before the State Supreme Court, R.M.A., a teenage student, filed suit claiming that his school’s refusal to let him use boys’ restrooms and locker rooms was discrimination based on sex. Stating that his “legal sex is male,” R.M.A. alleged he was the victim of public accommodations discrimination “on the grounds of his sex.”

Here, the Commission, in 2015, supported the youth’s right to sue. In response, the government defendants argued that the Human Rights Act does not cover gender identity discrimination and that public schools, in any event, are not subject to its public accommodations provisions. In 2016, the circuit court dismissed R.M.A’s suit “without explanation,” and he appealed.

In R.M.A.’s case, Judge Wilson, writing for five members of the court, asserted that it was unnecessary to address the question whether the youth had a valid sex discrimination claim. In his complaint, R.M.A. stated that he was legally a male and that the school denying his access to the boys’ facilities discriminated against him because of his sex. To Wilson, this was straightforward. There is no need at this stage to address the question whether gender identity discrimination claims can be brought under the Human Rights Act, because R.M.A. was making no such claim.

Wilson also saw no merit in the argument that the school’s restroom and locker room facilities were not subject to public accommodations nondiscrimination provisions.

In a vehement dissent, joined by Chief Judge Zel Fischer, Judge Powell insisted that the term “sex” could not be construed to allow gender identity discrimination claims and he insisted that this is what R.M.A. was really trying to assert. The Human Rights Act, he wrote, “prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.” The youth’s claim could advance “only if it alleges that, as a biological female, R.M.A. was deprived of a public accommodation available to biological males. R.M.A. makes no such allegation. Instead, R.M.A. alleges he is a female who has transitioned to living as a male, and that the Defendants discriminate against him based on his sex by preventing him from using the boys’ restrooms and locker room.”

According to Powell, “the logical upshot is that the majority is presumably willing to hold the [Human Rights Act] prohibits schools from maintaining separate restrooms and locker rooms for male and female students.”

Powell concluded that the question whether the statute should cover R.M.A.’s claim was a policy question for the Legislature, not the court.

Given how the judges voted in these two cases, it is difficult to predict how sex discrimination claims by gay and transgender plaintiffs in Missouri will play out. Ultimately the questions posed by Powell will come right back when the cases are litigated on the merits. Judge Draper’s analysis was supported by only a minority of the court, so it is unclear whether his use of the sex stereotyping theory would prevail when the merits of a gay plaintiff’s sex discrimination claim are decided. And the limited nature of Judge Wilson’s ruling in R.M.A.’s case gives no hint about how a majority of the court would deal in general with a transgender student’s claims to restroom and locker room access.

Looming over all these questions is a pending Eighth Circuit appeal under the Title VII employment nondiscrimination provisions of the Civil Rights Act and the possibility that the US Supreme Court may hear cases next term concerning gay and transgender rights under federal sex discrimination laws.

Updated 12:42 pm, March 5, 2019
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