March 28, 2019, Trial News
Missouri Supreme Court extends state Human Rights Act protections to LGBTQ worker and student
Sex stereotyping of a gay employee and denying a transgender student access to the bathroom corresponding to his gender identity can form the basis of a sex discrimination claim, the Missouri Supreme Court held. In two opinions issued on the same day, the court found that the plaintiffs had each alleged valid employment and public accommodation claims under the Missouri Human Rights Act.
Sex stereotyping of a gay employee and denying a transgender student access to the bathroom corresponding to his gender identity can form the basis of a sex discrimination claim, the Missouri Supreme Court held. In two opinions issued on the same day, the court found that the plaintiffs had each alleged valid employment and public accommodation claims under the Missouri Human Rights Act (MHRA). (Lampley v. Mo. Comm’n on Human Rights, 2019 WL 925557 (Mo. Feb. 26, 2019), and R.M.A. v. Blue Springs R-IV Sch. Dist., 2019 WL 925511 (Mo. Feb. 26, 2019).)
In Lampley, Harold Lampley, who identifies as gay, alleges he was subjected to harassment at work—the Missouri Department of Social Services—because he exhibited non-stereotypical behaviors for his gender. He also alleges that when he complained of the harassment to his employer, he received a poor performance review in retaliation for his complaint. Lampley’s colleague Rene Frost alleges that the department discriminated against her due to her association with Lampley by relocating her desk, prohibiting her from eating lunch with Lampley, and verbally threatening her. Both Lampley and Frost claim they had vacation time docked for meeting with their union representative to discuss their discrimination claims, unlike other employees.
Lampley and Frost separately filed EEOC charges against the department in 2014, alleging sex discrimination, retaliation, and retaliation based on association. However, when the Missouri Commission of Human Rights investigated Lampley’s and Frost’s claims, it presumed the claims were for discrimination based on sexual orientation. The commission found that sexual orientation is not a protected class under the MHRA and terminated both proceedings in 2015.
Lampley and Frost sought review of the commission’s decisions. The state circuit court consolidated their petitions and granted the commission summary judgment, finding that the plaintiffs had failed to state a claim. The court relied on Pittman v. Cook Paper Recycling Corp., in which a state appellate court found that the MHRA does not prohibit discrimination based on sexual orientation. (478 S.W.3d 479 (Mo. Ct. App. 2015).) The Lampley plaintiffs, however, contended that their claims were based on sex discrimination resulting from sex stereotyping.
The Missouri Supreme Court reviewed the plaintiffs’ claims as being based on sex discrimination and found that sex stereotyping was not directly addressed in Pittman. The court then looked to Price Waterhouse v. Hopkins, where the U.S. Supreme Court found that an employer’s reliance on sex stereotypes in employment decisions may support an inference of sex discrimination. (490 U.S. 228 (1989).) The court also looked to a recent Second Circuit finding that “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.” (Christiansen v. Omnicron Group, Inc., 852 F.3d 195 (2d Cir. 2017).) Finally, the court noted that while state regulations do not address sex stereotyping during employment, current state regulations prohibit employers from refusing “to hire an individual based on stereotyped characterizations of the sexes.” (Mo. Code Regs. Ann. Tit. 8 §60-3.040 (2018).). The court reversed, finding that “sex discrimination is discrimination” and that “sexual orientation in incidental and irrelevant to sex stereotyping.”
In R.M.A., the Missouri Supreme Court also considered the limits of the MHRA. A transgender student, R.M.A., whose current legal sex is male, claimed his school denied him access to the boys’ restrooms and locker rooms. He sued the school district and school board in 2015, alleging discrimination in the use of a public accommodation on the grounds of his sex in violation of the MHRA. The defendants countered that the MHRA does not cover claims based on gender identity and that they are not “persons” as defined by the act. The trial court dismissed R.M.A.’s claim without explanation in 2016, and R.M.A. appealed.
On appeal, the Missouri Supreme Court, noting there is no approved jury instruction for a sex discrimination public accommodation claim, applied the Missouri Approved Instruction for employment discrimination claims with minor modifications to evaluate R.M.A.’s claim. The court found that R.M.A.’s claim satisfied all the elements of the jury instruction, and therefore the trial court had erred in dismissing for failure to state a claim—it reinstated the plaintiff’s claim. The court found that R.M.A. is a member of a protected class, was denied “full and equal use and enjoyment of the males’ restroom and locker room facilities,” “sex was a contributing factor in such denial,” and consequentially R.M.A. sustained damage.
The court also looked to the MHRA’s definition of “person,” which includes “one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons.” While school boards and school districts are not expressly listed, the court found that the MHRA’s protections “plainly extend to accommodations owned by the state or its subdivisions.”
The dissent in R.M.A. posits that sex is determined at birth and cannot be changed, and that the majority “incorrectly extends the MHRA beyond biological sex to include claims of discrimination based on transgender status.” However, in a footnote, the majority notes that the Missouri General Assembly “has acknowledged that one’s sex may not remain throughout a person’s life what it was identified to be when that person was born,” and has explicitly provided procedures for transgender persons to amend the sex indicated on their birth certificates. (Mo. Rev. Stat. §193.215.9 (2018).) The court concluded that the MHRA does not mention “biological” sex, and simply prohibits discrimination based on “‘sex’ wholly unqualified.”
LGBTQ workplace rights attorney Jillian Weiss, of Tuxedo Park, N.Y., describes the decisions as “a hopeful sign that state courts are beginning to understand the importance of sex discrimination against gay and transgender people.”
However, Weiss noted, “the cases were decided on narrow grounds, particularly R.M.A., which includes no discussion of sex discrimination as applied to transgender persons.” The Missouri Supreme Court in R.M.A. did not use gender identity as a basis for its ruling, and according to Weiss, “practitioners tend to shy away from asserting ‘gender identity’ discrimination claims under sex discrimination statutes, because the two may be considered different.”
Weiss added that “while the issue is not over in Missouri or other states, the decisions move things in the right direction.”