Missouri Supreme Court Expands Definition Of Sex Discrimination To Include Sex Stereotyping

Author:Mr Corey L. Franklin and Jamie Mahler Westbrook
Profession:Ford & Harrison LLP

Executive Summary: On February 26, 2019, the Missouri Supreme Court extended legal protections against discrimination based on gender identity and sexual orientation in two separate cases—one dealing with employment rights and the other dealing with accessibility rights to public facilities by transgender students.

The first case (Harold Lampley and Rene Frost v. Missouri Commission on Human Rights, No. SC96828) dealt with employment discrimination based on sexual orientation. There, Harold Lampley alleged he was mistreated in the workplace because of his sexual orientation. Rene Frost, Lampley's co-worker, also alleged she was mistreated because of her friendship with Lampley, whom she noted had non-stereotypical attributes of how a male should appear and behave. The plaintiffs brought claims against the Missouri Department of Social Services' Child Support Enforcement Division for unlawful harassment and retaliation under the Missouri Human Rights Act (MHRA). The Missouri Commission on Human Rights (MCHR) investigated their complaints, but terminated the proceedings after finding the complaints did not involve discrimination covered by the MHRA (i.e., a complaint based on Lampley's sexual orientation). Lampley and Frost filed petitions for administrative review or, alternatively, a writ of mandamus, asking the circuit court to direct the MCHR to issue right-to-sue letters. The circuit court granted summary judgment to the MCHR after finding that Lampley and Frost failed to state a claim.

The MHRA does not prohibit discrimination based on sexual orientation. However, the MHRA explicitly prohibits discrimination based on sex. The plaintiffs relied on the U.S. Supreme Court precedent that discriminating against someone because they do not align with stereotypes commonly associated with a specific sex (i.e., that women should date men) is the same thing as discriminating based on sex.

The Missouri Supreme Court found it was illegal for employers to discriminate against people who do not conform to gender stereotypes (i.e., how a person should look, dress, and act). In the opinion, Judge George W. Draper III stated: "[A]n employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee's sex should act can support an inference of unlawful sex discrimination. Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is...

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