Mollie G. MohanIn October of 2017, the Western District Court of Appeals became the first Missouri appellate court to extend the United States Supreme Court’s sex-stereotyping theory to allow a gay employee’s Missouri Human Rights Act (“MHRA”) claim to proceed. In this case, the plaintiff, a gay man, alleged he was discriminated against on the basis of his sex, “because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.” Lampley v. MCHR, No. WD80288, 2017 WL 4779447, at *1 (Mo. Ct. App. Oct. 24, 2017). [1] The MCHR terminated plaintiff’s complaint against his employer, reasoning that sexual orientation was not a protected class under the MHRA. Id.
The Court of Appeals began with the acknowledgment that sexual orientation is, indeed, not a protected class. Id. at *2. However, the Court noted that the plaintiff advanced a sex discrimination claim””as opposed to a sexual orientation discrimination claim””based on his employer’s perception that he failed to conform to male stereotypes. Id. The Court began its analysis of plaintiff’s sex discrimination claim by considering the sex-stereotyping theory of discrimination first advanced by the United States Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Id. This seminal case prohibits discrimination based on an employee’s failure to conform to gender stereotypes. Hopkins, 490 U.S. at 235. The Court of Appeals noted that “evidence an employee has suffered an adverse employment decision based on stereotyped ideas of how a member of the employee’s sex should act can support an inference of unlawful sex discrimination.” Lampley, 2017 WL 4779447, at *3. In addressing the fact that Plaintiff Lampley is a gay man, the Court clarified that “[s]exual orientation is incidental and irrelevant to sex stereotyping.” Id.; see also id. at *5 (“[A] sex stereotyping analysis does not create a new suspect class, but simply recognizes the manifold ways sex discrimination manifests itself.”). The Court went further to state, “[i]f an employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight.” Id. The Court concluded that, “[t]he prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation. Id.
Thus, in Missouri, an LGBT employee (or cisgender, heterosexual employee) who suffers an adverse action because his/her behavior does not conform to gender stereotypes likely can recover under the MHRA.
The Court cited a 2017 decision by the Second Circuit, which also extended the sex-stereotyping theory to protect a homosexual and HIV positive employee. Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2017). In this case, the plaintiff’s supervisor drew “sexually suggestive and explicit drawings” of the plaintiff on the office whiteboard and made numerous offensive remarks about plaintiff, stating that plaintiff “was effeminate and gay so he must have AIDS.” Id. at 198. The plaintiff sued for sex discrimination. However, the district court dismissed his complaint, holding that, “as a whole, Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but because he was gay.” Id. at 199. The district court found that the discrimination plaintiff purportedly suffered stemmed “from sexual orientation animus” rather than “sexual stereotyping.” Id. at 200. The Second Circuit reversed, finding that the plaintiff’s complaint identified “multiple instances of gender stereotyping discrimination.” Id.
The Second Circuit noted that a homosexual or bisexual plaintiff’s complaint should not be subject to stricter scrutiny than a heterosexual plaintiff’s claim under Title VII. Id. at 200-01. (“[G]ay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.”). The Court concluded that Christiansen had sufficiently pled that he was harassed because of his supervisor’s perception of him as “effeminate and submissive.” Id. at 201. Accordingly, because Christiansen’s allegations alleged he was discriminated against for demonstrating “stereotypically feminine” characteristics, his claim survived under the gender stereotyping theory. Id.
Takeaways for employers:
Although both cases were careful to point out that sexual orientation is not a protected class under Missouri or federal employment law, courts continue to expand the sex-stereotyping theory for the protection of gay, lesbian, or bisexual employees. This reasoning can also extend to protect transgender employees. Prudent employers should include sexual orientation and/or gender identity in their discrimination policies and should be training employees on how to recognize and prevent discrimination based on an employee’s failure to conform to gender stereotypes.
[1] Interestingly, the Court did not describe the plaintiff’s “behavior and appearance” that purportedly did not conform to his employer’s gender stereotypes, nor did it articulate how the plaintiff was discriminated against (it did note he was allegedly retaliated against with a low performance evaluation after he complained).
Mollie G. Mohan practices primarily in the areas of labor & employment, litigation, and higher education. Mollie represents colleges, universities, and private employers in labor and employment matters. Prior to joining the firm, Mollie worked at a large-sized litigation firm in Saint Louis. While in law school, Mollie was a student law clerk to the Honorable Jean C. Hamilton of the United States District Court for the Eastern District of Missouri.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.