Mollie G. MohanMissouri employers are currently facing conflicting guidance on how to confront LGBT discrimination issues in the workplace. In October of 2015, a Missouri Court of Appeals held that the Missouri Human Rights Act (“MHRA”)””the state law that governs employment discrimination””does not prohibit sexual orientation discrimination. In contrast, the Equal Employment Opportunity Commission (“EEOC”), the agency tasked with enforcing Title VII””the federal law that governs employment discrimination””has held that Title VII does prohibit sexual orientation discrimination and recently filed two lawsuits to enforce this theory.
The MHRA prohibits discrimination “because of an individual’s race, color, religion, national origin, sex, ancestry, age or disability”””the statute does not include sexual orientation as a protected class. The plaintiff in the first MHRA sexual orientation lawsuit claimed he was subject to “an objectively hostile and abusive work environment based on sexual preference.” Because sexual preference (sexual orientation) is not protected under the MHRA, the Missouri Court of Appeals for the Western District of Missouri held that the plaintiff’s claim was precluded.
In contrast, the EEOC contends that sexual orientation discrimination is per se sex discrimination under Title VII. In a July 2015 administrative ruling, the EEOC found that “sexual orientation is inherently a sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination.” In March 2016, the EEOC filed the first two lawsuits advancing this theory. In its press release, the EEOC stated that it brought these suits to “solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation” and because, “[w]hile some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”
So, if Missouri state and federal courts treat these claims differently, what should employers in Missouri do when facing a potential LGBT discrimination claim? The answer will depend on the factual scenario, but employers should err on the side of caution and not engage in sexual orientation discrimination. Since Title VII offers a protection that the MHRA does not, an employee could choose to file a federal lawsuit if the employee feels he/she was discriminated against based on sexual orientation. Given that employers could be vulnerable under federal law, it is advisable that employers treat claims for sexual orientation discrimination like all other protected class discrimination claims. Employers should consider adding sexual orientation to the categories of protected persons in their discrimination/EEO policies.