Missouri Appellate Court’s Holding That Sex Discrimination May Be Based on Sex Stereotyping Offers Some Protections for LGBT Employees

In Lampley, et al. v. Missouri Commission on Human Rights,1 the Missouri Court of Appeals held that sex stereotyping can form the basis of a sex discrimination claim when the complaining party is gay, but should not be construed as a claim for sexual orientation discrimination.2 The latter cause of action is not a cognizable claim under the Missouri Human Rights Act (“MHRA”). Further, a complaining party’s sexual orientation is irrelevant to the claim of discrimination based upon sex stereotyping.

Complainant Lampley brought a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) alleging that his employer discriminated against him based on sex because his behavior and appearance did not conform to the stereotypes of maleness held by his employer.  Lampley acknowledged in the pleadings that he is gay.  Lampley contended that the stereotypes motivated his employer to harass him and treat him differently from similarly situated males who allegedly adhered to traditional male stereotypes.  Frost, Lampley’s co-worker, also filed a charge claiming retaliation based on her association with Lampley. 

The MCHR terminated the processing of the administrative charges because it stated that it lacked jurisdiction because the claims were based upon sexual orientation, and therefore did not issue right-to-sue letters.  Lampley and Frost sought administrative review against the MCHR in the circuit court, which later granted summary judgment in favor of the MCHR.

Lampley and Frost contended on appeal that the claims were based on sex, not sexual orientation.  Discrimination based on sex is prohibited by the MHRA, but discrimination based on sexual orientation is not.3  Lampley and Frost contended that the sex discrimination was based upon sex stereotyping.

In reversing the motion for summary judgment, the Missouri Court of Appeals held that sex stereotyping can be used to establish that “the employee was treated differently from similarly situated members of the opposite sex.”4  The appellate court noted while sex stereotyping has not been formally recognized as a basis to establish sex discrimination, other discrimination cases have held that stereotyping can be used to create an inference of discrimination.  The Court of Appeals noted that sex stereotyping was initially recognized as a form of sex discrimination by the United States Supreme Court in Price Waterhouse v. Hopkins.5  Further, the appellate court noted that the MCHR’s regulations state that sex-based stereotyping is a prohibited employment practice.6

The Missouri Court of Appeals stated that it is not making sexual orientation a protected class under the MHRA, but that sex stereotyping can be the basis of disparate treatment.  The appellate court also noted that “sexual orientation is incidental and irrelevant to sex stereotyping” because “the prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation.”7  The appellate court noted that its position is supported by federal courts' interpretation of sex stereotyping as a basis for sex discrimination under Title VII.

The court stated that the entry of summary judgment was inappropriate because Lampley and Frost should be able to present evidence of the sex stereotyping they allege in their charges.  The court remanded the case to the trial court, which in turn will return the matter to the MCHR with instructions to issue right-to-sue letters to Lampley and Frost since the time for investigation has lapsed under the MHRA.

The recent amendments to the MHRA have no impact on this holding.  The opinion is not final, and could be reheard by the Missouri Court of Appeals or transferred to the Missouri Supreme Court for further consideration.

While sexual orientation and gender identity cannot form the basis of a claim under the MHRA, sex stereotyping can form the basis of a sex discrimination claim, and the individual’s sexual orientation is irrelevant.  Employers should prohibit stereotyping on the basis of any protected categories, and should include prohibitions against stereotyping in their handbooks, and discrimination and harassment policies.

See Footnotes

1 No. WD80288 (Mo. Ct. App. Oct. 24, 2017).

2 By contrast, some courts, including the U.S. Court of Appeals for the Seventh Circuit, have found that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. See Kevin Kraham and Emily Haigh, Seventh Circuit Holds Title VII Protections Extend to Sexual Orientation Discrimination, Littler ASAP (Apr. 6, 2017).

3 Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. Ct. App. 2015).  Additionally, gender identity is also not recognized as a protected class under the MHRA.  R.M.A v. Blue Springs R-IV Sch. Dist., 2017 Mo. App. LEXIS 716 (Mo. Ct. App. July 18, 2017).

4 No. WD80288 (Mo. Ct. App.  Oct. 24, 2017).

5 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989).

6 8 CSR 60-3.040(2).

7 No. WD80288 (Mo. Ct. App. Oct. 24, 2017).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.