Missouri Appellate Court Rules that State Law Does Not Prohibit Sexual Orientation DiscriminationNovember 2015
On October 27, 2015, in Pittman v. Cook Paper Recycling Corp., a three-judge panel of the Court of Appeals for the Western District of Missouri held that the Missouri Human Rights Act (MHRA) does not prohibit discrimination on the basis of sexual orientation. The 2-1 ruling (with a majority opinion signed by just one judge) marks the first time that a Missouri appellate court has addressed this issue, and its decision directly contradicts the EEOC's landmark July 16, 2015 ruling that Title VII's parallel prohibition of discrimination "because of…sex" included sexual orientation.
James Pittman alleged that while employed by Cook Paper Recycling Corporation, the president of the company subjected him to comments of a sexual nature that discriminated against him as a homosexual male. The comments included calling him derogatory names and asking him if he had AIDS. He further alleged that Cook Paper discriminated against him because it did not approve of his male partner and that when the couple ended its relationship, Cook Paper treated him "more harshly than a male who was getting a divorce from his female wife." On December 7, 2011, Cook Paper terminated Pittman's employment.
Pittman's suit claimed that Cook Paper created an objectively hostile and abusive environment "based on sexual preference." The trial court dismissed the case, holding that the MHRA does not prohibit discrimination based on sexual orientation. Pittman appealed.
The Appellate Court's Decision
In holding that the MHRA does not prohibit discrimination on the basis of sexual orientation, the appellate court majority reasoned that the plain language of the MHRA prohibits workplace discrimination on the basis of "sex," which concerns discrimination because of one's gender, not sexual orientation. The court ruled that in the absence of legislative action that would add "sexual orientation" to the list of classes protected under the MHRA, the statute cannot be held to prohibit discrimination on that basis.
The court observed that Pittman did not allege that he was discriminated against because of his sex, nor did he include allegations of gender stereotyping. Rather, he alleged only that he was subjected to a hostile work environment because of his "sexual preference." Thus, his claims were premised solely on his sexual orientation. Had Pittman pled his claims differently (e.g., he was discriminated against because he did not conform to his employer's gender-based expectations), the court might have reached a different result.
The dissent, on the other hand, took the position that discrimination based upon a person's sexual orientation is prohibited by the MHRA because sexual orientation is encompassed by the term "sex" as it is used in the statute. On this point, the dissent took the same position as the EEOC: sexual orientation is inherently a sex-based consideration, and discrimination on that basis is therefore prohibited under existing law.
The Impact of the Decision
Before this decision, no Missouri court had addressed whether the MHRA prohibited discrimination on the basis of sexual orientation. And even now, only one judge has provided analysis supporting the decision, because the second justice concurred in the result alone, not the rationale. Pittman has sought a rehearing or, alternatively, transfer to the Missouri Supreme Court, which has returned several employee-friendly opinions in the past decade. Surely the Pittman decision is not the final word, but it does represent the current state of the law in Missouri on a rapidly evolving issue. Even though Missouri law is not yet settled, employers should remember that employees may still bring discrimination claims based on sexual orientation pursuant to Title VII. As discussed in a prior alert, the EEOC's July 16, 2015 ruling makes clear that the EEOC will fully investigate charges claiming sexual orientation discrimination.