In 2014, two State of Missouri employees filed related
charges of discrimination and retaliation against their employer.[1] The charges, filed with the Missouri
Commission on Human Rights (“Commission”), alleged discrimination based on sex
under the Missouri Human Rights Act (“Act”).[2] The Commission determined the discrimination
complaints were based on sexual orientation, which is not a protected group
within the Act and administratively closed the matter.[3] The closure of the complaint denied the
plaintiffs right-to-sue letters, and so they asked the circuit court to force
the Commission to issue such letters.[4] The circuit court entered summary judgment in
favor of the Commission, which was then appealed to the Supreme Court of
Missouri.[5] The Supreme Court of Missouri ruled in favor
of the employees and held that the discrimination alleged was not based on
sexual orientation but rather sex stereotyping, which does fall under the
category of sex in the Act, and that the Commission should be compelled to
issue right-to-sue letters.[6]
I. Facts and Holding
Harold Lampley
(“Lampley”) and Rene Frost (“Frost”) were employees of the Missouri Department
of Social Services Child Support Enforcement Division.[7] Lampley, a gay man, stated that he “does not
exhibit the stereotypical attributes” of masculine behavior, which subjected
him to harassment at work.[8] He alleged that other similarly situated
workers who did behave according to stereotypes were treated differently and
that he was “grossly underscored” in performance reviews due to his complaints
about harassment.[9] He filed a complaint with the Commission for
discrimination based on sex and retaliation in July, 2014.[10] In December, 2014, Frost also filed a claim
of discrimination with the Commission.[11]
Frost alleged discrimination and retaliation based on her
association with Lampley, a person protected by the Act.[12] Her complaint to the Commission stated that
her employer violated its confidentiality policy by “publicly announcing her
performance review” because of her friendship with Lampley.[13] After filing the complaint, Frost alleged her
employer treated her differently than other employees by docking her vacation
time for meetings with union representatives and subjecting her to verbal abuse
and other “harassing behaviors.”[14]
The Commission investigated the claims from both
employees.[15] The Commission categorized Lampley’s sex
discrimination claim as discrimination based on “sexual orientation.”[16] Lampley’s claim was therefore terminated because
“sexual orientation is not protected by the Act.”[17] Similarly, because having an association with
a gay person is not protected by the Act, Frost’s claims were closed as well.[18] Frost and Lampley filed in circuit court for an
administrative review of the Commission’s decision or, in the alternative, a
writ of mandamus to force the Commission to issue right-to-sue letters. The circuit court hearing the appeal granted
the Commission’s motion for summary judgment, citing Pittman v. Cook Paper Recycling Corp., which held that “sex” as
used in the Act does not protect sexual orientation.[19] The circuit court included sex stereotyping
with orientation because it is not explicitly listed in the Act.[20] The Supreme Court of Missouri reversed the
circuit court’s decision and remanded for further proceedings.[21]
II. Legal Background
The Commission relied on the holding of Pittman v. Cook Paper Recycling Corp.,[22]
to defend its closure of the complaints of Frost and Lampley.[23] In that case, an employee named Pittman filed
suit against his employer under the Act, claiming he was subject to a hostile
and abusive work environment because of his sexual orientation.[24] The circuit court dismissed his petition for
failing to “state a claim for which relief could be granted.”[25] In a splintered opinion, the Missouri Court
of Appeals for the Western District affirmed the circuit court’s decision.[26] The relevant portion of the Act reads “it
shall be an unlawful employment practice . . . to discriminate against any
individual . . . because of such individual’s . . . sex . . . .”[27] Reading the plain language of the text, the
majority opinion found the term “sex” to be unambiguous and relate strictly to
gender.[28] As a result, sexual orientation is not
protected by the Act, at least not through the term “sex.”[29] The court shied away from addressing the
policy implications of excluding sexual orientation from the Act[30]
and declined to judicially broaden the Act, identifying that as a role for the
legislature.[31] The appellate court also demurred on whether
the Act protected against gender stereotyping, noting that the initial
complaint was devoid of allegations of such.[32] The Supreme Court of Missouri directly
addressed the interplay of the Act and sex stereotyping in Frost and Lampley’s
appeal.
III. Instant Decision
The majority opinion evaluated the Act and its
prohibition against discrimination because of “sex” and whether that term
includes “sex stereotyping.”[33] A prima facie case of employment sex
discrimination requires, inter alia, the employee to be a member of a protected
class.[34] The court began by noting that, as a remedial
statute, the Act “should be construed liberally to include those cases which
are within the spirit of the law . . . .”[35] The court then distinguished Pittman as controlling precedent, noting
that the court there specifically declined to state whether sex stereotyping
was included in the Act.[36] The claims of Lampley and Frost did not relate
to homosexuality but rather to discrimination based on a person who “did not
conform to generally held sexual stereotypes.”[37] This type of discrimination had been
addressed by the Supreme Court of the United States in Price Waterhouse v. Hopkins.[38] Citing an example from Price Waterhouse, the court noted that it was “clear” that a female
employee who is discriminated against by an employer for failing to wear a
dress or makeup is discriminated against on the basis of sex.[39] It is but for the victim’s sex that the
discrimination occurs at all.[40]
While sex stereotyping is not explicitly listed in the
Act as a protected characteristic, the court noted that the Commission “has the
power and duty to ‘adopt, [and] promulgate . . . suitable rules and regulations
to carry out the provisions of this chapter . . . .”[41] In fact, state regulations extend to protect
against “stereotyp[ing] characterizations of the sexes” in employment hiring.[42] Since the regulations already recognize sex
stereotyping in hiring, the court reasoned “it follows” that stereotyping
“during employment” is unlawful as well.[43] Therefore, the Commission had authority to
investigate the claims of Lampley and Frost and the authority to issue a
right-to-sue letter.[44] Given the time frame from the initial
complaint, however, the Commission no longer had authority to investigate.[45] Therefore, the court directed the circuit
court “to remand to the Commission with instructions to issue Lampley and Frost
right-to-sue letters.”[46]
Judge W. Brent Powell issued a dissenting opinion. The opinion began with a characterization of
the initial administrative case, noting that because the Commission did not conduct
hearings and instead had the executive director close the complaint, it should
be categorized as noncontested.[47] As a noncontested case, the circuit court
lacked the authority to review it as it did.[48] A noncontested case may be brought to a
circuit court for a writ of mandamus, which Lampley and Frost did in the
alternative, however they failed to first secure a preliminary writ.[49] Even if the court forgives this lapse in
process, Judge Powell argued, the circuit court should still be affirmed.[50] When reviewing a denial of a petition for a
writ of mandamus, the court uses the heightened “abuse of discretion” standard.[51] The appellate court would need to find that
the circuit court exercised its discretion in an arbitrary or capricious way.[52] Further, a writ of mandamus “cannot be used
to control the judgment . . . of a public official.”[53] Whether sex stereotyping is a part of sex
discrimination is at the “discretionary determination [of] the executive
director . . . [and] is not subject to review by mandamus.”[54]
IV. Comment
This decision is a
positive step for Missouri from both as a matter of public policy and as a
matter of common sense. The principle
arguments against the outcome are procedural and not substantive, which is a
tribute to the well-crafted reasoning of the majority opinion. When a court makes a decision with such
political implications, a solid legal footing, as is present here with
precedent from the Supreme Court of the United States, helps to stave off the
accusation of judicial activism.
Following the legislature’s desiccation of the Act two years ago by way
of Senate Bill 43, this is a win for civil liberties for Missouri residents.
- Chris Mathews
[1] Lampley v. Mo. Comm’n on Human
Rights, No. SC 96828, 2019 WL 925557, at *1 (Mo. Feb. 26, 2019) (en banc).
[2] Id.
[4] Id.
[5] Id.
[6] Id. at *7.
[7] Id. at *1.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[14] Id.
[15] Id. at *2.
[16] Id.
[17] Id.
[18] Id.
[19] Id.; 478 S.W.3d 479 (Mo. Ct. App. 2015).
[20] Id. at *5.
[21] Id. at *1.
[22] 478
S.W.3d 479 (Mo. Ct. App. 2015).
[23] Lampley, 2019 WL 925557, at *5.
[24] Pittman, 478 S.W.3d at 480.
[25] Id. at 481.
[26] Id. at 485.
[27] Mo.
Rev. Stat. § 213.055.1 (2000).
[28] Pittman, 478 S.W.3d at 482.
[29] Id.
[30] Id. at 483–84.
[31] Id. at 483. “We cannot usurp
the function of the General Assembly . . . .” Id. (quoting Marshall v. Marshall Farms, Inc., 332 S.W.3d 121, 128
(Mo. Ct. App. 2010)).
[32] Id. at 484.
[33] Lampley v. Mo. Comm’n on Human
Rights, No. SC 96828, 2019 WL 925557, at *4 (Mo. Feb. 26, 2019) (en banc).
[34] Id.
[35] Id. (quoting Mo. Comm’n on Human Rights v. Red Dragon Rest., Inc.,
991 S.W.2d 161, 166 (Mo. Ct. App. 1999)).
[36] Id. at *5.
[37] Id.
[39] Id. (quoting Price Waterhouse,
490 U.S. at 251).
[40] Id.
[41] Id. (citing Mo. Rev. Stat.
§213.030 (2000)).
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id. at *14–15 (Powell, J., dissenting).
[48] Id. at *15.
[49] Id.
[50] Id. at *17.
[51] Id.
[52] Id. at *18.
[53] Id. (citation omitted).
[54] Id. at *19.
