A Missouri appeals court on Tuesday ruled that lesbian, gay, bisexual and transgender individuals may sue for sex discrimination under state law if employers take discriminatory actions against them.

A Missouri Court of Appeals Western District three-judge panel ruled that while employment discrimination based on sexual orientation or gender identity is not explicitly prohibited by Missouri law, discrimination based on sex-stereotypes — which may be stereotypes held against LGBTQ individuals — is prohibited as sex discrimination. The decision follows recent federal court opinions that broaden the interpretation of sex discrimination laws to include cases involving both gender identity and sexual orientation.

“If the employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight,” Judge Anthony Gabbert wrote in the opinion. “The prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation.”

Albeit on narrow grounds, the panel overturned decisions by the the Cole County Circuit Court and Missouri Commission on Human Rights which threw out claims of employment discrimination and retaliation by West Plains resident Harold Lampley and Cabool resident Rene Frost. The appeals court instructed the human rights commission to issue right-to-sue letters so Lampley's and Frost's discrimination claims could proceed against their former employer, the Department of Social Services Child Support Enforcement Division.

In 2014, Lampley field complaints of sex discrimination and retaliation after he said he was harassed and treated differently than other employers because “his behavior and appearance” contradicted male stereotypes held by his bosses. Lampley, who is a gay man, also argued he was underscored in a performance evaluation in retaliation for his complaints.

Frost, a close friend and coworker of Lampley’s, alleged she was also retaliated against based on her association with him.

The human rights commission in 2014 declined to evaluate the discrimination claims, finding that it did not have jurisdiction because the discrimination was based on sexual orientation. The Missouri Human Rights Act makes it unlawful to discriminate against employees because of sex, race, color, religion, national origin, ancestry or disability.

The group did not address arguments by Lampley and Frost that the unfair treatment was sex discrimination, evidenced by stereotyping.

Appeals court judges disagreed with the human rights commission’s argument that designating the discrimination Lampley faced as "sex stereotyping" transforms sexual orientation into a protected class. Gabbert wrote that the commission “seems to fear” gay and lesbian employees will make sex stereotyping claims instead of sexual orientation claims.

“A sex stereotyping analysis does not create a new suspect class, but simply recognizes the manifold ways sex discrimination manifests itself,” Gabbert wrote.

The judges noted that in March, a federal appeals court similarly found that ridicule against an employee as an "insufficiently masculine sissy” qualified as sex discrimination under Title VII of the Civil Rights Act of 1964. The act makes it unlawful to discriminate against any individual because of sex with respect to compensation, terms, conditions or privileges of employment.

Tony Rothert, the legal director of the American Civil Liberties Union of Missouri, said the decision has big implications for the employment rights of LGBTQ individuals across Missouri. Previously, the court has rejected the notion that gender identity or sexual orientation discrimination “are on their face sex discrimination,” he said. Rothert filed a brief in the appellate court case on behalf of the ACLU.

“It’s not enough to say ‘I’m gay or a lesbian’ on its own to be sex discrimination,” Rothert said. “But if there are specific facts showing that an employer is taking adverse acts against an employee because he or she is not conforming to expectations based their sex? That is illegal in Missouri.”

Mistreatment of LGBTQ individuals in the workplace is common, said Jill Silverstein, the attorney for Lampley and Frost. The law does not explicitly need to list sexual orientation as a protected class for mistreatment of people who do not conform to gender norms to be illegal, she said.

“There is a perceived notion as to how a man or woman should be — how they dress, who they choose as a partner, how they speak,” said Silverstein. “It’s sex stereotyping, and stereotyping is discrimination.”

Rothert said although the decision is a step in the right direction, discrimination law still does not explicitly include sexual orientation and gender identity, though some cities, such as Columbia, have broadened their anti-discrimination laws.

“It’s bad policy, and it’s bad for Missouri to have that be legal,” Rothert said. “There is still legislative work to do.”

ccampbell@columbiatribune.com

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