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Missouri Court of Appeals Declines to Recognize Sexual Orientation Cause of Action

By Karen R. Glickstein

Going against the recent trend of courts interpreting statutory language prohibiting “sex” discrimination including a cause of action for sexual orientation discrimination or harassment, the Missouri Court of Appeals recently issued a pro-employer decision to the contrary.  Holding that the plain language of the statute cannot be interpreted to expand protections on grounds that are not explicitly included by the legislature, the court declined to find a cause of action for sexual orientation discrimination.  While Missouri employers may currently not be subject to liability in cases alleging sexual orientation discrimination or harassment under the Missouri Human Rights Act (“MHRA”), the opinion in Pittman v. Cook Paper Recycling Corp., Case No. WD 77973 (Mo. App.) will likely be subject to review by  the Missouri Supreme Court given the sharply divided appeals court which issued a “majority” opinion; a curt, concurring opinion; and a biting dissent seeking policy reform.

Pittman, a homosexual male, filed suit in Jackson County Circuit Court after he was discharged from his seven year employment as a controller at defendant Cook Paper.  He alleged in his Petition that, over the course of his employment, the President of Cook Paper called him by derogatory names, made other comments that were demeaning to homosexuals and, after his breakup with his companion, treated him “more harshly than a male who was getting a divorce from his female wife.”  The Petition alleged both a hostile environment based on sexual preference and discriminatory discharge.

The Circuit Court granted Cook Paper’s motion to dismiss for failure to state a claim upon which relief could be granted, finding that the plain language of the MHRA did not include “sexual preference” as a protected category. The trial court also declined Plaintiff’s request to recognize a claim of “sexual stereotyping,” finding that it was not the role of courts to create new causes of action.

Writing the majority opinion for the Court of Appeals, Judge Welsh focused on the plain language of the statute, which references “sex” and “has nothing to do with sexual orientation.”  He also noted that the petition alleged a hostile environment “based on sexual preference” and not “sex,” suggesting that if plead slightly differently, Plaintiff might have had more to argue.  The opinion succinctly noted that no cause of action exists under the state anti-discrimination statute until amended by the General Assembly, something which has been attempted unsuccessfully in prior sessions in both the Missouri Senate and the Missouri House of Representatives, although will likely again be on the agenda in the upcoming legislative session.

In a short concurring opinion, Judge Clayton wrote only that he “respectfully and reluctantly” concurred with Judge Welsh’s opinion “with respect to the result only."

The dissent, authored by Judge Gabbert, took direct issue with the conclusion that the plain language of the statute prohibits discrimination or harassment based on sexual orientation.  Instead, the opinion focused on the role of courts when making policy, citing to state Supreme Court decisions in different contexts where the court has noted that it would be “speculative to infer legislative approval from legislative inaction.”   Despite state court opinions generally holding that federal anti-discrimination statutes differ from the MHRA, and, therefore, should not be used to guide interpretation of the state statute, the dissent focused on recent federal law and guidance finding that Title VII’s prohibition against “sex” discrimination should be interpreted broadly, as well as on several state court opinions urging an expansive reading of the MHRA.  

While the recent decision may give some peace of mind to Missouri employers who, at least for the time being, appear to be protected from lawsuits under the state statute which is considered “remedy rich” for employees and, unlike its federal counterpart, allows for individual liability, businesses in the state must still be mindful of potential liability for sexual orientation discrimination.  Local ordinances in Jackson and St. Louis counties, as well as in several cities including Columbia, Kansas City and St. Louis, prohibit discrimination or harassment based on sexual orientation (a similar measure in Springfield was recently repealed by electoral vote)  and any business with more than 15 employees is covered by Title VII which, although not expressly prohibiting such discrimination, has recently been given broad interpretation.   In addition, the EEOC has made sexual orientation discrimination a centerpiece of its Strategic Enforcement Plan.