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Sex-Based Stereotyping Recognized as a Valid Theory of Discrimination

By Christopher L. Johnson

Neither Title VII nor the Missouri Human Rights Act (the “MHRA”) expressly prohibits discrimination on the basis of sexual orientation. In a prior post, we discussed a developing theory adopted by courts and administrative agencies that extends Title VII protections of sex discrimination to LGBTQIA individuals on the basis of nonconformance to gender stereotypes. The Missouri Court of Appeals recently held for the first time that the MHRA similarly supports a sex-stereotyping theory and that “[s]ex-based stereotyping can give rise to an inference of unlawful discrimination.”

In Lampley v. Missouri Commission on Human Rights, an employee filed a Charge of Discrimination alleging that his employer discriminated against him on the basis of sex. The employee alleged that, as a gay male, his behavior and appearance contradicted the stereotypes of maleness held by his employer, and the employer treated him differently from employees who conformed to gender stereotypes.

The Missouri Commission on Human Rights (“MCHR”) terminated its investigation into the employee’s complaints and did not issue a right to sue letter on the grounds that it lacked jurisdiction over the claims because they were based on sexual orientation. The employee petitioned the trial court for administrative review, which granted summary judgment in favor of the MCHR on the grounds that sexual orientation and gender stereotyping are not recognized under the MHRA.

The Court of Appeals for the Western District of Missouri acknowledged that claims of discrimination based on sexual orientation are not covered by Missouri law. Reversing the trial court, the Court of Appeals held that the MHRA does, however, prohibit sex-based stereotyping that deprives persons of rights based on traits unique to one’s sex (real or perceived). The Court of Appeals found that the employee’s sexual orientation was merely incidental to the underlying claim of sex discrimination. Whether the employee is “gay neither precludes nor insures his MHRA protections.” The Court of Appeals further held that:

"If an employer mistreats a male employee because the employer deems the employee insufficiently masculine, it is immaterial whether the male employee is gay or straight. 

. . . a sex stereotyping analysis does not create a new suspect class, but simply recognizes the manifold ways sex discrimination manifests itself. The MCHR seems to fear that gay and lesbian employees will assert sex stereotyping in lieu of a sexual orientation claim. That is, the MCHR fears sex stereotyping will be a mere pretext. But the issue before this court is simply whether material issues of fact prevent the entry of judgment as a matter of law. Whether the claim is mere pretext is a question for the trier of fact."

The case was remanded to the trial court with instructions for the MCHR to issue a right to sue letter, which will allow the employee to pursue his claims in court. The MCHR may request rehearing or transfer to the Missouri Supreme Court for further review.

This ruling potentially broadens the scope of actionable claims under the MHRA. Employers should review and consider revising their policies and procedures regarding non-discrimination, harassment, equal employment, and benefits to conform to recent decisions regarding sex-stereotyping and other legal developments.