The Missouri Supreme Court issued a pair of rulings on February 26, reversing circuit court dismissals of sex discrimination lawsuits by gay and transgender plaintiffs. Lampley v. Missouri Commission on Human Rights, 2019 WL 925557, 2019 Mo. LEXIS 52; R.M.A. v. Blue Springs R-IV School District, 2019 WL 925511, 2019 Mo. LEXIS 54. In both cases, the court was sharply split, and in neither opinion did the Court hold that sexual orientation or gender identity discrimination claims, as such, may be brought under the state’s Human Rights Law. However, at least a majority of the seven judges agreed in both cases that being gay or transgender does not bar an individual from making a sex discrimination claim under the statute, which it least allows them to survive a motion to dismiss for failure to state a claim.
The decision is significant because Missouri is a conservative state that has not amended its Human Rights Act to ban discrimination because of sexual orientation or gender identity, and Missouri’s federal courts are in the 8th Circuit, where the federal court of appeals has not yet ruled on a pending appeal posing the question whether the federal Civil Rights Act’s ban on sex discrimination can be interpreted to cover such claims.
The first of the two decisions, Lampley v. Missouri Commission on Human Rights, involves discrimination claims by two employees of the Missouri Department of Social Services Child Support Enforcement Division. Harold Lampley filed a discrimination charge with the Commission, checking off on the charge form that he was a victim of discrimination because of “sex” and “retaliation.” A heterosexual co-worker of Lampley, Rene Frost, also filed a charge, claiming she suffered “retaliation” because of her association with Lampley.
In the narrative portion of his charge, Lampley stated that he is a gay man who does not exhibit the stereotypical attributes of how a male should appear and behave, as a result of which he was treated differently from “similarly situated co-workers” who were not gay and who exhibited “stereotypical male or female attributes.” Lampley claimed he was subjected to harassment at work, and that in retaliation for his complaints, he was “grossly underscored” in a performance evaluation.
In her narrative, Frost described her close friendship with Lampley. Frost had complained about a performance review, the result of which was publicly announced to her co-workers in a departure from practice, and after which she claimed the employer moved her desk away from Lampley and the other co-workers with whom she collaborated. She was told she and Lampley were not allowed to eat lunch together, as they customarily did. She also claimed that, unlike other employees, both she and Lampley were docked for pay for the time they met with their union representative about these issues, and that she continued to be subjected to verbal abuse, threats about her performance review, and “other harassing behaviors” as a result of her friendly association with Lampley.
The Commission’s investigator decided that Lampley was really trying to assert a sexual orientation discrimination claim, and that Frost’s claim was really that she was discriminated against for associating with a gay person. In both cases, the investigator determined that the Act did not cover these charges, and the Commission terminated its proceedings, stating that both claims did not involve a category of discrimination covered by the law. The cases were “administratively closed,” and the Commission did not issue either Lampley or Frost the usual “right to sue” notice that would authorize them to go to court.
Thus stymied, Lampley and Frost filed petitions with the circuit court for administrative review, or, alternatively, for a writ of mandamus – an order from the court to the Commission to issue them right-to-sue notices. The circuit court granted the Commission’s motion for summary judgment, citing a 2015 Missouri Court of Appeals decision that stated that sexual orientation claims are not covered by the statute.
The Supreme Court judges were divided over how to characterize this case and whether the Supreme Court even had jurisdiction to decide it, finding procedural problems with the Lampley and Frost lawsuits, but ultimately a majority concluded that they could address these appeals on the merits.
As to that, three members of the seven-member court, joining in an opinion by Judge George W. Draper, III, concluded that it was appropriate to follow federal precedents stemming from the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), holding that the denial of a promotion to a female employee who was criticized as being too masculine in her dress and demeanor violated the rule against discrimination because of sex. The Supreme Court accepted the argument that reliance on sex stereotypes in making personnel decisions was evidence of employment discrimination because of sex.
Turning to this case, Judge Draper wrote that it was wrong for the Commission to drop its investigation and close the case, because Lampley did not allege in his charge that he was a victim of sexual orientation discrimination. Although he mentioned more than once in his narrative that he is a gay man, his claim was that he was a victim of sex discrimination because he did not exhibit stereotypical attributes of males. Thus, he was entitled to an investigation of his claim, and similarly Frost was entitled to an investigation of her claim of retaliation against her based on her association with Lampley. Draper emphasized that sexual orientation discrimination claims, as such, are not covered by the statute. But he pointed to several opinions by federal courts, interpreting Title VII, that allowed gay plaintiffs to pursue sex discrimination claims using the sex stereotype theory.
Furthermore, wrote Draper, since the statutory time for investigation of a claim had long since expired, the appropriate remedy was for the circuit court to issue a writ of mandamus ordering the Commission to issue right-to-sue notices to Lampley and Frost so they could pursue their discrimination claims in the circuit court.
One member of the Supreme Court concurred, but on a narrower ground. Judge Paul C. Wilson, who wrote the opinion for a majority of the court in the R.M.A. case, discussed below, wrote that this case “should be analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims covered by the MHRA,” which, he wrote, “they plainly do.” However, he wrote, “the principal opinion does not stop there. Instead, it proceeds to opine on whether ‘sex stereotyping,’ as discussed in the Title VII context in Price Waterhouse v. Hopkins, is a type of sex discrimination under the MHRA.” But, referring to his opinion in R.M.A., Wilson argued that the MHRA “does not provide for ‘types’ of sex discrimination claims.” Either a claimant is alleging sex discrimination or not. If he or she is alleging sex discrimination, they are entitled to have their claims investigated and, ultimately, to present them to a court if they can’t be resolved by the Commission.
Judge Wilson would leave to a later stage in the litigation, when the matter is before the circuit court on the merits, the question whether the facts proven by the plaintiff in the lawsuit would amount to sex discrimination in violation of the law. Thus, he saw the discussion of sex stereotypes as premature at this stage of the litigation.
Wilson agreed with Judge Draper’s opinion that the MHRA does not forbid sexual orientation discrimination as such. His concurring vote, however, provided Draper with the majority to hold that the circuit court should not have granted summary judgment to the Commission, because Lampley was not claiming sexual orientation discrimination.
Chief Judge Zel Fischer agreed with Draper and Wilson that the state law does not forbid sexual orientation discrimination, but Fischer concluded for procedural reasons that the appeal should be dismissed. Judge W. Brent Powell, in a separate dissent, while agreeing with Fischer that the court should dismiss the appeal on procedural grounds, said that otherwise the circuit court’s decision should be affirmed because “mandamus cannot be used to control the administrative agency’s executive director’s discretionary determination that Lampley’s and Frost’s complaints alleged discrimination based on sexual orientation rather than sex stereotyping.” If that decision was reviewed under an “abuse of discretion” standard, wrote Powell, “the executive director did not abuse her discretion in closing Lampley’s and Frost’s complaints because the determination that the complaints alleged discrimination based on sexual orientation rather than sex stereotyping was not unreasonable, arbitrary, or clearly against the logic of the circumstances considering the allegations contained in the complaints.”
The footnotes of the opinions by Draper and Powell battle over how to characterize the narrative portions of the charges filed with the Commission. Draper emphasizes that both Lampley and Frost claimed to be victims of sex discrimination because of sex stereotyping, while Powell emphasizes that Lampley’s extended narrative, not quoted in full in the plurality opinion, could clearly support a conclusion that he was the victim of sexual orientation discrimination, thus making the Commission’s conclusion rational and not arbitrary.
In the R.M.A. case, the teenage student filed suit claiming that the school’s refusal to let him use boys’ restrooms and locker rooms was discrimination because of sex. The plaintiff’s claim to the Commission and Complaint in the Circuit Court stated that his “legal sex is male” and that by denying him “access to the boys’ restrooms and locker rooms,” the school discriminated against him in the use of a public accommodation “on the grounds of his sex.”
R.M.A. filed his charge with the Commission in October 2014, and the Commission issued him a right-to sue notice in July 2015. He filed suit against the school district and board of education in October 2015. The defendants move to dismiss the complaint on two grounds: that the Act does not cover gender identity discrimination, and that the public schools are not subject to the public accommodations provisions. The circuit court granted the motion to dismiss in June 2016, “without explanation,” and R.M.A. appealed.
Writing for give members of the court, Judge Wilson, as noted above in his concurring opinion in the Lampley case, asserted that it was unnecessary for the court to deal with the question whether R.M.A. had a valid sex discrimination. Since it was dealing with an appeal from a motion to dismiss, he wrote, the court should focus on what R.M.A. alleged in his Complaint. There, he stated that he was legally a male, and that the school’s denial of his access to the boys’ facilities discriminated against him because of his sex. To Wilson, this was straightforward. R.M.A. was claiming sex discrimination, and denial of access to school facilities because of his sex. At this stage of the litigation, that should be enough to survive a motion to dismiss, and it was not necessary to address the question whether gender identity discrimination claims can be brought under the statute, because R.M.A. made no such claim in his Complaint. Furthermore, Wilson saw no merit to the argument that the school’s restroom and locker room facilities were not subject to the ban on sex discrimination in public accommodations under the MHRA.
One can easily imagine what Judge Powell thought about this. In his vehement dissent, joined by Chief Judge Fischer, Powell insisted that the term “sex” as used in the Act could not be construed to allow gender identity discrimination claims, and he insisted that this is what R.M.A. was trying to assert.
“The MHRA does not define the word ‘sex,’” wrote Powell. “When there is no statutory definition, the plain and ordinary meaning of a statutory term can be derived from the dictionary.” Quoting from Webster’s 3rd New International Dictionary (1993), the word “sex” means “one of the two divisions of [organisms] esp. human beings respectively designated male or female.” A secondary definition from Webster’s is the “sum of morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination… that is typically manifested as maleness or femaleness.” And a third definition: “The sphere of interpersonal behavior esp. between male and female,” and the “phenomena of sexual instincts and their manifestations,” and “determining the sex of an organic being.” Powell characterized these as boiling down to the concept of “biological sex,” asserting: “The MHRA, therefore, prohibits discrimination based on the biological classifications of male or female and does not extend to the separate concept of transgender status.”
Consequently, Powell concluded, “the petition survives a motion to dismiss only if it alleges that, as a biological female, R.M.A. was deprived of a public accommodation available to biological males. R.M.A. makes no such allegation,” Powell continued. “Instead, R.M.A. alleges he is a female who has transitioned to living as a male, and that the Defendants discriminate against him based on his sex by preventing him from using the boys’ restrooms and locker room. R.M.A. does not allege that, as a biological female, he was barred from any public accommodation afforded to biological males. Instead, R.M.A.’s allegation of discrimination distills to an acknowledgment that the Defendants excluded him from the boys’ restrooms and locker room because he is biologically female. If, as the principal opinion reasons, the relevant allegation is that R.M.A.’s ‘legal sex’ is male, then the majority will have ignored the crux of the petition while discarding the substance of the MHRA. The logical upshot is that the majority is presumably willing to hold the MHRA prohibits schools from maintaining separate restrooms and locker rooms for male and female students. The alternative, of course, is to accept all of R.M.A.’s allegations as true, apply the plain language of the MHRA, and hold R.M.A.’s petition fails to state a claim of sex discrimination.”
Powell concluded that the question whether the statute should cover this kind of case was a policy question for the legislature, not the court. “The General Assembly has spoken, and R.M.A.’s petition fails to state a claim of unlawful sex discrimination under the MHRA,” stated Powell, declaring that the judgment of the circuit court should be affirmed. To Judge Wilson, speaking for a majority of the court, Judge Powell’s arguments were irrelevant on the motion to dismiss, since R.M.A. had met the minimal pleading requirement of articulating a claim of sex discrimination.
Given the voting dispositions in these two cases, it is difficult to predict the future course of sex discrimination claims by gay and transgender plaintiffs in Missouri. While they may survive motions to dismiss their claims, and a reluctant Human Rights Commission may be able to conciliate with the parties and obtain settlements in some cases, ultimately the questions posed by Judge Powell will come right back when the cases are litigated on the merits. Since Judge Draper’s analysis was supported by only a minority of the court, it is uncertain whether his use of the sex stereotype theory would prevail in a ruling on the merits of a gay plaintiff’s sex discrimination claim. And the limited nature of Judge Wilson’s ruling in R.M.A.’s case gives no hint of how a majority of the court would deal with a transgender student’s claims to restroom and locker room access. Looming over all these questions is the pending 8th Circuit appeal under Title VII, and the possibility that the U.S. Supreme Court may hear cases next term concerning gay and transgender rights under federal sex discrimination laws.
Lampley and Frost are represented by Jill A. Silverstein, D. Eric Sowers, Ferne P. Wolfe and Joshua M. Pierson of Sowers & Wolf LLC in St. Louis. R.M.A. is represented by Alexander Edelman and Katherine Myers of Edelman, Lisen & Myers LLP in Kansas City, and Madeline Johnson of the Law Offices of Madeline Johnson in Platte City, Missouri.