Missouri Court of Appeals rules alleged discrimination based on sexual orientation not barred by Missouri Human Rights Act

By Jerry M. Hunter, Partner, Bryan Cave

In a case of first impression, the Missouri Court of Appeals, Western District, in a 2 to 1 decision issued on October 27 held that because the Missouri Human Rights Act does not bar discrimination based upon sexual orientation, a controller employed by Cook Paper Recycling Corporation cannot sue his former employer for allegedly discriminating against him based upon his sexual orientation or sexual preference.

James Pittman, the Plaintiff in the case, initially filed his Petition for Damages in Jackson County Circuit Court where he alleged that his employer, Cook Paper Recycling Corporation, “caused the workplace to be an objectively hostile and abusive environment based on sexual preference.”  The Circuit Court dismissed Pittman’s Petition on the grounds that he failed to state a claim for which relief could be granted.  Pittman thereafter filed an appeal with the Missouri Court of Appeals, Western District, where he argued that the Circuit Court erred in dismissing his claim because his Petition adequately stated a claim for sex discrimination in that he alleged that he was harassed and terminated from his employment because of his “sexual orientation.”  Specifically, Pittman alleged that he, a homosexual male, worked at the Company from April 2004 until his termination on December 7, 2011.  He also alleged that during the time he was employed by the Company, the President of the Company used a sexually derogatory term to refer to him and made other comments of a sexual nature, discriminatory to a male homosexual, including asking him if he had AIDS.  Pittman further alleged that the Company “discriminated against him because [the Company] did not approve of the male companion that he had been seeing” and that when he and his companion terminated their relationship, the Company “treated him more harshly than a male who was getting a divorce from his female wife.”  Pittman further alleged that the Company “caused the workplace to be an objectively hostile and abusive environment based on sexual preference.”  On December 7, 2011, the Company terminated Pittman’s employment.

On February 3, 2014, Cook Paper filed a Motion to Dismiss Pittman’s Petition for Damages arguing that the Petition failed to state a claim for which relief could be granted.  Specifically, Cook Paper argued that Missouri law lacks any legal standard or statute prohibiting employment discrimination on the basis of “sexual preference” and that “sexual preference” is not a protected class under the Missouri Human Rights Act.  The Circuit Court agreed with Cook Paper’s argument and dismissed Pittman’s claim.  The Circuit Court found that Pittman did not allege discrimination on the basis of “sex” but alleged that he was discriminated against because he was a homosexual.  Thus, the Circuit Court concluded that the Missouri Human Rights Act does not include sexual orientation as a class of individuals protected from discrimination.  Additionally, although Pittman urged the Court to recognize the claim of “sexual stereotyping,” the Court declined Pittman’s request and stated that it was not the role of the Court to create new causes of action.  The Circuit Court held that “[b]ased on the current state of Missouri law” it had to dismiss Pittman’s claim.  In appealing the Circuit Court’s dismissal of his case to the Missouri Court of Appeals, Western District, Pittman argued that the Circuit Court erred in dismissing his claim because his Petition adequately stated a claim for sex discrimination.  In particular, Pittman argued that his allegation that he was harassed and terminated from his employment because of his sexual orientation was sufficient to state a claim for discrimination under the Missouri Human Rights Act.  In discussing Pittman’s appeal, the Missouri Court of Appeals noted that Pittman “does not allege that he was discriminated against or harassed because of his gender but alleges that he was discriminated against because of his sexual orientation.”  The Court went on to note that “[I]n essence, Pittman’s Petition is seeking a declaration that sexual orientation discrimination qualifies for protection under the Missouri Human Rights Act because it is tantamount to discrimination based on sex.”  The Court of  Appeals also noted that Pittman’s Petition does not allege discrimination or harassment on the basis of “sex,” but Pittman merely alleges that “[Cook Paper] caused the workplace to be an objectively hostile and abusive environment based on sexual preference.”

In upholding the Jackson County Circuit Court’s dismissal of Pittman’s Petition for Damages, the Court of Appeals stated that unlike many other states, Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act.  The Court went on to state that if the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act’s protections, it could have done so.  The Court of Appeals further stated that “[W]ithout the legislative addition of “sexual orientation” to the statutory list of protected statuses, the Missouri Human Rights Act does not prohibit discrimination based upon a person’s sexual orientation.”  Finally, the Court of Appeals stated that contrary to Pittman’s and the American Civil Liberties Union’s contentions, the language of the Missouri Human Rights Act is clear and unambiguous:  it prohibits employment discrimination based on an individual’s race, color, religion, national origin, sex, ancestry, age or disability.  It does not prohibit discrimination on the basis of sexual orientation.