May 9, 2019 – Associated Industries of Missouri (AIM) took a stand in defense of its member employers yesterday in a hearing on bills that would establish new protections for sexual orientation and gender identity and would roll back changes made in previous years by redefining “discrimination.”
AIM was a major supporter of the earlier changes in the proof standard for proving discrimination contained in Senate Bill 43, passed and signed into law in 2017. These changes required the alleged discrimination to be the “motivating factor” in the employer’s employment decision, rather than the lower “contributing factor” standard that was used at that time by Missouri courts.
The two bills heard by the committee would redefine “discrimination” and could be interpreted to roll back this change by omitting the standard of proof altogether and prohibiting discrimination “based on a person’s presumed or assumed race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, age as it relates to employment, disability or familial status as it relates to housing, regardless of whether the presumption or assumption as to such characteristic is correct.“
Associated Industries of Missouri also opposed the addition of “sexual orientation” and “gender identity” as protected classes in the Missouri Human Rights Act for two important reasons:
- The legislation provides a new cause of action against employers. While Associated Industries of Missouri supports encouraging companies to have policies that are welcoming and that eliminate harassment and discrimination, we believe enacting a statute will result in new lawsuits against employers, even those that are not truly discriminating and that may take action against an employee for completely valid reasons; and,
- Creating a new cause of action for “sexual orientation” and “gender identity” is particularly troublesome. These two proposed protected classes are determined by a person’s feelings and their association, or lack of association, with other people, rather than objective criteria. Unlike other protected criteria, a person’s feelings would be the basis for protection under the MHRA. How would an employer know if a person were entitled to this protection?
According to the American Psychological Association (APA), gender identity and sexual orientation are not the same. “Sexual orientation” refers to an individual’s enduring physical, romantic, and/or emotional attraction to another person, whereas “gender identity” refers to one’s internal sense of being male, female, or something else.
Also, according to the APA, gender identity and sexual orientation are different than “sex”. “Sex” is assigned at birth, refers to one’s biological status as either male or female, and is associated primarily with physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy.
The U.S. Supreme Court has taken up three cases that could establish whether the existing federal protection against sex discrimination applies to alleged discrimination because of sexual orientation and gender identity. Missouri should wait on those decisions. One of the cases, Harris Funeral Homes, Inc. v. EEOC and Aimee Stephens involves a transgendered person and involves allegations of sexual stereotyping. In Bostock v. Clayton County, Georgia, a gay man alleges he was discriminated against because of his sexual orientation and sexual stereotyping. And in Altitude Express, Inc. v. Melissa Zarda, et al., a gay man alleges he was discriminated against because of his sexual orientation and sexual stereotyping. The latter two cases have been consolidated.
Finally, the federal Equal Employment Opportunity Commission (EEOC) currently states discrimination because of sexual orientation and gender identity is actionable under the federal Human Rights Act. Although there is no specific federal law that supports this assertion, the EEOC has taken a position that sexual orientation and gender identity are included in the federal protections. For this reason, recourse may already exist under the federal law. The aforementioned cases before the U.S. Supreme Court may help clarify this federal policy.
AIM President/CEO Ray McCarty said, “AIM has encouraged companies to establish policies that prohibit all discrimination, including sexual orientation and gender identity, and we believe that is working as more and more companies adopt those policies. But policies are different than statutes. We oppose enacting legislation that creates a new protected class, particularly for these classes that are not determined objectively, but based on a person’s feelings, interactions with others, and internal sense of being male, female, or something else.”
Click here for a St. Louis Post Dispatch article on the hearing.