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Missouri Supreme Court Revives Sex Discrimination Law Suits by Gay and Transgender Plaintiffs

Posted on: March 2nd, 2019 by Art Leonard No Comments

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.

Missouri Supreme Court Rejects Benefit Claim from Surviving Partner of Highway Patrolman

Posted on: October 30th, 2013 by Art Leonard No Comments

Missouri law provides that the surviving spouse of a public employee who is killed in the line of duty be entitled to a death benefit equal to half of the deceased employee’s final average compensation.   The statute, adopted in 1969, did not define “spouse,” but was supplemented in 2004 with a definition of “spouse” in accord with the newly-enacted state constitutional amendment banning same-sex marriage.

When a Missouri state highway patrolman, Corporal Dennis Engelhard, was killed in the line of duty on Christmas Day, 2009, his surviving same-sex partner, Kelly Glossip, applied for the death benefit, but was turned down on the ground that he was not married to Engelhard.  Of course, he could not be married to Engelhard in Missouri, where a constitutional amendment and a statute provide that same-sex marriages are neither valid nor recognized in the state.  On October 29, the Missouri Supreme Court, voting 5-2, rejected Glossip’s claim that denial of the benefit violated his right to equal protection of the law in Glossip v. Missouri Department of Transportation, 2013 Westlaw 5799911.  The court noted several times in its opinion that Glossip was not directly challenging the anti-gay marriage amendment or statute, and was not arguing that the state’s definition of “spouse” was unconstitutional.  His argument was that requiring a person to be a legal spouse in order to qualify for the benefit was itself a form of unconstitutional sexual orientation discrimination.

The majority of the court, issuing an unsigned per curiam opinion, said that this was not a sexual orientation discrimination case.  The court pointed out that neither the sex nor sexual orientation of the surviving partner of a law enforcement officer was directly relevant under the benefits provision.  The only relevant fact, according to the court, was whether at the time the officer died he was married to the benefits claimant.  An unmarried partner of either sex would be equally disqualified from receiving the benefit, regardless of their sexual orientation.  Having reached this conclusion, the court treated this as a case of differential treatment because of marital status, a ground whose legitimacy as a basis for government policy has rarely been successfully challenged.

Finding that a marital status distinction is entitled to a presumption of constitutionality and will only be invalidated if the legislature could have had no rational basis for imposing such a distinction, the court identified several possible justifications for limiting the survivor’s benefit to legal spouses.  “Here, the General Assembly reasonably concluded that limiting survivor benefits to spouses would serve the death benefit’s intended purpose as well as the interests of administrative efficiency and controlling costs,” wrote the court.  “Providing survivor benefits to persons who are economically dependent on a deceased state employee is a legitimate state interest, and the General Assembly could have reasonably concluded that the spousal requirement would serve that purpose.”   In a “rational basis” review case, there does not have to be an exact fit between the purpose and the mechanism adopted by the state to achieve it.  “It may be true,” the court commented, “that there are spouses of highway patrol employees who are not economically dependent on the employee and that there are non-spouses who are economically dependent on the employee.  Rational basis review, however, does not require that the fit between the classification and government interest be exact, but merely ‘reasonable,’ and this Court will not substitute its judgment for that of the legislature as to the wisdom, social desirability or economic policy underlying a statute.”

The court pointed out that it was administratively efficient to condition the benefit on the survivor presenting proof of marriage, making unnecessary any sort of case-by-case factual inquiry into whether a non-marital claimant was actually dependent on the employee.  The legislators “could have reasonably anticipated that expanding survivor benefits beyond surviving spouses and surviving children could create a risk of competing claims and subjective eligibility determinations and that such claims would increase the time and cost necessary to resolve benefits claims.”

The court rejected Glossip’s argument that the “spousal requirement must fail even rational basis scrutiny because the statute was motivated by a desire to harm gays and lesbians,” pointing out that the statute was enacted in 1969, long before Missouri had adopted its statute and constitutional amendment banning same-sex marriage, at a time when no claim for a right to same-sex marriage had ever been made in the state.  The court pointedly quoted from U.S. Supreme Court Justice Anthony Kennedy’s statement in this year’s ruling in U.S. v. Windsor that “it seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization,” to further make the point that it was unlikely that the 1969 Missouri legislature had a specific intent to harm gay people by adopting this provision.

The court also rejected Glossip’s argument that the survivor benefits statute was a prohibited “special law,” under a provision of the state constitution that prohibits the legislature from enacting “special laws” when a general law can be made applicable to a particular situation.  A general law providing survivors benefits to dependents could cover this situation, argued Glossip, so limiting the benefit to surviving spouses was a forbidden instance of special legislation.

The court suggested the possibility that the outcome of this case could have been different had Glossip decided to take on directly the constitutionality of Missouri’s marriage amendment and statutory same-sex marriage ban, or if he and Engelhard had married out of state and he was now arguing that their marriage should be recognized by Missouri for this purpose.  Without hinting at how such claims might be decided, the court indicated that they would have squarely raised the issue of sexual orientation discrimination.

As to that, the court pointed out that Missouri precedents dictate applying the U.S. Supreme Court’s equal protection analysis under the 14th Amendment to any equal protection issue raised under the parallel provision of the Missouri Constitution, which would require the court to treat U.S. v. Windsor as a controlling precedent.  “The United States Supreme Court left open the question of what level of scrutiny should apply to sexual orientation discrimination in Windsor,” said the court.  “There, as in Lawrence v. Texas, it took a tangential approach to the constitutionality of the challenged statute and held that the statute failed even the most deferential level of scrutiny.  Neither of these cases identified what level of scrutiny applies to cases alleging discrimination based on sexual orientation.  This Court also need not reach that issue here because the survivor benefits statute does not discriminate on the basis of sexual orientation, and Glossip has elected not to challenge Missouri’s statutory and constitutional proscription against same-sex marriage.”

Writing for himself and Justice Draper, Justice Richard B. Teitelman dissented, arguing that the court had mischaracterized this case.  “For decades,” he wrote, “indeed centuries, gay men and lesbians have been subjected to persistent, unyielding discrimination, both socially and legally.  That shameful history continues to this day.  The statutes at issue in this case, sections 104.140.3 and 104.012, RSMo Supp. 2001, bear witness to that history and help ensure that this unfortunate past remains a prologue to the continued state-sanctioned marginalization of our fellow citizens.  The plain meaning and intended application [of these statutes] is to specifically discriminate against gay men and lesbians by categorically denying them crucial state benefits when their partner dies in the line of duty.  This type of intentional, invidious and specifically targeted discrimination is fundamentally inconsistent with the constitutional guarantee of equal protection of the law.”

Teitelman criticized the court’s holding as overlooking “the fact that section 104.140.3 employs a definition of ‘spouse’ that operates to the unique disadvantage of gay men and lesbians, even when, like Corporal Engelhard, they devote their lives to the defense of the same rule of law that relegates them to the status of second class citizens.”

Taking on the majority’s conclusion that this is merely a marital status discrimination case, Teitelman criticized the majority’s failure to consider the context and effect of its ruling.  “By tying the payment of survivor benefits to a definition of ‘spouse’ that renders access to those benefits legally impossible to obtain only for gays and lesbians, the purported marital distinction is also necessarily a distinction based on sexual orientation,” he asserted.  “At some point, equal protection analysis requires an assessment of the practical reality of the case.  In this case, the reality is that Mr. Glossip’s sexual orientation made it legally impossible for him to obtain survivor benefits.”  Thus, the challenged statutes “turn the legal status of marriage into a proxy for discrimination on the basis of sexual orientation.”

Furthermore, he wrote, “The fact that the State does not recognize same sex marriages does not mean that gays and lesbians are deprived of their other fundamental individual constitutional rights.  Nothing in the short, simple text of article I, section 33 [the state’s marriage amendment] in any way overrides the separate constitutional guarantee of equal protection by justifying other forms of discrimination on the basis of sexual orientation.”   Teitelman went on to argue that this should be a heightened scrutiny case in light of the “historic patterns of disadvantage” suffered by gay people at the hands of the state, and that the statutes would not withstand such heightened scrutiny. He found it “implausible” to argue that limiting benefits to legal spouses “will ensure that benefits are payable only to those who are most financially dependent on the deceased trooper.”  He pointed out that the state had conceded that Engelhard and Glossip were financially interdependent.  “Marriage simply cannot be a proxy for financial interdependence,” he insisted, “when only gays and lesbians – a relatively small, readily identifiable and historically marginalized group – are categorically excluded from being legally married.”

Because the decision was grounded by the majority of the court in its interpretation of the state constitution, further review by the U.S. Supreme Court appears unlikely, although, in light of U.S. v. Windsor, Glossip could mount a plausible argument that the denial of benefits violates his right to equal protection under the 14th Amendment.  Since the Missouri Supreme Court construes the state’s equal protection clause to be coextensive with the federal equal protection clause, one might treat this as a ruling under both provisions, raising a potential federal constitutional question.   Were the Supreme Court inclined to take on a new gay equal protection case so soon after Windsor, this could provide a vehicle for doing so outside of a direct challenge to a state’s decision to exclude same-sex couples from marriage.

Glossip is represented by a large team of Missouri lawyers together with staff and cooperating attorneys from the ACLU and Lambda Legal.  The court received amicus briefs from a group of Missouri law professors, from a group of elected Missouri officials, and from The Law Enforcement Gays and Lesbians (LEGAL) International (whose brief was written by attorneys from the Chicago office of Lambda Legal).