Update on the EEOC and the Prohibition of Sexual Orientation and Gender Identity Discrimination

Laura Gerdes Long

By Laura Gerdes Long

In an article in the inaugural issue of DMPC’s Employment News You Can Use, EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited, we discussed the state of the current contradictory precedent out of the Missouri Courts of Appeals.

As of the date of this post, the uncertainty of whether employment decisions based on sexual orientation are prohibited remains; however, limited movement was made by the Western District’s Court of Appeals when it reversed a summary judgment ruling in Lampley v. Missouri Commission on Human Rights.

Harold Lampley alleged his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division, discriminated against him based on sex because his behavior and appearance contradicted the stereotypes of males held by his employer and managers. Lampley argued that because he did not conform to the stereotype of males, his employer treated him differently from other employees who conformed with gender stereotypes. Lampley postured his sex discrimination case as supported by evidence of sex stereotyping. It is important to note that Lampley brought his lawsuit against his employer for sex discrimination, not discrimination based on sexual orientation.

When the EEOC investigated Lampley’s claim, the Missouri Commission on Human Rights (“MCHR”) terminated its proceedings stating it lacked jurisdiction over the claim because it was based on sexual orientation.

The Western District reversed summary judgment finding that sex stereotyping may provide evidence of sex discrimination and that Lampley should have been allowed to demonstrate how sex stereotyping motivated the alleged discriminatory conduct.  The Court acknowledged, “Missouri courts have not formally pronounced that sexual stereotyping falls within the intended scope of the MHRA, our existing case law provides framework that readily accommodates a sex stereotyping theory. More specifically, we conclude that sex stereotyping can satisfy the fourth element of a prima facie sex discrimination case.” The Court reasoned that the prohibition against sex discrimination extends to all employees, regardless of gender identity or sexual orientation.

Earlier this year, Lampley was transferred to the Missouri Supreme Court. If the Court declines to affirm the trial court, then a full trial on the merits may proceed – and potentially new guidance on Missouri’s prohibition against discrimination based on sexual orientation may result. Until such time, employers should recall that local governments within Missouri have enacted legislation prohibiting discrimination based on a person’s sexual orientation and gender identity.

Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities.


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