What's missing? Addressing the inadequate LGBT protections in the Missouri Human Rights Act.

• Author: Henrion, Ellen
• Position: NOTE

1. INTRODUCTION

   Most Missourians can move into homes with their partners, put up pictures of their spouses at their workplace desks, or book a hotel room for an overnight stay with a carefree confidence that these actions will not result in harassment or discriminatory repercussions. Unfortunately, this is not true for all of the state's residents. Approximately 160,000 adults in Missouri identify as lesbian, gay, bisexual, and/or transgender ("LGBT"). (1) Accordingly, approximately 160,000 adults in Missouri are particularly vulnerable to workplace, housing, and public accommodations discrimination as the Missouri Human Rights Act ("MHRA"), Missouri's general anti-discrimination statute, does not explicitly prohibit discrimination based on sexual orientation or gender identity. (2) In 2015, the Missouri Court of Appeals, Western District, held in Pittman v. Cook Paper Recycling Corp. that the MHRA's prohibition on sex-based discrimination does not extend to prohibit sexual orientation-based discrimination. (3) Though many of Missouri's businesses--including some of its largest, such as Ameren, Express Scripts, and Monsanto (4)--have workplace policies that prohibit discrimination based on sexual orientation or gender identity, (5) these protections are insufficient to truly protect Missourians from discrimination. Internal policies do not provide the threat of legal repercussions upon discrimination and, accordingly, may not have the deterrent effect of a law. Furthermore, employment anti-discrimination policies do nothing to protect LGBT Missourians from housing or public accommodations discrimination. Missouri's anti-discrimination law is simply inadequate or, at the very least, incomplete.

   Though great strides in LGBT rights have been made in the United States over the last decades, (6) including the 2015 victory in Obergefell v. Hodges, (7) the Missouri General Assembly remains hesitant to expand antidiscrimination protections to all of its constituents. (8) Missouri's refusal to codify anti-discrimination protections for its LGBT citizens ensures that Missouri will remain playing catch-up to nationwide progress. This Note argues that it is time for Missouri to fully protect its citizens from discrimination. Missouri must amend the MHRA to prohibit discrimination based on sexual orientation and gender identity.

2. FACTS AND HOLDING

   James Pittman, a gay man, worked as a controller at Cook Paper Recycling Corporation from April 2004 until December 2011. (9) Throughout Pittman's employment, Cook Paper's President, Joe Jurden, allegedly directed many homophobic remarks towards Pittman. (10) Pittman claimed that Jurden had inquired whether he had AIDS, among other discriminatory comments. (11) Further, Pittman claimed that when he ended a romantic relationship, he was treated "more harshly than a male [coworker] who was getting a divorce from his female wife." (12) Pittman was terminated by Cook Paper in December 2011. (13) Thereafter, Pittman sued his former employer, alleging that his sexual orientation was a "contributing factor in the decision of [Cook Paper] to terminate his employment" (14) in violation of the MHRA's prohibition on sex discrimination. (15) Cook Paper filed a motion to dismiss for failure to state a claim. (16)

   The trial court granted Cook Paper's motion and dismissed Pittman's petition for failure to state a claim. (17) The court determined that Pittman had merely alleged discrimination on the basis of his sexual orientation rather than his sex. (18) Because they found no allegation of sex-based discrimination, the court found no cognizable claim under the MHRA. (19) The court further declined to "create [a] new cause[] of action" by recognizing a claim of "sexual stereotyping." (20)

   On appeal, Pittman argued that, by alleging that he was harassed and terminated on account of his sexual orientation, he had sufficiently stated a claim for sex discrimination under the MHRA. (21) In this case of first impression, the Missouri Court of Appeals, Western District, disagreed, affirming the trial court's judgment dismissing the petition. (22) Finding the statute's plain language "clear and unambiguous," (23) the court held that the MHRA's prohibition on sex-based discrimination does not extend beyond discrimination based on gender. (24) The Western District also looked to legislative intent and reasoned that if the Missouri legislature had wanted to designate sexual orientation as a protected status under the MHRA, it could have easily done so explicitly. (25) Missouri law, the court concluded, does not prohibit discrimination based upon sexual orientation. (26)

3. LEGAL BACKGROUND

   Part A focuses on state law anti-discrimination protections in Missouri and neighboring states, discussing the MHRA and providing an overview of state law protections (or lack thereof) for LGBT individuals. Part B similarly surveys comparative federal law and the extent of its protections for individuals from sexual orientation-based discrimination.

   1. State Protections

      1. The Missouri Human Rights Act

         State law claims of discrimination of any kind are brought under the MHRA, which was originally codified in 1959. (27) At its inception, the discrimination protections the MHRA provided were limited, (28) prohibiting only "unfair treatment based on race or national ancestry." (29) Two decades later, the Act was amended to afford individuals much more expansive protections. (30) In its current state, the MHRA protects Missourians from housing discrimination, (31) employment discrimination, (32) and discrimination in public accommodations (33) on the basis of race, color, religion, national origin, sex, ancestry, or disability. (34) Sexual orientation is not currently an explicitly protected status under the MHRA. (35)

         Because the MHRA does not protect an individual from being fired, denied housing, or denied access to places of public accommodation due to his or her sexual orientation, many attempts have been made to solidify such protections into Missouri law. As of 2013, eighteen municipalities had ordinances prohibiting discrimination based on sexual orientation and/or gender identity. (36) However, these eighteen localities account for only 27% of the state's workforce, and none of these municipalities exist outside the Columbia, Kansas City, or St. Louis areas, leaving those in the state's rural areas unprotected. (37) As such, attempts are continually being made to expand protections to all LGBT Missourians. In 2010, then-Governor Jay Nixon issued an executive order banning orientation-based discrimination in Missouri state government. (38) Further, legislators yearly propose legislation attempting to expand such prohibitions to all workers across the state. (39) The most significant piece of legislation proposed to further that goal has been the Missouri Nondiscrimination Act ("MONA").

         MONA was first introduced in 1998 (40) and has been reintroduced numerous times over the past several years. (41) The proposed legislation would amend the MHRA to include both sexual orientation and gender identity as protected statuses. (42) In 2013, the Missouri Senate passed this legislation with bipartisan support; ten Senate Democrats voted in favor of the bill, while nine of twenty-three Senate Republicans did the same. (43) The bill died in the Missouri House, though, when the House refused to take it up for a vote. (44) Respective House (45) and Senate (46) bills proposing identical additions to the MHRA were introduced in 2016, as was a separate House bill that would revise the Missouri Commission on Human Rights's ("MCHR") complaint process to allow employees to file grievances over discrimination based on sexual orientation or gender identity. (47) None of this legislation passed. (48)

         These anti-discrimination protections provided by MONA have support from both Democrats and Republicans, (49) and former Governor Jay Nixon encouraged the passage of MONA in his final State of the State address. (50) Further, hundreds of Missouri-based companies, such as Monsanto and Sprint, have publicly supported MONA. (51) Until the passage of such an amendment, however, Missouri plaintiffs alleging discrimination based on sexual orientation will continue to be unsuccessful in Missouri courts. (52)

      2. Other States' Protections

         Missouri's failure to protect its residents from sexual orientation-based discrimination is unfortunately not an outlier. Twenty-seven other states join Missouri in having no statewide employment non-discrimination laws covering sexual orientation. (53) Two of Missouri's neighboring states, Illinois and Kansas, epitomize the country's divergence regarding sexual orientation-based employment protections.

         Illinois has been protecting its workers from workplace discrimination based on sexual orientation for over a decade. In 2005, the state legislature amended the Illinois Human Rights Act ("IHRA") to prohibit discrimination based upon an individual's sexual orientation. (54) "Sexual orientation" is defined in the IHRA as "actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth." (55) By defining sexual orientation to include gender identity as well, the law protects transgender individuals even though gender identity is not explicitly listed as a prohibited basis for discrimination. (56)

         Kansas, meanwhile, has effectively spent the last few years making its residents more vulnerable to the threat of workplace discrimination. In 2015, Governor Sam Brownback issued an executive order that removed existing protections for gay, lesbian, and transgender state employees. (57) The order repealed a 2007 executive order by then-Governor Kathleen Sebelius, which had put in place prohibitions against employment discrimination based on sexual preference and gender identity. (58) Governor Brownback...