Wielding the Constitutional Sword: Lampley's Expansion on Evidencing Sexual Discrimination.

• Date: 01 January 2019
• Author: Rose, Jane

Lampley v. Mo. Comm'n on Human Rights, No. SC 96828, 2019 WL 925557 (Mo. Feb. 26, 2019) (en banc)

1. INTRODUCTION

   "The constitutional sword necessarily has two edges: Fair and equal treatment for women means fair and equal treatment for members of [all genders]."--Ruth Bader Ginsburg, 1972 (1)

   In 2013, fourth-wave feminism (2) crashed through the United States and pushed for the political, social, and economic equality of all genders. (3) As it has moved predominately through social media, it focuses on intersectional identities (4) that create social inequalities. (5) Promoting intersectional identities is not a novel movement, but this is the first time it has been at the forefront of the feminist movement. In the last decade, the United States legal system has made strides towards equality for the LGBTQ+ community, as gender and intersectional issues have been advanced through repeals of problematic policies and judicial interpretation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Since 2010, "Don't Ask, Don't Tell" was repealed, (6) the Defense of Marriage Act was struck down, (7) the ban on same-sex marriage was deemed unconstitutional, (8) and the U.S. Courts of Appeal for the Second (9) and Seventh Circuits held Title VII prohibits workplace discrimination against LGBTQ+ employees. (10) Further, a number of states have passed legislation expressly forbidding discrimination on the basis of gender identity or sexual orientation. (11) As of 2017, several states have legally expanded their definition of gender by passing laws to recognize genders outside of the binary spectrum on birth certificates and driver's licenses. (12) This progression has come with backlash. (13)

   Missouri has not been noticeably affected by the push for social reform, as evidenced by its repeated failure to adopt sexual orientation or gender identity as protected characteristics within the Missouri Human Rights Act ("MHRA"). (14) In 2015, the Missouri Court of Appeals for the Western District interpreted the MHRA not to include sexual orientation (15) and, in 2017, interpreted the MHRA not to include gender identity. (16) However, in early 2019, the Missouri Supreme Court, in reviewing a motion for summary judgment decision in Lampley v. Missouri Commission on Human Rights, (17) held sexual discrimination may be evidenced by sex stereotyping. (18) This decision may be the key to protecting gender identities and potentially even sexual orientation in Missouri.

   The Lampley holding encourages Missouri to create more gender-inclusive workplaces by prohibiting discrimination against individuals for not conforming to expected gender roles and moving towards erasing the distinct expectations and boundaries between genders. By doing this, Missouri takes a step towards gender equality through gender inclusivity: There cannot be equality for one gender without advancing equality for all genders. Sex stereotyping may be an indirect way to shield discrimination in the absence of expressly prohibiting discrimination against gender identity and sexual orientation.

   Part II of this Note begins by analyzing the surrounding circumstances in which the Missouri Supreme Court's landmark holding in Lampley v. Missouri Commission on Human Rights occurred. Next, this Note explains the relevant state and federal legal background to the court's decision in Part III before examining its reasoning in Part IV. This Note discusses the potential outcomes of recognizing sex stereotyping as a manifestation of sexual discrimination in Missouri, including the effect such recognition would have on the LGBTQ+ community, in Part V and concludes in Part VI.

2. FACTS AND HOLDING

   Harold Lampley ("Lampley"), an employee of the Missouri Department of Social Services Child Support Enforcement Division, fded two complaints with the Missouri Commission on Human Rights ("MCHR")--and with the Equal Employment Opportunity Commission ("EEOC") per their work share agreement (19)--against his employer in 2014. (20) Lampley alleged he was discriminated against on the basis of his sex (21) and that his employer violated sections 213.055(1) (22) and 213.070(2) (23) of the MHRA. (24) Lampley's employer allegedly discriminated against him because Lampley's comportment and appearance did not coincide with his manager's and employer's views of stereotypical masculinity. (25) Originally Lampley's complaint provided no specific discriminatory conduct, but he later amended his charge. (26) Further, Lampley alleged retaliation because his employer severely underscored him on a performance evaluation after he fded his complaint. (27) Months later, Rene Frost ("Frost"), a co-worker of Lampley, fded discrimination charges against her employer under section 213.070(4), (28) alleging her employer retaliated against her because of her close relationship with Lampley. (29)

   After an examination of the complaint, the MCHR ended its investigation into Lampley and Frost's claims. (30) The MCHR refused to proceed further with an investigation because it believed the discrimination alleged was based on sexual orientation--not on the basis of sex--over which it docs not have jurisdiction. (31) Lampley's petition insisted the discrimination was based on his sex and not his sexual orientation. (32) Lampley fded his claim explicitly for discrimination on the basis of sex--a fact the court ignored. (33) The MCHR also closed Frost's investigation because discrimination and retaliation against an employee due to her association with someone who is in the LGBTQ+ community is not prohibited by the MHRA. (34) Lampley and Frost both petitioned the court for an administrative review of the termination of the investigations and, alternatively, a mandamus for a right-to-sue letter. (35) The Honorable Patricia S. Joyce of the Circuit Court of Cole County presided over the petitions. (36) It was at this point Lampley and Frost's claims were consolidated. (37) The MCHR and Lampley fded cross-motions for summary judgment. (38)

   Lampley and Frost insisted their claims were valid sexual discrimination claims under a sex stereotyping theory. (39) Specifically, the employer's stereotypical perceptions led Lampley's employer to interact with and treat him differently than it would treat other employees who fit inside its stereotypical norms. (40) Lampley did not cite any specific conduct in the summary judgment appeal nor in his appellate brief that illustrated his or the employer's behavior. (41) Lampley acknowledged Missouri had not yet recognized sex stereotyping as a viable manifestation of sex discrimination but insisted Missouri should look to the federal system because the MHRA and Title VII have nearly identical language and the United States Supreme Court has found sex stereotyping as a valid basis for sex discrimination claims. (42)

   The MCHR countered that the United States Supreme Court had never supported the assertion of sex stereotyping as evidence of sex-based discrimination, and it remained a minority view amongst federal courts. (43) The MCHR also argued the MHRA "is not merely a reiteration of Title VII" but rather is distinctly situated. (44) The MCHR concluded sex stereotyping would be used as a way to "bootstrap" sexual orientation claims into the MHRA's protection and explained it contradicts Missouri's legislative intent, as the MHRA is clear and unambiguous as to what it prohibits. (45)

   The trial court ruled in favor of the MCHR and found the complaint alleged discrimination on the basis of sexual orientation, which is not prohibited under Missouri law. (46) However, on appeal, the Western District found Lamp-ley's sexual orientation coincidental to the claim--not the basis of the discrimination--because nothing in his complaint suggested the complaint was for discrimination against Lampley on the basis of his sexual orientation. (47) Ultimately, it held sex stereotyping is a valid theory of sexual discrimination that can satisfy the fourth element of prima facie sex discrimination under Missouri law. (48) The court overturned the grant of summary judgment, remanded the case, and directed the trial court to issue right-to-sue letters. (49)

   Around six months after the Western District's opinion was released, the Missouri Supreme Court granted MCHR's motion for transfer. (50) Oral arguments commenced on April 25, 2018, but it was not until almost one year later that the Missouri Supreme Court handed down its opinion. (51) Ultimately, the Missouri Supreme Court reached the same conclusion as the Western District--reversing, remanding, and instructing the trial court that Lampley and Frost should be issued right-to-sue letters--but the court did not do so unified. (52) Four opinions were filed: a principal, a concurrence, a partial concurrence and partial dissent, and a dissent. (53) The principal reached the same conclusion as the Western District: Sex stereotyping may satisfy the fourth element of a prima facie case of sex discrimination. (54) However, the concurrence did not believe the analysis should reach that question because the ultimate facts were already sufficient to satisfy a sex discrimination claim. (55)

3. LEGAL BACKGROUND

   Sex stereotyping is not a new theory in discrimination law, although it is a fresh concept in Missouri precedent. Before discussing the history of sex discrimination and Lampley's effect, it is important to establish relevant LGBTQ+ terminology to help frame the following discussion. This terminology framework is found in Section A. To better understand future effects of Lampley, Section B traces the history of sex-based discrimination, including the MHRA's sex-based discrimination elements and manifestations, and then analyzes federal precedent of sex stereotyping. The Note then shifts towards an LGBTQ+ focus by analyzing current protections for the LGBTQ+ community against discrimination in Section C, focusing on protections at both the federal and...