A Kansas City-area man cannot sue his former employer for discrimination because Missouri's legal definition of discrimination does not include sexual orientation; so says the state's western district appeals court.
James Pittman's lawsuit claimed that, because he is gay, he was fired from Cook Paper Recycling and was subjected to a hostile work environment. His case was dismissed by a lower court nearly two years ago, in part because sexual orientation is not included in Missouri's definition of discrimination.
This week, a three-judge panel voted 2 to 1 against Pittman, saying that the word "sex" in the state's anti-discrimination law refers to gender, and that the legislature has made it clear that it cannot be interpreted to include sexual orientation.
"If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act's protections, it could have done so," said presiding judge James Welsh. "No matter how compelling Pittman's argument may be and no matter how sympathetic this court or the trial court may be to Pittman's situation, we are bound by the state of the law as it currently exists."
Eastern District Appeals Court Judge Robert Clayton III, called in as a special judge to hear Pittman's appeal, also voted to dismiss, stating, "I respectfully and reluctantly concur in the opinion of Judge Welsh with respect to the result only."
However, Judge Anthony Gabbert issued a dissenting opinion, stating that "sex" can be interpreted to include orientation. It reads, in part:
"Not only did Pittman's petition state a claim by his reference to gender bias, but that, under the spirit of the law, allegations of discrimination based upon a person's sexual orientation (or preference) and gender stereotype also state claims as they are encompassed by the term 'sex' in the Missouri Human Rights Act. As the EEOC decision stated, 'sexual orientation is inherently a sex-based consideration' because when an employer takes a person's sexual orientation into account the employer necessarily considers a person's sex...in other words, a person's sex is always considered when taking a person's sexual orientation into account. (E.g., homosexual, heterosexual). Thus, under the spirit of the law, sexual discrimination claims based on sexual orientation are actionable claims under the Missouri Human Rights Act."
Pittman's lawyer is appealing the western appeals court ruling to the Missouri Supreme Court.
Follow Marshall Griffin on Twitter: @MarshallGReport
