In October, attorneys for St. Louis County fighting a discrimination case filed by a gay police sergeant made the argument that a judge should rule against him because Missouri law doesn’t include sexual orientation as a protected class.
The legal maneuver prompted an angry response from County Executive Sam Page, who said he was “horrified and surprised that argument was used, and I don’t want to see it used again.”
But outside attorneys hired by the county made that exact argument in a court filing this week.
“The County Executive and the County Counselor have openly and publicly stated their disdain for the state of Missouri law on sexual orientation discrimination,” and believe the law should be changed to protect the LGBTQ community, attorney Neil S. Perryman wrote. “But they are also fiduciaries, responsible to the taxpayers, and must respect the current state of the law, no matter how much they are disappointed by its failure to protect all groups deserving of protection.”
A jury in late October found that the county police department had refused to promote Keith Wildhaber because he is gay, and then retaliated against him when he complained. It ordered the county to pay nearly $20 million in damages.
On Tuesday, Page explained the county’s latest filing.
"I co-sponsored the Missouri Non-Discrimination Act bill in 2006 when I was in the state Legislature. Sadly, it did not pass then and is still not law today,” Page said in a statement. “I would not have authorized an appeal of the crippling monetary award without also pursuing a settlement or without making major changes to the leadership of the department and the training of its officers."
The county council is scheduled to vote Tuesday on two of Page’s nominees to the Board of Police Commissioners. Two more have already been approved and are currently serving.
Monday’s court filing is what’s known as a judgment notwithstanding verdict, which asks a judge to overrule the jury because there were fatal flaws in the way it reached its decision. Among the flaws, the county argues, is the entire basis of the verdict.
Because Missouri law does not include sexual orientation as a protected class, Wildhaber filed his suit as a case of sex discrimination — basically, that he was treated differently because he did not act stereotypically male. But the county’s attorneys argue that it turned into a case about sexual orientation.
"In the end, a Jury of County residents was permitted to adjudge an un-pleaded claim that Plaintiff knows does not exist under the MHRA [Missouri Human Rights Act],” Perryman wrote. “Had Plaintiff pleaded the claim he tried — sexual orientation discrimination, this litigation would have proceeded very differently."
The filing cites numerous other missteps during trial, such as instructions that improperly expanded what the jury was allowed to consider in deliberations. In addition to asking the judge to throw out the case completely, county attorneys also ask him to significantly reduce the amount it will have to pay.
Attorneys for Wildhaber will have a chance to respond to the county’s filing. They are not commenting because the litigation is ongoing. Settlement negotiations with a court-appointed mediator are continuing.
Steph Perkins, the executive director of the LGBTQ advocacy group PROMO, called the legal argument “disheartening.”
"We are disappointed that St. Louis County is once again arguing in favor of allowing discrimination simply because someone is gay,” he said. “Leadership in St. Louis County have long fought to affirm and support the LGBTQ people who live and work in St. Louis County. No one should live in fear of losing their job or be denied opportunities simply because they are gay or transgender."
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