By: Stephanie Speirs
Where a supervisor discriminated against a male employee, the employer acted based on his definition of how he believed a male should represent masculinity.[1] In a novel developed by a Missouri State Appeals Court, it was established that a sex bias claim could be based on instances of sex stereotyping.[2] In such circumstances, a homosexual state employee may have a valid lawsuit based on gender discrimination allegations, because his behavior and appearance were not in accordance with his managers’ “stereotypical views of manliness.”[3]
Lampley, an employee of the state of Missouri’s Office of Administration Child Support Enforcement Division filed charges of sex discrimination and retaliation charges with the U.S. Equal Employment Opportunity Commission and the Missouri Commission on Human Rights.[4] His claims stem from allegations that his employer and managers discriminated against him based on his sex, because his behavior and appearance emasculated the stereotypical view of masculinity.[5] As a result, his employer’s conflicting opinions of how Lampley ought to carry himself as a man led to Lampley’s harassment, separate treatment from the other men who were up to the manager’s or employer’s gender standards, and a revengeful poor performance evaluation in response to the complaint.[6]
Frost, a fellow friend and colleague, followed Lampley, filing suit shortly after him based on a claim that her association with him led to retaliation against her as well.[7] The Missouri Commission on Human Rights terminated both workers’ complaints, stating that it lacked jurisdiction over the claims, because they were based on sexual orientation, and the trial court decided in agreement with this reasoning.[8] However, both employees appealed the decision, arguing that the court incorrectly found that the claims were based on sexual orientation when they were actually based on sex.[9] The Missouri State Appeals Court agreed with the employees, finding that they never alleged discrimination based on an unprotected class like sexual orientation, but rather consistently stated a discrimination claim based on sex.[10]
This decision on sex stereotyping is unfamiliar in the realm of sex discrimination, and the position of a 1989 U.S. Supreme Court case played an integral role in the court’s decision.[11]
Similar to Lampley, where a female senior manager was denied partnership in an accounting firm, because the partners considered her “insufficiently feminine,” the Supreme Court held that this stereotyping was analogous to a sex discrimination claim under Title VII.[12] Although the Missouri courts did not explicitly declare that the Human Rights Act provided protections for sex stereotyping, prior case law establishes the principal basis for which the theory can be supported.[13] Among the other considerations of whether a sex stereotyping claim will be satisfied, four prongs were used, including: (1) whether they were treated differently from similarly situated members of the opposite sex, (2) whether the employee belonged to a protected class, (3) whether the employee was qualified to perform his or her job, and (4) whether the employee suffered an adverse employment action.[14]
The importance in this decision is the distinction it makes between sexual orientation claims and sex stereotyping claims, in that they are not to be treated equally.[15] If an employer finds, in his or her opinion, that an employee is insufficiently masculine or feminine not in accordance with their gender, the “lack” of masculinity or feminity is not dependent on the employee’s sexual orientation.[16] Thus, whether an employee is gay or straight is an element that must be considered separately from the reasoning and reality of discrimination based on stereotyping sex.[17]
[1] Lampley v. Mo. Comm’n on Human Rights, No. WD80288, 2017 Mo. App. LEXIS 1069, at *1-2 (Mo. Ct. App. Oct. 24, 2017).
[2] Vin Gurrieri, Stereotyping Can Support Sex Bias Claim, Mo. Court Says, Law360 (Oct. 26, 2017, 8:59 PM), https://www.law360.com/employment/articles/978722/stereotyping-can-support-sex-bias-claim-mo-court-says.
[3] Id.
[4] Lampley, 2017 Mo. App. LEXIS 1069, at *1-2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *2-3.
[11] Lampley, 2017 Mo. App. LEXIS 1069, at *5 (citing Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
[12] Id.
[13] Vin Gurrieri, Stereotyping Can Support Sex Bias Claim, Mo. Court Says, Law360 (Oct. 26, 2017, 8:59 PM), https://www.law360.com/employment/articles/978722/stereotyping-can-support-sex-bias-claim-mo-court-says.
[14] Id.
[15] Id.
[16] Id.
[17] See Lampley, 2017 Mo. App. LEXIS 1069, at *9; see also Gurrieri, supra note 2.
The L•E•Jer 