Just this week, House Republicans blocked an attempt by Rep. Jared Polis (D-CO) to advance the Equality Act, which would create nationwide LGBT nondiscrimination protections. A Missouri appeals court decision this week demonstrates exactly why such legislation is necessary.
In a 2–1 decision Tuesday, the Western District Missouri Court of Appeals ruled against James Pittman, who had sued Cook Paper Recycling Corp. for discriminating against him for being gay. Though the direct harassment and overall hostile environment was well documented in the case, the court could offer Pittman no relief. “Because the Missouri Human Rights Act does not prohibit discrimination on the basis of sexual orientation,” the majority wrote, “we affirm the circuit court’s judgment dismissing Pittman’s petition for failure to state a claim.”
While working for Cook Paper, Pittman was told that he was a “cocksucker” and subjected to other comments of a sexual nature. He was asked if he had AIDS. He was harassed for having a same-sex partner, and was mocked when that relationship ended. The workplace was, as Pittman described it, “an objectively hostile and abusive environment.” Cook Paper ultimately fired him.
Pitt argued that because the MHRA does protect “sex,” he should find relief because he was discriminated against for violating gender stereotypes by being gay. Judge James Edward Welsh disagreed — by citing the dictionary:
The plain language of the Missouri Human Rights Act is clear and unambiguous. Employers cannot discriminate against employees on the basis of their “sex.” The clear meaning prohibiting discrimination based upon “sex” under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person’s gender and has nothing to do with sexual orientation. Indeed, the first definition of “sex” provided by Webster’s Third New International Dictionary is “one of the two divisions of human beings respectively designated male or female.”
In a separate opinion, Judge Robert M. Clayton wrote, “I respectfully and reluctantly concur in the opinion of Judge Welsh with respect to the result only.”
Judge Anthony Rex Gabbert dissented, pointing out that there were other definitions of “sex.” Citing the same dictionary, he highlighted definitions 2, 3, and 4:
(2) the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction; (3) the sphere of interpersonal behavior especially between male and female most directly associated with, leading up to, substituting for, or resulting from genital union; and (4) the phenomena of sexual instincts and their manifestations.
Though all three could easily encapsulate sexual orientation, this did not persuade the majority. “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,” Welsh wrote. “Without the legislative addition of ‘sexual orientation’ to the statutory list of protected statuses, the Missouri Human Rights Act does not prohibit discrimination based upon a person’s sexual orientation.”
Missouri is not alone; there are 28 states that offer no state-level employment protections based on “sexual orientation.” The Movement Advancement Project (MAP), which tracks LGBT legislation, released a new report this week confirming that only half of LGBT people in the U.S. live somewhere that offers them employment protections at the municipal or state level.
MAP Executive Director Ineke Mushovic told ThinkProgress that it’s “shocking that a worker can be fired solely because he is gay, that the court does not dispute these facts, but that the court still finds in favor of the employer due to lack of nondiscrimination protections under state law.”
She pointed out that even though the Equal Employment Opportunity Commission has determined that sexual orientation is protected under the “sex” classification in Title VII of the Civil Rights Act, that does little to help a case filed in state court. The Missouri Court made clear it was not considering Title VII, and “because this case only looked at the Missouri Human Rights Act, it is unrelated to the EEOC rulings.”
Mushovic also highlighted a 2011 study that found that one in ten lesbian, gay, and bisexual workers had reported losing a job in the last five years because of their sexual orientation. “This case is just one illustration of how discrimination is a problem,” she explained. “Pittman was fired because he is gay and the court did not deny that. Rather, they said anti-gay discrimination is not illegal under Missouri law.”
Republican majorities in Congress and many state legislatures are keeping legislation like the Equality Act from advancing, but efforts to extend LGBT nondiscrimination protections are still underway. Just last week, New York Gov. Andrew Cuomo (D) issued an executive order to protect transgender people from discrimination after such protections have been blocked by the state Senate for several years. State lawmakers in Ohio have introduced an LGBT protections bill just this week, hoping that the fifth time is the charm.
And on Tuesday, voters in Houston, Texas will consider Proposition 1, the Houston Equal Rights Ordinance (HERO). As the fourth most populated city in the U.S., HERO’s passage could make a significant dent in the number of LGBT people who remain vulnerable to legal discrimination.
Cook Paper President Joe Jurden sent ThinkProgress a statement Sunday evening disputing the allegations made in Pittman’s suit. Because the courts have dismissed the case, there has never been discovery to assess the merit of the allegations, which Jurden rejects outright. Instead, he claims it his company that has been demonized by Pittman’s accusations of discrimination:
Discrimination is a real problem in our country, and even today there are numerous instances where gay and lesbian people are treated unfairly. The case of James Pittman vs. Cook Paper Recycling Corp. is not one of these instances. In recent days, publicity about this case has resulted in hateful allegations hurled at me and Cook Paper Recycling. In some instances, threats of violence have been made against company employees, me and my family. I am disappointed that those who would seek fairness and due process for gay and lesbian people are so quick to dismiss these common courtesies when judging others. In an effort to set the record straight, here are the facts: Mr. Pittman made his sexual orientation known to us when he first interviewed for a position with our company. In his seven years of employment, he at various times was a guest in my home and the homes of other employees. Further, many employees of Cook Paper Recycling-including myself-were guests in his home. He was a member of the team no different than any other employee, and was treated with courtesy and respect. At no time was Mr. Pittman ever subjected to name-calling or derision by me or any other employee. That sort of behavior is simply not tolerated at our company and is grounds for termination. When Mr. Pittman’s employment was terminated, he chose to pursue legal action based on his sexual orientation. Defending a lawsuit is expensive, especially for a small business. It takes up time and money that could otherwise be used to run our business and create jobs and commerce. In order to expedite the matter, we cited the laws of the State of Missouri to make our case. Both the Circuit Court and the Appellate Court ruled in our favor. I realize this is an important and highly emotional issue for our society, and we believe everyone should be treated fairly. But please keep in mind fair treatment applies to me, Cook Paper Recycling and the employees of the company, too.