EDITOR'S NOTE; This story was corrected at 4:30 p.m. Wednesday, 10/25, to show that the Child Support Enforcement Division is a part of Missouri's Social Services Department.
Two state employees must be given the right to sue the Child Support Enforcement Division for employment discrimination, a three-judge appeals court panel ruled Tuesday.
The ACLU of Missouri had submitted a "friend of the court" brief supporting the two employees, and said in a news release Tuesday afternoon it was pleased with the ruling.
"This decision recognizes for the first time that Missouri law prohibits employment discrimination on the basis of an employee's failure to conform to sex-based stereotypes," Tony Rothert, the ACLU-Missouri's legal director, said.
"This decision brings Missouri in line with federal employment law and the legal protections offered in most states."
The Missouri attorney general's office didn't comment on the decision.
Harold Lampley, of West Plains, filed sex discrimination charges in 2014 with the state Human Rights Commission and with the federal Equal Employment Opportunity Commission.
In a 10-page ruling written by Judge Anthony Rex Gabbert, the Kansas City-based appeals court panel noted Lampley, who is gay, alleged the division, which is part of the state Social Services Department, "discriminated against him based on sex, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers."
Lampley argued those stereotypes "motivated his employer to harass him and treat him differently from similarly situated employees who conformed to gender stereotypes."
In a separate complaint, Rene Frost, of Cabool — described as Lampley's "close friend and co-worker" in the appeals court's ruling — alleged retaliation based on her association with Lampley.
While the EEOC still was investigating the two cases, the Human Rights Commission ended the proceedings, Gabbert wrote, "stating it lacked jurisdiction over claims based on sexual orientation."
Lampley and Frost each asked the circuit court to review the commission's decision or order it to issue right-to-sue letters so the two employees could sue the state for the alleged discrimination.
Joyce consolidated the cases into one and ruled for the commission with a summary judgment, meaning she found no legal facts that could be argued before the court.
State law prohibits discrimination on the basis of sex but doesn't cover discrimination for sexual orientation, and the commission argued in court it doesn't have authority over sexual orientation complaints.
However, the appeals court ruled, even though Lampley acknowledged he's a gay man, he and Frost argued in all of their legal papers that the discrimination was based on Lampley's gender, not his orientation.
"Because evidence of sex stereotyping can support a reasonable inference of sex discrimination, we conclude there remain genuine issues of material fact precluding summary judgment," Gabbert wrote.
The ruling also noted the commission "did not address Appellants' theory of sex discrimination evidenced by sex stereotyping."
In a detailed analysis citing several previous state and federal cases, Gabbert wrote "sex stereotyping as a theory of sex discrimination was first articulated in" a 1989 U.S. Supreme Court ruling involving the Price Waterhouse company.
In that case, "a female senior manager in an accounting firm was denied partnership in the firm, because partners considered her insufficiently feminine," Gabbert wrote, and the high court said "an adverse employment action motivated by such stereotyping was actionable sex discrimination" under federal law.
Although Missouri courts haven't ruled before on the sex orientation issue, the appeals court said, "even the (commission's) own employment regulations identify sex-based stereotyping as a prohibited employment practice. If the (commission) already considers stereotyping a discriminatory hiring practice, it follows that stereotyping can also evidence discriminatory conduct during the course of employment."
The appeals court disagreed with the commission's argument that "a sex stereotyping analysis transforms sexual orientation into a suspect class," ruling "sexual orientation is incidental and irrelevant to sex stereotyping."
Because state law requires an investigation into an employment discrimination complaint to be finished within 180 days — and that deadline passed in 2015 — Gabbert wrote: "The appropriate remedy in light of our ruling is for the (commission) to issue right-to-sue notices."
Lampley and Frost then could sue the state for discrimination, present their arguments and evidence supporting that allegation, and have a judge or jury determine whether the discrimination actually occurred.