Gay Rights Court Deicision

JEFFERSON CITY - In a split decision, the Missouri Western District Court of Appeals held that Missouri's law prohibiting discrimination in the workplace does not cover sexual orientation.

In a 2-1 decision, the court held the law is limited to workplace discrimination based on gender because the statute does not contain the word orientation or any other reference to sexual preference.

The case was brought by a gay male, James Pittman, who alleged he faced a hostile and abusive work environment because of his sexual orientation.

He charged that his Kansas City area company, Cook Paper Recycling, failed to prevent the harassment and ultimately dismissed him in 2011 because of his sexual orientation.

He also accused the company president of a derogatory term in referring to his sexual preference.

The appeals court, however, found that the Human Rights Act of Missouri does not cover sexual orientation. The law makes it unlawful for employer to discriminate against a worker or fire a worker "because of the race, color, religion, national origin, sex, ancestry, age or disability of the individual."

In the majority opinion issued Tuesday, Oct. 27, Judge James Welsh wrote that the law "has nothing to do with sexual orientation."

Welsh wrote that the failure of the legislature to include a phrase like sexual orientation demonstrated the clear intent of the legislature to not cover sexual preferences.

"If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights protections, it could have done so. 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.

In a dissenting opinion, Judge Anthony Gabbert wrote that the the word "sex" covers more than just gender.

"Even a cursory look in a dictionary by the majority would have led them to determine that, in fact, sex does not include only gender," Gabbert wrote.

He went on to cite the language in an edition of Webster's dictionary that included "the phenomena of sexual instincts and their manifestations" in the definition of sex.

For the last several years, proposals to expand Missouri's Human Rights Act to include sexual orientation have made little progress in the state legislature.

In the last session, a measure sponsored by all nine Democrats of the Senate failed to come out of the Senate committee to which it had been assigned. A similar bill in the House also died in committee.

The House Civil and Criminal Proceedings Committee did not take a vote on the bill. The Senate bill was approved by the Senate Progress Committee, the only committee with Democrats holding a majority. However, the bill was not reported to the full Senate for debate.

The last time, and maybe only time, Missouri legislature dealt with sexual orientation was 1999 when lawmakers passed and the governor signed into law a measure to expand the state's hate-crimes law to include a crime against a person based on sexual orientation.

Two days after this fall's state appeals court decision, Attorney General Chris Koster called on the legislature to expand the state's discrimination law to include sexual orientation. His statement was issued through his campaign for the Democratic nomination for governor.