Harold Lampley and Rene Frost have a right to sue the state's Child Support Enforcement Division for employment discrimination, the state Supreme Court ruled Tuesday.
A 16-page opinion, written by Judge George W. Draper III, overturned Cole County Circuit Judge Pat Joyce's Dec. 1, 2016, finding the Missouri Human Rights Commission can't investigate sexual orientation cases, so it was right to close its search into Lampley's and Frost's complaints without issuing "right to sue" letters.
Lampley, of West Plains, filed sex discrimination charges in 2014 with the state commission and with the federal Equal Employment Opportunity Commission.
In that complaint, Lampley acknowledged he's a gay man who doesn't exhibit the "stereotypical attributes of how a male should appear and behave," Draper wrote.
Lampley alleged other similarly situated co-workers, those who were not gay and exhibited stereotypical male or female attributes, were treated differently. However, because he exhibited non-stereotypical behaviors, Lampley argued he was subjected to harassment at work.
In a separate complaint, Lampley's close friend and co-worker, Frost, of Cabool, alleged retaliation based on her association with Lampley.
The Supreme Court ruled: "The Commission had the statutory authority to investigate Lampley's and Frost's claims, but the Commission unreasonably and erroneously assumed because Lampley was homosexual, there was no possible sex discrimination claim other than one for sexual orientation.
"Lampley and Frost should have been allowed to demonstrate whether the alleged sexual stereotyping motivated Employer's alleged discriminatory conduct.
"The Commission had the authority to issue a right-to-sue letter so the trier of fact could then determine whether their claims for sex discrimination were due to sexual stereotyping."
In a separate, 12-page opinion agreeing with the decision to allow Lampley and Frost to sue - but disagreeing on some of the procedures authorized in the main opinion - Judge Paul C. Wilson wrote, in a footnote: "Because Claimants' charges allege facts sufficient to state claims under the MHRA (Missouri Human Rights Act) for sex discrimination (and discrimination due to association with someone claiming sex discrimination), the Commission (and/or its executive director) were wrong to close those charges for lack of the Commission's jurisdiction."
In a separate footnote, Wilson added: "Lampley does not allege Employer took adverse employment action against him because of his sexual orientation.
"Although Lampley alleges he is gay and does not exhibit stereotypically male attributes, he properly alleges the discriminatory conduct was based on his male sex, and, therefore, whether or not Lampley is gay, or whether or not Lampley displayed stereotypically male attributes, is irrelevant for purposes of determining whether he alleged sufficient ultimate facts to state a claim under the MHRA for sex discrimination."
In another, separate opinion, Chief Justice Zel Fischer said his colleagues should have blocked further action in the case because Lampley and Frost didn't follow the Supreme Court's established rules of procedure.
Draper wrote: "While the litigants should strive to follow the proper procedure in any litigation, it is clear the participants in this case believed they were acting properly.
"This Court will not penalize them for failing to follow precedent (that was) not established at the time."
However, Fischer countered: "Unlike a majority of this Court, my view is that clarity and predictability demand this Court follow its rules as written.
"Like the boy who cried wolf, the principal opinion reduces this Court's holdings to unheeded exhortations by once again excusing Lampley and Frost's noncompliance with Rule 94."
And, in a 19-page dissent, Judge W. Brent Powell would have ruled the Human Rights Commission's executive director "did not abuse her discretion in determining the complaints alleged discrimination based on sexual orientation, (and) the circuit court certainly did not abuse its discretion in denying a petition for mandamus that attempted to challenge this discretionary determination."