In a 2-1 decision Tuesday in Michigan, the Western District Missouri Court of Appeals ruled against James Pittman, a gay man who sued Cook Paper Recycling Corp. for discriminating and harassment.
Des[ite the fact that the abuse, harassment and overall hostile environment was well documented in the case, the court ruled that Pittman could not sue. “Because the Missouri Human Rights Act does not prohibit discrimination on the basis of sexual orientation.”
While working for Cook Paper, Pittman was repeatedly called abuse names such as “cocksucker” and subjected to other anti-gay comments.. He was asked repeatedly if he had AIDS. And was harassed for having a partner, and then viciously mocked by his co-workers when that relationship ended. In the end Cook Paper fired him.
Pitt argued that because the MHRA does protect “sex,” he should be able to fight hid dismissal 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 of the definitions can all be read as including “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 one 28 states that still 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.