Many employees experience some type of unlawful discrimination in the workplace. Federal and Missouri law prevent covered employers from discriminating on the basis of age, race, national origin, gender, sex, disability, pregnancy, and religion. But what sexual orientation? Is an employee's sexual orientation a protected category that an employer cannot consider when making personnel decisions, such as hiring, firing, and promotion?
Under federal statutory law, sexual orientation is not a legally protected category. Likewise, under the Missouri Human Rights Act (the Missouri statute that prohibits discrimination based on age, race, disability, etc.), sexual orientation is not a protected category. However, there are other laws in Missouri that prohibit sexual orientation discrimination and provide legal protection for employees, including a recently-passed ordinance in St. Louis County, Missouri.
On November 27, 2012, the St. Louis County Council passed legislation by a vote of 4-3 that protects lesbian, gay, bisexual, and transgender ("LGBT") employees. Specifically, the St. Louis County ordinance protects LGBT individuals against discrimination in employment, housing, and public accommodation. It does so by adding LGBT to the county's anti-discrimination law as well as closing up a loophole that previously allowed LGBT individuals to be terminated from employment due to their sexual orientation. According to news reports, the St. Louis County Council held a meeting at which members of the public voiced support for and opposition to the ordinance prior to its passage. Supporters of the ordinance argued that the ordinance was necessary to achieve fairness in employment, housing, and public accommodation decisions and to foster inclusion and understanding within the community. Opposition to the ordinance was based largely on moral and religious grounds.
Passage of the St. Louis County ordinance adds to several other legal protections that were already in place in Missouri to legally protect employee from sexual orientation discrimination. For several years, St. Louis City has had an ordinance banning sexual orientation discrimination. Similarly, Missouri Governor Jay Nixon signed an Executive Order on July 9, 2010 that granted public sector employees in Missouri protection from sexual orientation discrimination. More recently, on July 23, 2012, Creve Coeur amended their anti-discrimination ordinance with a vote of 7-0 to protect against gender identity and sexual orientation discrimination in employment matters.
LGBT employees may also be protected by Missouri common law. While the vast majority of employees in Missouri are at-will employees (that is, either the employee or the employer can generally terminate the employment relationship at any time for any reason, with or without notice), Missouri law recognizes certain "public policy" exceptions to the general rule of at-will employment. Specifically, the Missouri Supreme Court has held that the employment at-will rule may be "modified directly by or through public policy reflected in the constitution, a statute, a regulation promulgated pursuant to statute, or a rule created by a governmental body." [See Fleshner v. Pepose Vision Institute, 304 S.W.3d 81 (Mo. banc. 2010); see also Margiotta v. Christian Hospital, 315 S.W.3d 342 (Mo. banc 2010)]. An employee who is discriminated against because they are lesbian, gay, bisexual, or transgender may have a public policy claim under Missouri common law, based on the existence of an ordinance or Executive Order which prohibits such discrimination but does not specifically provide a legal remedy or private right of action for the employee.
To be certain, the legal landscape for LGBT employees is changing, both in Missouri and across the country. As a result, employers will be required to take more precautions to ensure that sexual orientation and gender identity are not factors that are taken into account in personnel decisions.
If you believe that you have been the victim of LGBT discrimination at work, or if you want to know more about your rights, you should contact a St. Louis employment lawyer.