Many of us are waiting with interest for the US Supreme Court’s decision as to whether Title VII of the Civil Rights Act’s prohibition against sex discrimination includes discrimination based on sexual orientation and gender identity. While we’re waiting though, the issue is not on hold. Last month a police sergeant in Missouri won just under $20 million in a case against the St. Louis County Police Department, that allegedly failed to promote him due to his sexual orientation. The Department also allegedly transferred him to another precinct, far from his home, and to a position generally seen as less favorable after he filed a charge with both the EEOC and the Missouri Commission on Human Rights, earning the Department an additional retaliation charge.
The case is Wildhaber v St Louis County Missouri, No.17SL-CC00133 (Circuit Court of St. Louis County, Mo. In a nutshell, here’s what went down:
Sergeant Wildhaber worked for the St. Louis County Police Department for 22 years. In 2014, he applied for a promotion to a lieutenant position. The application process required a written test and assessment. Out of 26 candidates, Sergeant Wildhaber placed third on the written test. Out of the 9 applicants that scored the highest on the test, only he and one other candidate that Wildhaber described in his complaint has “having a history of disciplinary/peformance problems” allegedly did not receive a promotion to lieutenant. There’s more, though. Wildhaber’s duties as a sergeant included checking on local restaurants as a safety precaution. One restaurant owner, who is also a member of the civilian Board of Police Commissioners, allegedly told him, “[t]he command staff has a problem with your sexuality.” “If you ever want to see a white shirt,” or get a promotion, Wildhaber alleged the owner told him, “you should tone down your gayness.” In the last five and a half years, Wildhaber has been denied promotions 23 times.
During the trial, the Police Chief testified that Wildhaber was denied promotions based on issues “unrelated to his sexuality”, citing one instance in which he allegedly tipped off the target of an FBI investigation and for failing to submit official reports. The Chief also claimed to be unaware of the transfer. But then, the widow of a former police officer testified that at an event in 2015 the Police Captain described Wildhaber as “fruity”, that he would never be promoted because he was “way too out there with his gayness and he needed to tone it down if he wanted a white shirt.” The Captain denied knowing the witness, which backfired. It seems the widow had a photo of them together and the jury apparently saw it. On the discrimination claim, the jury awarded Sergeant Wildhaber $1.9 million in actual damages and $10 million in punitive damages. On the retaliation claim, the jury awarded $999,000 in actual damages and $7 million in punitive damages.
The jury foreman made the jury’s intent clear, when he said, ““We wanted to send a message…If you discriminate, you are going to pay a big price.” OK, so here’s the burning question: As of now, we have some federal circuit courts saying that the federal prohibition against sex discrimination does include sexual orientation and gender identity discrimination and some saying that it doesn’t. The State of Missouri has no such explicit prohibitions. So how did Sergeant Wildhaber win — and, even moreso, how did he win so big?
Sergeant Wildhaber didn’t allege discrimination based on Title VII directly prohibiting sexual orientation discrimination. He argued that the Department’s actions constituted sex discrimination because he did not conform to gender stereotypes. The US Supreme Court in Hopkins v Price Waterhouse ruled that adverse employment actions against employees (or applicants) that failed to conform to gender stereotypes is also sex discrimination under Title VII. Earlier this year, the Missouri Supreme Court issued the same ruling under State law. The comments by the Police Captain and the member of the Board of Police Commissioners were excellent evidence of exactly that–in addition to the 23 promotion denials despite how highly he scored on his tests, and despite others clearly less qualified than he was having been promoted. Then there’s the transfer to a less favorable position after he first filed his charge. Even if Wildhaber’s discrimination claim were found to be without merit, the retaliation claim stands on its own, and in all likelihood he still would have won that claim.
So, what are the takeaways? Here are some:
- Discrimination cases based on sexual orientation (or gender identity) are not going away and will not go away regardless of how the US Supreme Court rules;
- It is in every employer’s interest to make sure its policies and practices prohibit discrimination based on sexual orientation and gender identity and that they do not tolerate such discrimination;
- Base adverse employment actions on job performance and conduct– and leave everything else out of the mix;
- Even if the underlying claim is found to be baseless, an adverse action against any such employee will often support a retaliation claim, which stands independently of the discrimination claim. In other words you have now provided the employee an additional claim against you if you retaliate.
- Please note: I am not saying that an explicit Title VII prohibition is not necessary. I am saying that even if the Supreme Court rules that Title VII’s prohibitions against sex discrimination do not specifically protect against sexual orientation or gender identity discrimination that employers who do engage in such discrimination are not free to to do. In fact any such employers who do so, still act at their own peril and have little or no right to complain if they suffer the same fate as St. Louis County.
OK, enough said — for now.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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