Did This Man Get Away With Harassing a Gay Employee?

For the first time, a Missouri appellate court has ruled that the word "sex" in a state law barring discrimination based on sex only covers incidents involving gender, not sexual orientation, reports the Columbia Daily Tribune.

The 2-1 decision in the case of James Pittman upheld a 2013 dismissal of his lawsuit against Cook Paper Recycling Corporation.

Pittman, who is gay, claimed that Joe Jurden, the president of Cook Paper, called him a "cocksucker" and that Jurden "made other comments of a sexual nature, discriminatory to a male homosexual, including asking him if he had AIDS," the Tribune reports. Pittman was eventually fired in December 2011 after seven years with the company.

Attorneys for the defendant successfully argued that in Missouri it's not illegal to fire or otherwise discriminate against an employee for being gay.

"Unlike many other states, Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act," Chief Judge James Welsh wrote in the majority opinion.

"If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act's 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. 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."

There was one dissenting vote, that of Judge Anthony Rex Gabbert:

"A person's sex is always considered when taking a person's sexual orientation into account. (E.g., homosexual, heterosexual). Thus, under the spirit of the law, sexual discrimination claims based on sexual orientation are actionable claims under the Missouri Human Rights Act."

Lynne Bratcher, Pittman's attorney, told the Tribune she will appeal to the Missouri Supreme Court.

The American Civil Liberties Union issued a statement calling for the passage of the Missouri Non-Discrimination Act, which would provided expanded protections. At the federal level, the Equal Employment Opportunity Commission has held that the ban on sex discrimination in Title VII of the U.S. Civil Rights Act of 1964 also covers discrimination based on sexual orientation. However, the decision, while influential, is not binding on federal or state courts.

You can read the full opinion here.