James Pittman faced discrimination because he was gay—that, nobody denies. As an employee at Cook Paper Recycling Corp. in Missouri, Pittman was subject to vile homophobic harassment: Employees called him a “cocksucker,” asked whether he had AIDS, mocked him for being gay and having a boyfriend, and ridiculed him when they broke up. Then Cook Paper fired him.
Pittman sued, alleging he was subject to illegal workplace discrimination. The court promptly dismissed his suit, ruling that Pittman’s harassment was perfectly legal. Neither Missouri nor federal law explicitly bars discrimination on the basis of sexual orientation, the court reasoned, so Cook Paper’s employees were free to torment, mock, and fire Pittman for being gay. On Tuesday, the Western District Missouri Court of Appeals affirmed the lower court’s ruling.
As ThinkProgress’ Zack Ford points out, this decision was hardly inevitable. Missouri’s Human Rights Act bars discrimination on the basis of sex, which many courts—as well as the the federal Equal Employment Opportunity Commission—have found to include sexual orientation. As I explained the EEOC’s reasoning in July:
Sexual orientation discrimination is “associational discrimination on the basis of sex.” When a homophobic employer mistreats a gay male employee, he does so because he dislikes the fact that his employee dates other men. In other words, the employer took that employee’s sex into account while making the decision to treat him unequally. Such discrimination is obviously sex-based.
In a forceful dissent from the Missouri court’s decision, appeals court Judge Anthony Rex Gabbert endorsed the EEOC’s logic, noting that “sexual orientation is inherently a sex-based consideration because when an employer takes a person’s sexual orientation into account the employer necessarily considers a person’s sex.” But neither of his colleagues saw the wisdom of his position, so Pittman’s claim got tossed out of court.
Twenty-eight states offer no explicit protection against sexual-orientation discrimination in the workplace, and congressional Republicans are currently blocking a vote on a federal law to ban anti-LGBTQ discrimination nationwide. Until that law passes—or until the Supreme Court adopts the EEOC’s interpretation of sex discrimination—people like James Pittman will continued to be harassed, humiliated, and fired for no reason other than their orientation. That strikes me as a profoundly distressing and unjust status quo. But it is a status quo that conservative politicians appear eager to maintain.
