For 21 years, anti-discrimination activists have tried and failed to make it explicitly illegal in the state of Missouri to fire people just because they’re gay.
Every year, a state lawmaker or two files the Missouri Nondiscrimination Act, and every year, the Republicans who control the Missouri Legislature make sure the bill dies.
Missouri remains one of 28 states that hasn’t enshrined discrimination protections for the LGBTQ community into state law.
That puts Sgt. Keith Wildhaber in a tough spot.
Wildhaber, an Army veteran and a St. Louis County cop, hasn’t been fired for his sexuality, but, he alleges in a lawsuit filed in 2017, he was passed over for promotion because of it, and then retaliated against when he sought legal redress.
On Monday, Wildhaber finally gets his day in court.
Five years ago, says the 25-year veteran of the county police force, a member of the county police board, John Saracino, told him this: “The command staff has a problem with your sexuality. If you ever want to see a white shirt (i.e. get a promotion), you should tone down your gayness.”
Saracino, owner of Bartolino’s restaurant, has denied making the statement. He is no longer a member of the county’s police board.
According to Wildhaber’s lawsuit, he applied multiple times to be promoted to lieutenant, had high marks on performance reviews, and tested third highest among the more than two dozen officers who took the test. Nearly all of the other people who made the promotion list have been promoted, his lawsuit says. Meanwhile, he got transferred to a different precinct far from his home in Oakville.
In defending the discrimination claim, attorneys for the county cite the state’s lack of specific employment protections for gays and lesbians, despite the fact that the St. Louis County Council expanded its anti-discrimination ordinance in 2012 to include LGBTQ protections.
Wildhaber and his attorney, Russ Riggan of the Riggan Law Firm, argue that the state’s existing laws against discrimination on the basis of sex provide all the protection necessary to bring a claim.
“Defendant has refused to promote Plaintiff because he does not conform to the county’s gender-based norms, expectations and/or preferences,” the lawsuit alleges. “Mr. Saracino’s comments to plaintiff are direct evidence of sex discrimination.”
It’s similar to the argument made in three cases before the U.S. Supreme Court this month.
In those cases, gay men in Georgia and New York, and a transgender woman from Michigan, are arguing that federal sex discrimination protections in Title VII of the Civil Rights Act apply to LGBTQ people. The U.S. Equal Employment Opportunity Commission has maintained that position since 2013.
Here’s how Pamela Karlan, co-director of the Stanford University Supreme Court Litigation Clinic, made the argument before the nation’s high court as to why that position should be maintained:
“The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity,” Karlan said. “In the words of the en banc Second Circuit, it forces judges to … resort to lexical bean counting where they count up the frequency of epithets, such as ‘fag,’ ‘gay,’ ‘queer,’ ‘real man,’ and ‘fem,’ to determine whether or not discrimination is based on sex or sexual orientation. That attempt is futile because when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.”
In effect, Karlan was saying that a specific law outlawing discrimination against LGBTQ people isn’t necessary if existing sex discrimination protections are properly applied. The whole point of them, she told the court, is that men and women aren’t treated differently in the workplace. That should apply whether men are dating men or men are dating women, or they identify as a gender different than the one they were assigned at birth.
What the judges ultimately rule could have lasting effects on discrimination gains made by the LGBTQ community in the past couple of decades.
One of those gains was specifically outlined by the Missouri Supreme Court in February.
In a case involving a former state employee named Harold Lampley, the court ruled that Missouri’s Human Rights Act protects employees from discrimination based on “sexual stereotyping.”
“Sexual orientation is incidental and irrelevant to sex stereotyping,” the court ruled. “Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping.”
On Monday, unless there is a last minute settlement or delay, Wildhaber will begin making a similar case to a jury of his peers, who live in a county that has determined as a matter of public policy that discriminating against gays and lesbians is against the law.
That jury will decide whether Wildhaber and other officers like him have to “tone down” their gayness to rise in the ranks of the St. Louis County Police Department, as long as Jon Belmar is its chief.