St. Louis County has decided to double down on dumb, arguing that since state law doesn’t outlaw discrimination against gays, the county didn’t violate state law by treating Sgt. Keith Wildhaber the egregious way it did. The argument might be the county’s best hope of reducing the nearly $20 million award a jury imposed last month for multiple acts of discrimination against Wildhaber. But morally, this is a reprehensible strategy that deserves the harshest reception possible in the court of public opinion.
It’s clear from the 63-page post-trial motion filed by outside attorneys on the county’s behalf that senior decision-makers in the county government signed off on this strategy, which means County Executive Sam Page has allowed concerns over money to eclipse a once-principled stand about how to proceed in this case.
“The county executive and the county counselor have openly and publicly stated their disdain for the state of Missouri law on sexual orientation discrimination,” the lawyers stated in their court filing Monday. “But they are also fiduciaries, responsible to the taxpayers, and must respect the current state of the law, no matter how much they are disappointed by its failure to protect all groups deserving of protection.”
If Page truly believes that it was wrong for county police commanders to deny promotions to Wildhaber on 23 occasions, punish him for complaining and suggest he “tone down his gayness,” then Page needs to take an unyielding stand. Instead, he said: “I would not have authorized an appeal of the crippling monetary award without also pursuing a settlement or without making major changes to the leadership of the department and the training of its officers.”
That wet-noodle response contrasts sharply with Page’s reaction last month when the jury award was announced, and Lewis Rice lawyers publicly tested their argument that sexual-orientation discrimination is allowable under state law. Page said on Oct. 30 he was “horrified and surprised that argument was used and I don’t want to see it used again. I have a general rule that I don’t manage departments, but this is going to be an exception.”
Page’s updated statement makes clear he authorized the appeal and the arguments used in that chosen strategy.
The county’s argument acknowledges Wildhaber’s contention that sexual-orientation discrimination occurred despite a county ban on it. But state law “does not currently offer protection” against such discrimination, the county’s lawyers argued.
Gender discrimination is prohibited under state law. Wildhaber argued that the discrimination was gender-based since he failed to meet commanders’ standards of how men should behave.
The jury sided with Wildhaber. Now it’s the county crying crocodile tears in court about how unfairly it’s been treated and how “grossly excessive” the jury’s punitive-damage award is. Given police commanders’ complete lack of contrition in this case, the judge should rule that the punishment fits the crime.