In the 

Missouri Court of Appeals

Western District

JAMES PITTMAN,

Appellant,

v.

COOK PAPER RECYCLING CORP.,

Respondent.

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WD77973

OPINION FILED:

October 27, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Joel Fahenstock, Judge

Before Special Division:

James Edward Welsh, P.J., Anthony Rex Gabbert, J., and Robert M. Clayton III, Sp. J.

James Pittman appeals from the circuit court's judgment dismissing his petition for 

damages alleging that his employer, Cook Paper Recycling Corporation, "caused the workplace 

to be an objectively hostile and abusive environment based on sexual preference." The circuit 

court dismissed Pittman's petition for failure to state a claim.1 Pittman contends that the circuit 

court erred in dismissing his claim because his petition adequately stated a claim for sex 

discrimination in that he alleged that he was harassed and terminated from his employment 

 

1

Pittman's petition also made a claim for retaliation. The circuit court did not dismiss this claim, but 

Pittman voluntarily dismissed this claim without prejudice following the circuit court's dismissal of the claim 

alleging that Cook Paper caused the workplace to be an objectively hostile and abusive environment based on sexual 

preference.
2

because of his sexual orientation.

2

 Because the Missouri Human Rights Act does not prohibit 

discrimination on the basis of sexual orientation, we affirm the circuit court's judgment 

dismissing Pittman's petition for failure to state a claim.

The facts, as alleged in Pittman's petition, are as follows. Pittman, a homosexual male, 

worked as a controller at Cook Paper from April 2004 until his termination on December 7, 

2011. During the time Pittman was employed by Cook Paper, the president of the company, Joe 

T. Jurden, told Pittman that "he was a 'cocksucker' and made other comments of a sexual nature, 

discriminatory to a male homosexual, including asking him if he had AIDS." Cook Paper 

"discriminated against [Pittman] because [Cook Paper] did not approve of the male companion 

that [Pittman] had been seeing." When Pittman and his companion terminated their relationship, 

Cook Paper "treated [Pittman] more harshly than a male who was getting a divorce from his 

female wife." Cook Paper "caused the workplace to be an objectively hostile and abusive 

environment based on sexual preference." On December 7, 2011, Cook Paper terminated 

Pittman's employment.

On February 3, 2014, Cook Paper filed a motion to dismiss Pittman's petition alleging 

that the petition failed to state a claim for which relief could be granted. Specifically, Cook 

Paper argued that Missouri law lacks any legal standard or statute prohibiting employment 

discrimination on the basis of "sexual preference" and that "sexual preference" is not a protected 

class under the Missouri Human Rights Act. The circuit court agreed and dismissed Pittman's 

claim. The circuit court found that Pittman did not allege discrimination on the basis of "sex" 

but alleged that he was discriminated against because he was a homosexual. Thus, the circuit 

 

2The American Civil Liberties Union of Missouri Foundation and the American Civil Liberties Union 

Foundation Lesbian, Gay, Bisexual, Transgender and HIV Project filed a joint amici curiae brief in support of 

Pittman. We refer to the amici curiae collectively as the ACLU.
3

court concluded that the Missouri Human Rights Act does not include sexual orientation as a 

class of individuals protected from discrimination. Moreover, although Pittman urged the court 

to recognize the claim of "sexual stereotyping," the circuit court declined Pittman's request and 

stated that it was not the role of the court to create new causes of action. The court found that 

"[b]ased on the current state of Missouri law," it had to dismiss Pittman's claim. Pittman appeals.

This Court reviews the grant of a motion to dismiss de novo. Travelers Prop. Cas. Co. of 

Am. v. Manitowoc Co., Inc., 389 S.W.3d 174, 176 (Mo. banc 2013). "[R]eview of a motion to 

dismiss for failure to state a cause of action 'is solely a test of the adequacy of the plaintiff's 

petition.'" Id. (quoting City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 

2010)). We review the petition "'in an almost academic manner, to determine if the facts alleged 

meet the elements of a recognized cause of action, or of a cause that might be adopted in that 

case.'" Travelers Prop., 389 S.W.3d at 176 (quoting City of Lake St. Louis, 324 S.W.3d at 759).

We examine the petition, accepting as true all facts alleged and construing them liberally in favor 

of the plaintiff to determine whether he has stated a claim upon which relief can be granted. 

Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

In his sole point on appeal, Pittman asserts that the circuit court erred in dismissing his 

claim because his petition adequately stated a claim for sex discrimination. In particular, Pittman 

contends that his allegation that he was harassed and terminated from his employment because of 

his sexual orientation was sufficient to state a claim for discrimination under the Missouri 

Human Rights Act. 

The issue of whether or not discriminating against an employee because of his sexual 

orientation is prohibited under the Missouri Human Rights Act is a question of first impression in 

Missouri. Section 213.055.1(1)(a), RSMo 2000, provides: 
4

1. It shall be an unlawful employment practice:

(1) For an employer, because of the race, color, religion, national origin, 

sex, ancestry, age or disability of any individual:

(a) To fail or refuse to hire or to discharge any individual, or otherwise to 

discriminate against any individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such individual's race, color, 

religion, national origin, sex, ancestry, age or disability[.]

"The primary rule of statutory interpretation is to give effect to legislative intent as 

reflected in the plain language of the statute at issue." Crawford v. Div. of Emp't Sec., 376 

S.W.3d 658, 664 (Mo. banc 2012). "Where the language of the statute is unambiguous, courts 

must give effect to the language used by the legislature." Keeney v. Hereford Concrete Prods., 

Inc., 911 S.W.2d 622, 624 (Mo. banc 1995). "Courts lack authority 'to read into a statute a 

legislative intent contrary to the intent made evident by the plain language.'" Id. (citation 

omitted). No room exists for construction "'even when the court may prefer a policy different 

from that enunciated by the legislature.'" Id. (citation omitted).

The plain language of the Missouri Human Rights Act is clear and unambiguous. 

Employers cannot discriminate against employees on the basis of their "sex." The clear meaning 

prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by 

the Missouri legislature concerns discrimination based upon a person's gender and has nothing to 

do with sexual orientation. Indeed, the first definition of "sex" provided by Webster's Third New 

International Dictionary is "one of the two divisions of human beings respectively designated 

male or female[.]" Webster's Third New International Dictionary 2081 (Unabridged 1993). 

Legislative intent is the pole star of statutory interpretation and construction. Once legislative 

intent has been determined and becomes the pole star of statutory construction, there can be no 

unintended consequences of legislation by judicial interpretation. Thus, sex discrimination 
5

occurs when a plaintiff's sex is a contributing factor in an employer's employment decision. 

Ruppel v. City of Valley Park, 318 S.W.3d 179, 185 (Mo. App. 2010). Pittman does not allege 

that he was discriminated against or harassed because of his gender but alleges that he was 

discriminated against because of his sexual orientation. 

In essence, Pittman's petition is seeking a declaration that sexual orientation 

discrimination qualifies for protection under the Missouri Human Rights Act because it is 

tantamount to discrimination based on sex. We note, however, that, to even reach this reading of 

Pittman's petition, we must liberally construe the petition because, as the circuit court wisely

noted, the petition truly does not allege discrimination or harassment on the basis of “sex.” 

Pittman merely alleges that "[Cook Paper] caused the workplace to be an objectively hostile and 

abusive environment based on sexual preference."

3

The Missouri Human Rights Act, however, is not a general bad acts statute but lists 

categories of discrimination that are unlawful: "race, color, religion, national origin, sex, 

ancestry, age or disability." Unlike many other states,4 Missouri has not enacted legislation 

prohibiting discrimination against homosexuals by adding sexual orientation as a protected status 

in the Missouri Human Rights Act.5 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 

 

3We added the emphasis.

4

See Cal. Gov't Code § 12940; Colo. Rev. Stat. § 24-34-402; Conn. Gen. Stat. § 46a-60; Del. Code Ann. tit. 

19, § 710; Haw. Rev. Stat. § 378-2; 775 Ill. Comp. State 5/1-102; Iowa Code § 216.6; Me. Rev. Stat. Ann. tit. 5 

§ 4572; Md. Code Ann. State Gov't § 20-606; Mass. Gen. Laws Ann. ch. 151B, § 4; Minn. Stat. § 363A.08; Nev. 

Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Rev. Stat. § 10:5-4; N.M. Stat. Ann. § 28-1-7; N.Y. 

Exec. Law § 296; Or. Rev. Stat. § 659A.030; R.I. Gen. Laws § 28-5-7; Vt. Stat. Ann. tit. 21, § 495; Wash. Rev. 

Code § 49.60.180; Wis. Stat. § 111.36; D.C. Code Ann. § 2-1402.11.

5Attempts to amend the Missouri Human Rights Act to prohibit discrimination based upon sexual 

orientation have repeatedly been introduced in the legislature but have repeatedly failed. Alex Edelman, Show-Me 

No Discrimination: The Missouri Non-Discrimination Act and Expanding Civil Rights Protections to Sexual 

Orientation or Gender Identity, 79 UMKC. L. Rev. 741 (2011).
6

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. 

"[C]ourts cannot rewrite the statutes the legislature in its wisdom has enacted no matter 

how much such rewriting is desired by a particular group." Gross v. Merchants-Produce Bank, 

390 S.W.2d 591, 600 (Mo. App. 1965). "We cannot usurp the function of the General Assembly, 

or by construction, rewrite its acts." Marshall v. Marshall Farms, Inc., 332 S.W.3d 121, 128 

(Mo. App. 2010). Our role is limited to interpreting and applying the statute as it currently 

exists. "To substitute for the concept of the general assembly our view of what might be the 

more salutary public policy would be for us to legislate rather than to adjudge." Lemasters v. 

Willman, 281 S.W.2d 580, 590 (Mo. App. 1955). "Our function is to declare the law as we 

discover it in the text furnished us by the general assembly and when we have done so our 

authority ends." Id. "We must leave the law as it has been so long construed to stand as it reads 

until the general assembly sees fit to alter it." Id. Therefore, until the general assembly amends

the Missouri Human Rights Act to include sexual orientation, discrimination based upon one's 

sexual orientation is not protected by the statute. The circuit court, therefore, astutely dismissed

Pittman’s petition for failure to state a claim because the Missouri Human Rights Act does not 

prohibit discrimination on the basis of sexual orientation 

Pittman and the ACLU make several policy arguments advocating broad social change in 

Missouri regarding the rights of homosexuals. In support of their policy arguments, they assert 

that in interpreting the Missouri Human Right we should be guided by federal cases involving 
7

Title VII. In particular, they rely on the United States Supreme Court's decision in Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the Court held that, if gender 

stereotyping, i.e. discriminating against a person because he or she failed to conform to the 

employer's expectation as to how someone of his or her gender should behave, plays a 

motivating part in an employment decision, an employer “may avoid liability only by proving by 

a preponderance of the evidence that it would have made the same decision even if it had not 

taken the plaintiff’s gender into account.” Id. at 251 and 258. The Court stated:

[W]e are beyond the day when an employer could evaluate employees by 

assuming or insisting that they matched the stereotype associated with their group, 

for in forbidding employers to discriminate against individuals because of their 

sex, Congress intended to strike at the entire spectrum of disparate treatment of 

men and women resulting from sex stereotypes.

Id. at 251 (internal quotation marks and citations omitted). Price Waterhouse, therefore, clarified 

that sex discrimination under Title VII comprises not only disparate treatment of women as 

compared to men, or vice versa, but also discrimination based upon gender stereotyping.6

We need not decide, however, whether or not the Missouri Human Rights Act prohibits 

sex discrimination based upon gender stereotyping because Pittman did not raise a gender 

stereotyping claim in his petition.

7

 In his petition, Pittman merely alleged that the president of 

 

6

Price Waterhouse did not declare that a claim of discrimination based upon sexual orientation is 

cognizable under Title VII as a discrimination claim based upon sex. Price Waterhouse merely held that a plaintiff 

may prevail on a discrimination claim on the basis of sex under a gender stereotyping theory. Indeed, numerous 

federal courts have held that a claim of discrimination based upon sexual orientation is not cognizable under Title 

VII. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007); Vickers v. Fairfield Med. Ctr., 453 

F.3d 757, 764-65 (6th Cir. 2006); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Schroeder v. 

Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 

(3d Cir. 2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Wrighton v. Pizza 

Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th 

Cir. 1989).

7

Pittman merely argued gender stereotyping in response to Cook Paper's motion to dismiss his petition and 

then again in his brief on appeal. Even then, Pittman merely asserted that "sexual stereotyping is a form of sex 

discrimination and is akin to discrimination on the basis of sexual orientation."
8

Cook Paper told him that "he was a 'cocksucker' and made other comments of a sexual nature, 

discriminatory to a male homosexual, including asking him if he had AIDS." Pittman further 

alleged that Cook Paper "discriminated against [him] because [Cook Paper] did not approve of 

the male companion that [he] had been seeing" and that Cook Paper "treated [him] more harshly 

than a male who was getting a divorce from his female wife." Finally, Pittman alleged that 

"[Cook Paper] caused the workplace to be an objectively hostile and abusive environment based 

on sexual preference." The petition is devoid of any allegation regarding gender stereotyping. 

Pittman did not claim that he was harassed because he failed to comply with societal stereotypes

of how he ought to appear or behave. His claim was a simple and direct claim that he was 

discriminated against because of his sexual orientation. 

Moreover, "[t]he [Missouri Human Rights Act] and Title VII are coextensive, but not 

identical, acts."8 Brady v. Curators of Univ. of Mo., 213 S.W.3d 101, 112 (Mo. App. 2006) 

(emphasis omitted). As the Brady court explained:

These statutes create different causes of action. Missouri Courts have adopted 

federal Title VII case law when interpreting analogous discrimination statutes in 

 

8We recognize that the United States Equal Employment Opportunity Commission recently handed down a 

decision in Complainant v. Anthony Foxx, Secretary, Dep't of Transp. (Fed'l Aviation Admin), Agency, EEOC DOC 

0120133080, 2015 WL 4397641 (E.E.O.C. July 16, 2015), in which it declared that allegations of discrimination on 

the basis of sexual orientation state a claim of discrimination on the basis of sex under Title VII. This decision, 

however, is merely an administrative agency's interpretation of the words of a statute that the United States Congress 

enacted and is in no way binding on this court. We decline to rely on an administrative interpretation of the term 

"sex" under Title VII to declare the intent of the Missouri Legislature on a Missouri statute, especially on a matter 

that involves public policy. It is not our role to question the public policy values of a legislatively enacted scheme. 

Moreover, the United States Supreme Court has never declared that discrimination on the basis of sexual orientation 

states a claim of discrimination on the basis of sex under Title VII. Indeed, in the Supreme Court's recent decision 

finding that same-sex couples have the fundamental right to marry, the Supreme Court acknowledged that the 

Supreme Court of Hawaii had held that "Hawaii's law restricting marriage to opposite-sex couples constituted a 

classification on the basis of sex," Obergefell v. Hodges, 135 S.Ct 2584, 2596 (2015) (citing Baehr v. Lewin, 852 

P.2d 44 (1993)), but the Supreme Court did not base its ruling upon the same rationale and instead concluded that 

the right to marry was" a fundamental right inherent in the liberty of the person" under the Due Process and Equal 

Protection Clauses of the Fourteenth Amendment of the United States Constitution. Id. at 2604. As previously 

stated, we maintain that it is not this court's role to rewrite the statutes that the legislature has enacted no matter how 

much such rewriting is desired by a particular group or, indeed, by this court or any other tribunal. Our role is 

limited to interpreting and applying the statute as it currently exists.
9

the Missouri Human Rights Act. However, the MHRA is not merely a reiteration 

of Title VII. The Act is in some ways broader than Title VII, and in other ways is 

more restrictive. If the wording in the MHRA is clear and unambiguous, then 

federal case law which is contrary to the plain meaning of the MHRA is not 

binding.

Id. at 113 (citations omitted). Contrary to Pittman's and the ACLU's contentions, the language of 

the Missouri Human Rights Act is clear and unambiguous: it prohibits employment 

discrimination based on an individual's race, color, religions, national origin, sex, ancestry, age or 

disability. It does not prohibit discrimination on the basis of sexual orientation.

Conclusion

Because the Missouri Human Rights Act does not prohibit discrimination on the basis of 

sexual orientation, we affirm the circuit court's judgment dismissing Pittman's petition for failure 

to state a claim.

/s/ JAMES EDWARD WELSH 

James Edward Welsh, Presiding Judge

James E. Welsh, Presiding Judge, writes for the majority.

Robert M. Clayton III, Special Judge, writes in a separate concurring opinion.

Anthony R. Gabbert, Judge, writes for the dissent.
 

 

In the 

Missouri Court of Appeals

Western District

JAMES PITTMAN,

Appellant,

v.

COOK PAPER RECYCLING CORP.,

Respondent.

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WD77973

FILED: October 27, 2015

SEPARATE OPINION

I respectfully and reluctantly concur in the opinion of Judge Welsh with respect to the 

result only.

ROBERT M. CLAYTON III, Special Judge
 

In the 

Missouri Court of Appeals

Western District

JAMES PITTMAN,

Appellant,

v.

COOK PAPER RECYCLING CORP.,

Respondent.

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WD77973

FILED: October 27, 2015

DISSENTING OPINION

I respectfully dissent. The majority opinion holds that “[t]he clear meaning prohibiting 

discrimination based upon ‘sex’ under the Missouri Human Rights Act concerns discrimination 

based upon a person’s gender and has nothing to do with sexual orientation.” Thus, the majority 

equates “sex” with “gender.”

While there is no doubt that gender is encompassed in the meaning of sex, it does not 

equate to sex. “The plain meaning of words, as found in the dictionary, will be used unless the 

legislature provides a different definition.” Lincoln Industrial, Inc. v. Director of Revenue, 51 

S.W.3d 462, 465 (Mo. banc 2001). There is no requirement, therefore, that a specific definition 

be given preference over another in absence of a legislative definition. Even a cursory look in a 

dictionary by the majority would have led them to determine that, in fact, sex does not include 

only gender. Indeed, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993) defines sex 
2

as: (1) one of the two divisions of human beings respectively designated male or female; (2) the 

sum of the morphological, physiological, and behavioral peculiarities of living beings that 

subservesbiparental reproduction; (3) the sphere of interpersonal behavior especially between 

male and female most directly associated with, leading up to, substituting for, or resulting from 

genital union; and (4) the phenomena of sexual instincts and their manifestations.9

I would adopt the dictionary’s definition of “sex” to be the plain meaning of sex in the 

Missouri Human Rights Act. As a result of this plain meaning, the definition of sex has 

expanded the majority’s plain meaning of gender to allow for harassment or hostile workplace 

actions. In fact, I am not alone in recognizing this plain meaning of sex. As used in Title VII of 

the Civil Rights Act of 1964, “the term ‘sex’ encompasses both sex—that is the biological 

differences between men and women—and gender.” Complainant v. Foxx, EEOC, Appeal No. 

0120133080, pg. 5, fn. 3. “As the Eleventh Circuit noted in Glenn v. Brumby, 663 F.3d 1312, 

1316 (11th Cir. 2011), six members of the Supreme Court in Price Waterhouse10 agreed that Title 

VII barred ‘not just discrimination because of biological sex, but also gender stereotyping—

failing to act and appear according to expectations defined by gender.”’ Id. “As such, the terms 

‘gender’ and ‘sex’ are often used interchangeably to describe the discrimination prohibited by 

Title VII.” Id.

Further, in Complainant v. Foxx, the EEOC concluded that “sexual orientation is 

inherently ‘a sex-based consideration,’ and an allegation of discrimination based on sexual 

orientation is necessarily an allegation of sex discrimination under Title VII.” Id. at 6. In that 

 

9 The American Psychological Association also recognizes a difference between sex and gender. See 

Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation, found at 

www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf.

10Price Waterhouse v. Hopkins, 490 U.S. 228, 239, 241-42 (1989).
3

case, the Complainant worked as a temporary supervisory air traffic control specialist for the 

Federal Aviation Administration (FAA) in a Miami, Florida airport. Id. at 1. The FAA issued a 

vacancy announcement for a permanent Front Line Manager position for which Complainant 

was eligible and his present position automatically qualified him for consideration. Id. at 2. 

Complainant claimed that management knew of his desire to obtain a permanent position and 

that he was well-qualified given his years of experience and familiarity with the Miami facility. 

Id. The FAA did not fill the front line position. Id. The Complainant filed a formal EEO 

complaint alleging that the FAA subjected him to discrimination on the bases of sex (male, 

sexual orientation) and reprisal for prior protected EEO activity when the FAA failed to select 

him for the permanent front line manager at the Miami airport. Id. at 1-2.

Unlike the EEOC’s decision, the majority dismisses the argument that discrimination 

based on a person’s sexual orientation is not a protected status in the Missouri Human Rights Act 

by noting that if the “Missouri legislature had desired to include sexual orientation in the 

Missouri Human Rights Act’s protections, it could have done so.” Yet, our Missouri Supreme 

Court has stated that “it is speculative to infer legislative approval from legislative inaction.” 

Medicine Shoppe Intern., Inc. v. Director of Revenue, 156 S.W.3d 333, 334 (Mo. banc 2005). 

“Legislative inaction [] can just as well mean that the forces arrayed in favor of changing the law 

are matched by the forces against changing it.” Id. “In truth, the match does not have to be an 

even one, for the legislative purpose in our republican form of government is designed more to 

prevent the passage of legislation than to encourage it.” Id. Where our legislature used the 

broad term “sex,” and that term has been defined in many realms and most recently by the EEOC 

to include sexual orientation, I prefer to believe that if one is looking to the legislature for 

guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to 
4

act to include. The majority’s analysis suggests that a narrow, letter of the law interpretation 

must always be used in cases involving the Missouri Human Rights Act. However, this has 

historically not been the case as the Missouri Human Rights Act is a remedial statute.

In Missouri Commission on Human Rights v. Red Dragon Restaurant, 991 S.W.2d 161 

(Mo. App. 1999), a restaurant refused entrance to a patron and her companions who were 

accompanied by guide dogs to aid their mobility. Id. at 164-65. The patron filed a timely 

complaint with the Missouri Commission on Human Rights alleging associational discrimination 

under the Missouri Human Rights Act. Id. at 165. The Commission found for the patron, and 

the restaurant appealed to the circuit court. The circuit court reversed the Commission’s finding 

of associational discrimination on the basis that the legislative amendment to the controlling 

statute was not to be applied retroactively. Id. The Commission appealed to this court. Id. At 

the time of the incident, there was no case law in Missouri addressing whether associational 

discrimination was a cause of action under the Missouri Human Rights Act. Id. at 166. 

However, after the incident, the Missouri legislature added associational discrimination to the 

Missouri Human Rights Act. Id. Nevertheless, this Court reasoned that the legislature amended 

the Missouri Human Rights Act to clarify that associational discrimination is a covered form of 

discrimination. Id. (emphasis added). Thus, if following the reasoning in Red Dragon, action 

on the part of the Missouri legislature to add sexual orientation would only clarify that 

discrimination based on sexual orientation (or in this case preference) is discrimination based on 

sex.

Furthermore, when determining legislative intent, the Red Dragon court stated that “this 

court must bear in mind that ‘[r]emedial statutes [like the Missouri Human Rights Act] should be 

construed liberally to include those cases which are within the spirit of the law and all reasonable 
5

doubts should be construed in favor of applicability to the case.”’ Id. at 166-67 (quoting State ex 

rel. Ford v. Wenskay, 824 S.W.2d 99, 100 (Mo. App. 1992)(emphasis added). Consequently, I 

would find that Pittman did state a claim upon which relief could be granted. When analyzing a 

Motion to Dismiss, “[t]he pleadings are liberally construed and all alleged facts are accepted as 

true and construed in a light most favorable to the pleader.” Hedrick v. Jay Wolfe Imports I, LLC, 

404 S.W.3d 454, 457 (Mo. banc 2013). “If the petition sets forth any facts that, if proven, would 

entitle the plaintiffs to relief, then the petition states a claim.” Id. The circuit court concluded 

that Count I of Pittman’s petition alleging Sexual Discrimination/Harassment failed to state a 

claim because “he did not allege discrimination on the basis of ‘sex’ – the fact he was a man, 

being treated different than a woman. Rather, he alleged he was discriminated against because 

he was a homosexual.” I disagree. While Pittman did allege that he was discriminated against 

because of his sexual orientation, he also alleged that “Defendant treated Plaintiff more harshly 

than a male who was getting a divorce from his female wife.” In so alleging, he articulated that 

gender bias was associated with his claims. I find this sufficient to state a claim in light of our 

obligation to liberally construe the pleadings and the fact that jurisprudence in this area reveals 

that while straightforward gender bias allegations may meet the pleading requirements to state a 

claim for sexual harassment, in reality they are often illusory upon examination of the facts upon 

which they are based. 

In Gilliland v. Missouri Athletic Club, Gilliland alleged that he, a male employee, was 

subjected to inappropriate sexual touching and harassment by a male manager where Gilliland 

was employed. 273 S.W.3d 516 (Mo. banc 2009). Gilliland ultimately quit his employment due 

to the alleged conditions. Gilliland also alleged that this manager inappropriately sexually 

touched and harassed several female employees. Id. Our Supreme Court stated: “The Missouri
6

Human Rights Act, like Title VII, prohibits sexual harassment regardless of the sex of the 

claimant or the harasser. In other words, the human rights act protects individuals against sexual 

harassment, a form of sex discrimination, by members of either the same or the opposite sex.” 

Id. at 521 n8. There was no mention of the fact that Gilliland’s allegations, in essence, pled that 

males and females alike were being mistreated by the employer and that technically Gilliland’s

allegations would not have met the pleading requirements for his workplace sexual harassment 

claim. To be fair, this issue was not before the court. Nevertheless, I think it is worthy to note 

that the jury in Gilliland found in favor of Gilliland on a constructive discharge claim that was 

not submitted under the human rights act, but in favor of the employer on all claims made under 

the human rights act. Although we have no way of knowing why, I believe that Gilliland is 

instructive in cases such as this to remind us that, ultimately, it is within the jury’s province to 

assess the facts of the case and determine whether the facts fall within the elements of the alleged 

tort. It is within our province to liberally construe the pleadings and assess whether any of the 

allegations might entitle the plaintiff to relief. 

The illusory nature of gender specific allegations is also found in our jurisprudence 

regarding student-on-student sexual harassment in the public school setting. In Doe ex rel. Subia 

v. Kansas City, Missouri School Dist., this court applied the standard for co-worker sexual 

harassment claims to the public school setting, and found Doe’s allegations sufficient to state a 

cause of action. Doe had alleged, in part, that he was sexually harassed and assaulted by another 

male student in the boys’ restroom and that the harassment occurred on the basis of his gender. 

372 S.W.3d 43, 55 (Mo. App. 2012). Yet, while the pleadings allege that the harassment 

occurred because of the child’s gender, there is nothing in the facts of the case that suggest that it 

was the child’s sex that prompted the other child to harass and assault him. 
7

Given the fact that the Missouri Human Rights Act is a remedial statute to be construed 

liberally to include those cases within the spirit of the law with all reasonable doubts to be 

construed in favor of applicability to the case, I would find that Pittman stated a claim under the 

Missouri Human Rights Act and leave it for a jury to decide whether Pittman can prove the 

elements necessary to prevail on his claim of sexual harassment. 

I would further find that, not only did Pittman’s petition state a claim by his reference to 

gender bias, but that, under the spirit of the law, allegations of discrimination based upon a 

person’s sexual orientation (or preference) and gender stereotype also state claims as they are 

encompassed by the term “sex” in the Missouri Human Rights Act. As the EEOC decision 

stated, “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. Complainant v. Foxx at 6. In other words, 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. 

Therefore, by the plain language and spirit of the law of the Missouri Human Rights Act, 

I would find that Pittman’s petition states an actionable claim of sexual discrimination under the 

Missouri Human Rights Act. 

/s/ ANTHONY REX GABBERT

Anthony Rex Gabbert, Judge