James Pittman said he was harassed and fired by his previous employer for being a gay man. The Missouri Court of Appeals rejected his lawsuit against the Cook Paper Recycling Corp.

The court dismissed the case in a 2-1 decision for failure to state a claim, since the Missouri Human Rights Act does not explicitly protect against discrimination based on sexual orientation.

“No room exists for construction, even when the court may prefer a policy different from that enunciated by the legislature,” Chief Judge James Welsh wrote in the [majority opinion](http://www.aclu-mo.org/files/4014/4596/4725/Pittman_decision.pdf).

The American Civil Liberties Union, alongside other groups, has worked for years to pass [the Missouri Non-Discrimination Act],(https://www.themaneater.com/stories/2015/4/29/missouri-takes-step-toward-lgbt-acceptance/) which would protect lesbian, gay, bisexual and transgender people against discrimination in the workplace.

“Unfortunately, there are legislators, who are keeping that from coming up for a vote, who will not schedule that for a hearing, even though we know … a majority of Americans believe in equal opportunity,” ACLU of Missouri Executive Director Jeffrey Mittman said.

Pittman stated in his claim that his harassment and the eventual termination of his employment was sex discrimination. The ACLU wrote an amicus brief in support of Pittman, highlighting for the court that sexual orientation discrimination can be analyzed under the current law protecting against sex discrimination, which was affirmed by Judge Anthony Gabbert in his dissenting opinion.

“A person’s sex is always considered when taking a person’s sexual orientation into account,” Gabbert wrote. “Thus, under the spirit of the law, sexual discrimination claims based on sexual orientation are actionable claims under the Missouri Human Rights Act.”

Gabbert was following the Equal Employment Opportunity Commission’s method, said Cameron Lincoln, president of the School of Law’s Lambda Legal Society.

Mittman said the EEOC is moving toward analyzing discrimination based on sexual orientation under the existing law protecting against sex discrimination.

“That’s a really smart way to get around how slow Congress is to sometimes get to these things,” Lincoln said. “Using a broad interpretation of the text allows the law to move forward with changes in the culture.”

This is the first time this issue has been raised in Missouri courts. Pittman’s attorney Lynne Bratcher said she is going to continue to pursue this case.

“We’re still going forward and I’m hopeful that the (Missouri) Supreme Court will hear this,” Bratcher said.

Bratcher said the Missouri Supreme Court has more power to interpret laws than lower courts, and does not have to follow the decision of the Court of Appeals.

Lincoln said the majority’s opinion used a very strict interpretation of the law.

“It’s based on textual analysis and not adding anything outside of the legislative intent,” Lincoln said. “Their view on this is that the legislature didn’t write sexual orientation, it’s impermissible for us to just draw it in because we wanted to.”

The court made it clear that they were reluctant to deny Pittman’s claim.

“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,” Welsh wrote.

Special Judge Robert Clayton wrote that he “respectfully and reluctantly” concurred in the opinion of Welsh.

Mittman said the majority of Americans are in favor of equal opportunity and fair treatment in the workplace.

“Most Americans, and most Missourians, presume and just assume that those protections exist for gay people, for lesbian people and transgender people,” Mittman said. “What they don’t understand is that it is perfectly legal for somebody to come in for a job, to be the most qualified applicant, and for the employer to say, ‘I’m not hiring you because you’re a lesbian.’ People don’t understand that that’s the current state of the law.”

Bratcher said it is possible for the case to spark legislative change. After the decision came down, she heard from the Attorney General and various legislators, who expressed the need to take action on behalf of Missouri LGBTQ citizens.

“Excluding gay, lesbian, bisexual, transgender persons from employment opportunities, from equality of opportunities, from public businesses, is the exception,” Mittman said. “It is not what people want or what people expect, and we hope and presume that very quickly the Missouri General Assembly will fix that injustice, as well as the federal Congress.”