KANSAS CITY, Mo. (CN) - Calling a gay employee a "cocksucker" and asking if he has AIDS does not violate Missouri human rights law, a state appeals court ruled.
A divided three-judge panel ruled Tuesday that James Pittman cannot hold his former employer, Cook Paper Recycling Corp., liable because state law does not prohibit discrimination based on sexual orientation.
"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," Judge James Welsh wrote for the majority. "It does not prohibit discrimination on the basis of sexual orientation."
But Welsh was not joined in his opinion by his colleagues, with Judge Robert Clayton III concurring in result only and Judge Anthony Gabbert dissenting.
Pittman's 2014 complaint alleged that Cook Paper president Joe Jurden made discriminatory sexual comments to Pittman. The company also discriminated against him based on the man he was dating, and when the relationship ended, treated him more harshly than straight male employees going through divorces, the complaint states.
After working for the company for more than seven years, Pittman says he was terminated for being gay in 2011.
Affirming the lower court's dismissal, Welsh said that Missouri law does not name "sexual preference" discrimination in its list of prohibited workplace conduct, and the inclusion of "sex" as a prohibited factor is not the same thing.
"Unlike many other states, Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act," Welsh wrote. "If the Missouri Legislature had desired to include sexual orientation in the Missouri Human Rights Act's protections, it could have done so."
Gabbert disagreed with Welsh on all fronts, beginning by stating that "sex" and "gender" should not be used interchangeably as in the majority opinion.
"While there is no doubt that gender is encompassed in the meaning of sex, it does not equate to sex," Gabbert writes. "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.'"
Gabbert also highlighted state Supreme Court precedent that says it "it is speculative to infer legislative approval from legislative inaction," as Welsh does in his opinion.
"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 act to include," Gabbert wrote.
As a remedial statute, Gabbert concluded, Missouri human rights law is meant to be liberally construed to include cases "within the spirit of the law," and this one should have been left to a jury to decide.
There is no federal law prohibiting discrimination in private-sector employment on the basis of sexual orientation.
The American Civil Liberties Union, who filed a friend-of-the-court brief supporting Pittman, called the decision a clearly "reluctant" enforcement of the law as-is, and urged Missourians to support legislative changes.
"The court did not deny that what James experienced was real, but instead made clear that their hands were tied by Missouri law," Sarah Rossi, the Missouri ACLU's director of advocacy and policy, said in a statement.
"Contrary to what many believe, lesbian, gay, and bisexual Missourians can still be fired, kicked out of their homes, or denied service at a restaurant because of who they are and who they love," Rossi added.
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