Police departments across the country have had problems recruiting a diverse and inclusive workforce. But they don’t do themselves any favors when they allow sexual stereotypes to affect hiring and promotions decisions. One Missouri police officer’s “gayness” prevented promotion and prompted a gender discrimination lawsuit.

In this blog, I will review Wildhaber v. St Louis County, MO, filed in Missouri state court. I will explain how federal Title VII civil rights law applies to sexual orientation and retaliation, and explain how an employment discrimination attorney can help you get the compensation you need.

Police Officer’s “Gayness” Influences Promotion Decisions

According to a lawsuit filed in Missouri state court, St. Louis County police officer Keith Wildhaber was passed over for promotion for years because of his perceived “gayness.” The complaint, filed January 10, 2017 alleges that Wildhaber, who had an exception work history, was denied multiple promotion opportunities based on his managers’ expectations around sexual stereotypes.

The following is based on the allegations in the complaint:

A 4-year army veteran, Wildhaber has worked as a police officer for the St. Louis Police Department since he graduated police academy in 1997. In 1998, he received a Medal of Valor for saving a man trapped in a burning car. He was promoted to Sergeant in 2011, and assigned to the desirable location of Affton Precinct. In 2014, Wildhaber took the promotions test for a lieutenant position. Of 26 applicants, he scored 3rd.

But despite his high rankings, Wildhaber was placed toward the bottom of the promotion list. In February 2015, rather than promoting him to fill a vacant position, the managers opened applications again. Wildhaber tested again, and again placed third. A year later, Wildhaber had been passed over for the lieutenant position again.

In the midst of this process, Wildhaber spoke with one of the St. Louis County Board of Police Commissioners, who allegedly told him the command staff had “a problem with your sexuality.” The Commissioner said:

“If you ever want to see a white shirt (i.e., get a promotion), you should tone down your gayness.”

When the police officer filed complaints about this statement, and the management’s discriminatory hiring practices, he faced retaliation. According to the lawsuit, he was transferred from a second-shift position in Affton to a midnight shift 20 miles away in Jennings.

Title VII and Sexual Orientation Discrimination

Title VII of the federal Civil Rights Act prohibits employment discrimination based on:

• Race
• Color
• Religion
• National origin
• Sex

The law does not explicitly protect against discrimination based on sexual orientation or gender expression. However, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court ruled that discrimination based on a person’s failure to conform to an employer’s sexual stereotypes was illegal under Title VII. A decade later, these protections were extended to cover sexual orientation in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

Under the Obama Administration, beginning in 2012, the Equal Employment Opportunity Commission began interpreting Title VII to include protection against discrimination based on sexual orientation and gender identity. However, with the recent changes in administration, any future EEOC efforts to protect gay, lesbian, bisexual, and transgender employees are highly questionable.

Retaliation and Title VII

Federal civil rights laws, including Title VII, explicitly prohibit retaliation by employers against employees who raise civil rights concerns. This includes lodging internal civil rights complaints, filing EEOC charges, acting as a witness, or pursuing the employee’s rights in court. It doesn’t matter if the case is successful. Even actions taken to prevent perceived civil rights violations are protected under the statutes.

Retaliation is a broad term, including any adverse employment action. In Wildhaber’s case, this took the form of reassignment to a distant precinct and the midnight shift. In other cases it could include firing, demotion, negative performance reviews, limited job assignments, or any other efforts by employers to discourage a person from filing their complaints.

EEOC Changes Don’t Change Title VII

The Missouri Commission on Human Rights won’t be helping Wildhaber. The organization issued a “Notice of Right to Sue” on January 10, 2017. But that doesn’t mean his case is over. In fact, it has just begun. His employment discrimination attorney has filed a complaint in state court based on Title VII and similar state civil rights laws. The private lawsuit is based on the same legal theory: that employment decisions made based on a police officer’s “gayness” are illegal gender discrimination based on sexual stereotypes.

The cases against sexual orientation discrimination survive any changes in administrative enforcement by the EEOC or a presidential administration. Private employment discrimination attorneys can use these cases to get LGBT employees protection and damages when they face discrimination at work. In Waldhaber’s case, his lawyers are requesting:

• Back pay (wages lost because he was not promoted)
• Front pay (wages that continue to be lost unless he is promoted)
• Money compensation for emotional distress and humiliation
• Promotion within the department
• Punitive damages (designed to keep his employer from doing the same thing in the future)
• Court costs, attorney fees, and interest.

Similar money damages and “injunctive” relief may be available in a wide variety of sexual orientation discrimination claims. Right now, courts disagree on whether Title VII applies to LGBT claims. However, in many jurisdictions, these cases can be filed as a form of gender discrimination. That will remain true, regardless of EEOC enforcement policies, unless and until the Supreme Court says otherwise.

LGBT employees face tough employment discrimination, especially in industries that rely on sexual stereotypes. If you believe you have been passed over for promotion because of your “gayness”, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your case and help you understand your chances in the EEOC and in your court. Contact us to arrange a consultation to get help today.