UPDATE: Feb. 15, 2020: The parties settled this lawsuit for $10.25 million, according to local media, with the employer reducing its exposure and the plaintiff avoiding an appeal.
- A jury has awarded nearly $20 million to a police officer who alleged he was told the command staff had "a problem with [his] sexuality" and if he ever wanted a promotion, he would need to "tone down [his] gayness" (Wildhaber v. Saint Louis County, Missouri, No. 17SL-CC00133 (Circuit Court of St. Louis County, Mo., Oct. 25, 2019)).
- Keith Wildhaber applied for a promotion to a lieutenant position in 2014. He scored third out of 26 candidates after taking a written test and an assessment. As part of his job as seargent, Wildhaber checked on local restaurants in the evening as a safety precaution. The owner of one of the restaurants, who is a member of the board of police commissioners, told Wildhaber that "[t]he command staff has a problem with your sexuality." "If you ever want to see a white shirt," or get a promotion, Wildhaber alleged the owner told him, "you should tone down your gayness."
- Out of the nine applicants that scored the highest on the promotions test, only Wildhaber and another man described in Wildhaber's complaint as having a "history of disciplinary/performance issues" allegedly were not promoted to lieutenant. Wildhaber said he has "continued to be passed over for multiple promotions" and that he was not promoted because he does not conform to the County's gender-based norms, expectations and preferences.
According to reporting by St. Louis Today, a St. Louis county executive "blasted" the legal staff for arguing that Wildhaber's case should be dismissed because it is legal to discriminate against gay individuals in Missouri.
Employers face a patchwork of differing laws concerning LGBTQ discrimination. Many enacted laws that address discrimination based on sexual orientation and gender discrimination, while protections at the federal level remain unclear.
The U.S. Supreme Court heard arguments last month over whether the protected category of sex under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity. The 2nd U.S. Circuit Court of Appeals and 7th Circuit have held such discrimination is sex discrimination prohibited by Title VII. The 11th Circuit recently took the opposition position. The 6th Circuit ruled that discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is prohibited by Title VII.
Federal agencies are similarly divided. The U.S. Equal Employment Opportunity Commission continues to enforce its position against discrimination based on sexual orientation, while the U.S. Department of Justice has argued the contrary. Of course, employers can decide to adopt protections for LGBTQ applicants and employees, experts say, regardless of what the courts decide.