Several years ago, I was approached by a transsexual who suffered severe harassment at work, and she needed my help, but I failed her. Day after day she faithfully reported for work, stylishly dressed and made up to hear the most vial and obnoxious comments from her co-workers and supervisors. she worked in a relatively large, conservative Missouri community for a large, national company. As distraught as she was, and as unfair as her treatment was, I could not figure out a way to help her.
Neither Missouri nor federal employment laws prohibit discrimination based on sexual preference or gender identification. In fact, The Daily Show on Comedy Central just ran a very funny segment on this issue, featuring a Missouri representative who seeks to make gun owners a protected class while sexual orientation is still unprotected.
Fortunately, both St. Louis and Kansas City have local ordinances banning LGBT employment discrimination, but these laws are toothless with no real enforcement provision in the ordinances. LGBT discrimination is unfair and unjust. In our office, we set about to creatively, yet legally combat this heinous discrimination. Mind you, before 1964, race and sex discrimination was just hunky-dory in most workplaces. My own mother recounts several stories in her youth when she was chased or mauled by some brutish bosses, with no remedy. When Rosa Parks refused to go to the back of the bus, it was SHE who violated existing law.
This is how we help clients combat LGBT discrimination:
1. We file a charge of discrimination alleging sex discrimination or sexual harassment under federal law, Title VII, or Missouri law, MHRA,since the working of the statute prohibits discrimination based on "sex" and not "gender."
2. The the employee works or worked in Kansas City , and has complained about LGBT discrimination, we file a lawsuit for whistleblowing since it is unlawful and against public policy to discriminate according to the city ordinance. We may use other common law doctrines, admittedly creatively, to reflect modern times and mores. This is proper because of the Kansas City ordinance, which states the public policy within the city limits. (Thank you Kansas City city council members for having the courage to pass this ordinance).
In a few years, people, or their children, are going to remember these times of LGBT harassment and discrimination with shame in their hearts. That time is near. I just want to prod the legal system a little to reflect what is just. LGBT harassment and discrimination is despicable and should not be tolerated. Hopefully, creative lawyering can help get the ball rolling.