Policing Gender Stereotyping

By Alyssa Levy

A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st  Cir. October 25, 2019).  The plaintiff said the police department passed him over for promotion 23 times, and transferred him from his afternoon shift to an overnight shift at a precinct nearly 30 miles from his home.  The plaintiff received “advice” from a Police Department board member to “tone down the gayness” in order to receive a promotion, and senior commanders referred to the plaintiff as “fruity.”  

For the discrimination claim, the jury awarded $1.98 million in actual damages and $10 million in punitive damages. For his retaliation claim, the plaintiff received $999,000 in actual damages and $7 million in punitive damages. The County will likely appeal the damage award, but the jury’s message broadcasts loud and clear: discrimination based on gender stereotyping in today’s work environment is appalling.  

The extraordinary damages award in Wildhaber is based on the U.S. Supreme Court decision on gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Price Waterhouse passed over Ms. Hopkins for promotion and told her she needed to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.”  The Court held that gender stereotyping is a form of sex discrimination.

Thirty years later, there is still a fight at the federal level to define sex discrimination under the law. On October 8, 2019, the Supreme Court heard three cases on the issue of whether sexual orientation and gender identity should be covered by the existing federal ban on “sex discrimination” under Title VII.  These cases are Altitude Express v. Zarda, Bostock v. Clayton Cty., Ga, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC.  If the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping.