St. Louis County Lawyer Argued Law Doesn’t Protect Gay Cop From Discrimination
Updated at 8 p.m. Oct. 30 with comment from Hazel Erby, county director of diversity, equity and inclusion —
St. Louis County Executive Sam Page on Tuesday promised changes to police department leadership after a sergeant won a nearly $20 million discrimination suit by arguing that he was passed over for promotions because he is gay.
But a lawyer for the county last week argued that the judge should rule against Sgt. Keith Wildhaber because Missouri’s nondiscrimination act doesn’t include sexual orientation as a protected class.
Public speakers at a St. Louis County Council meeting on Tuesday questioned the department’s commitment to reform and the sincerity of the county’s response.
Police Chief Jon Belmar has not stepped down, despite calls for his resignation from some members of the public and one member of the county council.
County attorney Frank J. Smith Jr. filed a motion after witness testimony to request that the judge rule on the case before it went to a jury. Smith argued that discriminatory comments were “at best inferences of discrimination” because Wildhaber is gay, which is “not a recognized” form of discrimination under state law.
Page on Wednesday said in a statement to St. Louis Public Radio that he was “horrified and surprised that argument was used, and I don’t want to see it used again.”
He added: “I have a general rule that I don't manage departments, but this is going to be an exception. The state should pass the Missouri Nondiscrimination Act that I co-sponsored in 2006 so no one can ever make that argument again.”
The act, introduced annually in the Missouri House and Senate for 21 years, has never passed. It would add sexual orientation and gender identity as protected classes under the state’s nondiscrimination statute.
County Counselor Beth Orwick said in an emailed statement on Wednesday afternoon that she "specifically instructed the lawyers involved not to make this argument. I'm mortified someone would make this argument under my name. So I too was surprised that the argument was made. Given what happened, this will be handled as a personnel matter."
Hazel Erby, the county's director of diversity, equity and inclusion, wrote in a statement that "nobody should be treated unfairly because of their identity and our laws should protect everyone from discrimination."
But Erby, whom Page appointed to the role in May, had opposed a 2012 bill that added sexual orientation and gender identity to the county's anti-discrimination and hate crimes law. That law passed 4-3.
"When I served on the council, I represented my district and my votes reflected the views of my constituents. Now I serve everyone in this diverse county, " Erby said in the written statement. It continued: "The history of African Americans is different than the LGBT community's experience. But that doesn't mean the LGBT community desreves any less legal protection."
Wildhaber, the county sergeant, testified that a former member of the St. Louis County Board of Police Commissioners, John Saracino, said, “The command staff has a problem with your sexuality,” and, “You should tone down your gayness.”
Wildhaber also testified that retired Lt. Col. Terry Roberds said, “Your biggest career mistake was coming out of the closet.”
Tom Sullivan, a University City resident and self-described county watchdog, has criticized the county's approach to the case.
“County Counselor Beth Orwick completely failed to protect county taxpayers in the lawsuit,” Sullivan said. “She should have never let the case go to trial. Once it looked like the lawsuit was headed south for the county, she should have gotten it settled – for a whole lot less. That’s what smart lawyers do.”
The local laws
Missouri’s Human Rights Act prohibits discrimination based on sex. But it does not specifically name sexual orientation as a protected class.
Earlier this year, the Missouri Supreme Court ruled that sex stereotyping can be a form of sex-based discrimination. That means that making employment decisions because a worker is not stereotypically feminine or masculine could be illegal under Missouri law.
However, the court noted in a different case that being LGBTQ “cannot sustain a sex/gender stereotyping claim” on its own, according to the county's motion.
That was the basis for the county's argument that the case shouldn’t go to a jury. Smith, who was co-counsel on the case with attorney Michael E. Hughes, wrote that Wildhaber wasn’t claiming discrimination because he is “a ‘stereotypically feminine’ gay man,” so the comments wouldn’t count as sex-based discrimination.
Smith also argued that passing up Wildhaber for a promotion didn’t count as discrimination because another man, not a woman, was promoted instead.
Listen: St. Louis on the Air's Legal Roundable segment that discussed the case:
Correction: A previous version of this story misstated which attorney filed a motion requesting a judge rule against Sgt. Keith Wildhaber. Frank J. Smith Jr. signed the motion and was co-counsel on the case with Michael E. Hughes.
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Reporter Julie O'Donoghue contributed to this story.
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