Gay officer wins $20M sex-discrimination suit against St. Louis County

After a five-day trial, a St. Louis County Police Department sergeant won a nearly $20 million jury verdict on claims of sex/gender discrimination and retaliation under the Missouri Human Rights Act.

Keith Wildhaber, who is gay and a 25-year veteran of the force, claimed that despite strong performance reviews he was passed over for multiple promotions at least in part because police leadership believed his “behavior, mannerisms, and/or appearance do not fit the stereotypical norms of what a ‘male’ should be.”

While the MHRA bans discrimination based on “race, color, religion, national origin, sex, ancestry, age or disability” it does not list sexual orientation as a protected class. In a motion for a directed verdict filed Oct. 25 at the close of evidence, Associate County Counselors Michael E. Hughes and Frank J. Smith argued that Wildhaber was in essence trying to smuggle a claim based on sexual orientation into court under the guise of a claim based on sex or gender.

At trial, Wildhaber testified that a former member of the St. Louis County Board of Police Commissioners told him the command staff had a problem with his sexuality and that he should “tone down” his “gayness.” Wildhaber further testified that a retired lieutenant colonel told him his “biggest career mistake was coming out of the closet.” A different witness testified that one of Wildhaber’s direct superiors had said Wildhaber wouldn’t get promoted because he was “too gay,” “too out there,” and needs to “tone it down.” Wildhaber also alleged that a “culture of anti-homosexuality” in the department.

UPDATE: St. Louis County, Wildhaber agree to $10.25M settlement after verdict

The associate county counselors wrote in their motion that Wildhaber “appears to be attempting to circumvent the MHRA’s omission of sexual orientation as a protected class . . . by alleging sex/gender discrimination through sex/gender stereotyping.”

After trial, that line of argument by the county drew public criticism from St. Louis County Executive Sam Page. County Counselor Beth Orwick issued a statement disavowing it as a legal strategy.

“Sexual orientation discrimination is unacceptable,” Orwick wrote. “I specifically instructed the lawyers involved not to make this argument. I’m mortified someone would make this argument under my name . . . Given what happened, this will be handled as a personnel matter. The state legislature should change this law so that this can never come up again.”

Since at least 1998, legislators have filed bills in the Missouri General Assembly to add sexual orientation as a protected class in the MHRA, but those efforts have foundered so far.

In February, the Missouri Supreme Court ruled in Lampley v. Missouri Commission on Human Rights that an employee may demonstrate sex discrimination “through evidence of sexual stereotyping” and that “sexual orientation” — for example, being gay — “is incidental and irrelevant to sex stereotyping.”

As for Wildhaber’s retaliation claim, he alleged that the month after he first filed federal and state discrimination complaints, the department transferred him from the afternoon shift in Affton to the midnight shift in Jennings, which he considered an “undesirable” transfer — or what some in the department refer to as a “geography lesson,” according to court records.

As reported by the St. Louis Post-Dispatch, Chief Jon Belmar testified at trial that one of the main reasons Wildhaber wasn’t promoted in 2016 was that the sergeant had allegedly tipped off the subject of an FBI investigation — an allegation that Wildhaber has denied and that never resulted in any discipline against him.

Orwick said her office “is in the process of exploring our legal options moving forward.”

Wildhaber’s attorneys, Russell C. Riggan and Samuel W. Moore of the Riggan Law Firm in Kirkwood, said in a statement: “We are ecstatic for our client, and it has been an honor and a privilege to have been part of this historic verdict. This has been a long and difficult road for Keith.”

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