It’s safe to say that, when Missouri’s laws on sexual orientation discrimination are finally settled, Russ Riggan’s biggest case of the year will have played a huge role.
Riggan, founder of the Riggan Law Firm in St. Louis, represented Keith Wildhaber, a gay St. Louis County Police Department sergeant who alleged that he was passed over for multiple promotions because he didn’t fit stereotypical male norms. Wildhaber testified that the department had a problem with his sexuality and that he was told to “tone down” his “gayness” if he wanted to be promoted.
On Oct. 25, a St. Louis County jury awarded Wildhaber $19.97 million on claims of sex discrimination and retaliation under the Missouri Human Rights Act. Following the verdict, Circuit Judge David Lee Vincent III added $673,500 in attorneys’ fees and $7,900 in costs, bringing the total judgment to more than $20.6 million.
“I think [jurors] were really angry about how the county handled this whole situation, and I think the verdict is reflective of that,” Riggan said.
Despite the jury’s strong message, the law underlying it remains, as Riggan acknowledged, “not fully developed.”
“We’ve always liked the facts of our case,” he said. “Not that we disliked how the law applied to it. It’s just that our case resonated very well factually with the jury. Could the law be developed a little more fully, and will it become so? I believe it will. But we never viewed that as an impediment to our case.”
Missouri law doesn’t explicitly prohibit discrimination on the basis of sexual orientation. Riggan, however, framed Wildhaber’s case based not on his sexual orientation itself but rather on county officials’ reaction to it. The Human Rights Act prohibits discrimination on the basis of sex, which courts long have held includes employees who are faulted for failing to fit an idea of what someone of their sex should look like and act like.
Wildhaber’s argument got a boost in February 2019, when the Missouri Supreme Court ruled in Lampley v. Missouri Commission on Human Rights that a gay state employee could continue with a sex discrimination suit based on evidence of sexual stereotyping. The plaintiff’s sexual orientation, the court said “is incidental and irrelevant to sex stereotyping.” The ruling, however, didn’t say whether such a claim ultimately could be successful.
Riggan noted that he took Wildhaber’s case in 2016, long before the Lampley ruling. But he thought the facts of Wildhaber’s case fit the law that was developing.
“It was, as I saw it, a failure to conform to a behavioral standard,” he said.
The case is the highest-profile matter Riggan’s two-attorney employment-law firm has handled since opening in 2011. After earning his law degree from Washington University in 2001, Riggan spent about 10 years combined at Armstrong Teasdale and Lewis Rice before deciding to open his own shop.
The verdict has caused upheaval in St. Louis County. Wildhaber since has been promoted to lieutenant, but officials have struggled with how to respond to the legal arguments it raised.
In a motion for a new trial, lawyers for the county argued its leaders find the lack of legal protections for gay people to be “outrageous.” But the law is clear, they wrote, and the jury should not have been permitted “to adjudge an un-pleaded claim that Plaintiff knows does not exist” under the Human Rights Act.
As of press time, the judge had not ruled on the county’s motion. Depending on the outcome, the case could wind up before an appellate court and result in a ruling that clarifies law.