By Jeremy Kohler, St. Louis Post-Dispatch October 31
CLAYTON — St. Louis County Executive Sam Page on Wednesday blasted the county legal staff for having argued that Sgt. Keith Wildhaber’s case should be dismissed because it is legal to discriminate against gay people in Missouri.
And County Counselor Beth Orwick said she also had instructed two lawyers working on the case not to make the argument and was mortified and surprised when they did it anyway.
Associate county counselors Michael E. Hughes and Frank J. Smith made the argument in the county’s motion for a directed verdict filed in the case, writing: “As the plain text reads, the (Missouri Human Rights Act) explicitly omits any reference to sexual orientation as a protected class.”
A jury in St. Louis County on Friday ordered the county to pay Wildhaber nearly $20 million for discrimination and retaliation by the county police. Wildhaber said he was advised to “tone down his gayness,” passed up for promotion 23 times and transferred to a precinct far from his home in retaliation for filing an EEOC complaint.
Hughes and Smith declined to comment.
Page said in a statement that he was “horrified and surprised that argument was used and I don’t want to see it used again. I have a general rule that I don’t manage departments, but this is going to be an exception.”
Orwick also said: “Many times, the best outcome is a settlement but there are many reasons that cases are not settled. In this case the Board of Police Commissioners decided not to settle.
“I am committed to a St. Louis County where nobody is discriminated against because of sexual orientation. No matter what state law says, sexual orientation discrimination is unacceptable. That is why on Friday ... I 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.”
The county executive’s comment came in response to a question raised on Wednesday during a legal roundtable on St. Louis on the Air, a program on St. Louis Public Radio station KWMU (90.7 FM).
In comments to the County Council on Tuesday, Page said that inclusion must “be a hallmark of county government” and that he had told county employees “that county government hasn’t always done a good job of addressing the unique challenges that women, people of color, and LGBTQIA+ employees face in the workplace.”
While Page has called for the county to “build a culture where all employees know they are valued and respected,” the person he chose in May to lead the county’s inclusion efforts also expressed a belief that it should be legal to discriminate against LGBT people when she served as a Democrat on the County Council.
Hazel Erby, the county’s director of diversity, equity and inclusion, was one of three members of the council who voted against a 2012 bill that added gender identity and sexual orientation to the county’s anti-discrimination regulations and hate crimes law. The bill passed 4-3. Voting in favor of it were the other four of the council’s five Democrats: Pat Dolan, Kathleen Burkett, Mike O’Mara and Steve Stenger.
In October 2007, Erby opposed a similar measure on the council because she said it was wrong to legislate morality. She did not like that the list of people it sought to protect from discrimination included transgendered people.
“I’m totally against discrimination of any kind, but I don’t compare being bisexual or transgender with being African American,” she told a Post-Dispatch journalist then. “I don’t think it’s right that you can hire a man one day and the next day he shows up as a woman.”
The St. Louis American said weeks later the quote was “bound for the St. Louis American’s year-end wrap-up as one of the most ignorant and insensitive things said by a local elected official ....”
Erby, in a written response Wednesday, said: “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. As a black woman, I know what it’s like to experience discrimination. Nobody should be treated unfairly because of their identity and our laws should protect everyone from discrimination.
“The history of African-Americans is different than the LGBT community’s experience. But that doesn’t mean the LGBT community deserves any less legal protection. I think the best person to lead the County’s diversity efforts would not be afraid of having difficult conversations, prepared to learn from people who are different than them, and grow based on life experiences. That’s who I am, and that’s how I will help lead the diversity, equity, and inclusion efforts in St. Louis County.”
Page didn’t say what he thought about Erby’s 2007 comments.
“He supports the statement Hazel made today,” said Page spokesman Doug Moore.
Doug Moore, a spokesman for Page, said the county executive had indicated before the trial that he did not want the claim to be made. “And, since then, he found out after the fact that it had indeed been filed, and that’s what prompted that response,” Moore said.
In his statement, Page added: “The state should pass the Missouri Nondiscrimination Act that I cosponsored in 2006 so no one can ever make that argument again.”
Orwick, too, urged the Legislature to pass the law, “so that this can never come up again.”
The act, known as MONA, would add sexual orientation and gender identity to Missouri’s Human Rights Act, which currently prohibits discrimination in employment, housing and public accommodations for other protected categories, including race, ancestry, disability, sex age (in employment only), familial status (in housing only) and national origin. The act has been filed in the Legislature for 20 years, but has never passed. Missouri remains one of 28 states that hasn’t enshrined discrimination protections for the LGBTQ community into state law.
Earlier this year, the Missouri Supreme Court ruled that it was illegal for employers to discriminate against people who don’t conform to gender stereotypes, calling it a type of sex discrimination.
Wildhaber and his attorney, Russ Riggan of the Riggan Law Firm, argued that the state’s existing laws against discrimination on the basis of sex provide all the protection necessary to bring a claim. The lawsuit argued the county police “refused to promote Plaintiff because he does not conform to the county’s gender-based norms, expectations and/or preferences.”
But the county argued that Wildhaber was confronted with homophobic comments, which are “at best inferences of discrimination on the basis of sexual orientation, which is not a recognized cause of action pursuant to the (Missouri Human Rights Act.)”