Daily Labor Report®

Gay Sales Executive Appeals Dismissal of Federal Sex Bias Claim

March 8, 2018, 7:31 PM

A gay sales and marketing executive has asked a federal appeals court to overturn a lower court’s rejection of his claim that a nursing care provider in St. Louis improperly pulled his job offer after he inadvertently disclosed his same-sex marriage.

With his filing in the U.S. Court of Appeals for the Eighth Circuit, Mark Horton becomes the latest worker to ask a federal appeals court to re-examine previous case law holding that federal anti-discrimination law doesn’t prohibit sexual orientation bias.

Just last week, the New York-based Second Circuit discarded the court’s decades-old precedent and ruled that the sex discrimination provisions of Title VII of the 1964 Civil Rights Act should be understood to bar bias against lesbian, gay, and bisexual workers. The Second Circuit’s Feb. 26 decision in Zarda v. Altitude Express Inc. followed the Chicago-based Seventh Circuit’s similar reversal of its prior case law last April. The Atlanta-based Eleventh Circuit, however, last March declined to change its view that Title VII doesn’t permit claims by lesbian, gay, and bisexual workers.

The cases are part of a nationwide court push by the LGBT community for recognition of job protections against discriminatory mistreatment after years of frustration in trying to get Congress to amend federal anti-discrimination law. Transgender workers scored a major victory on that front March 7 when the Sixth Circuit ruled that discrimination against a worker based on gender identity or because the person is transitioning between genders necessarily is sex discrimination that violates Title VII.

Horton Alleges Religious Bias, Too

Horton says Midwest Geriatric Management LLC recruited him away from his vice president role with a competitor in 2016 but then said it wouldn’t hire him after the company’s Jewish owners found out he is gay. By that point, he had quit his old job, leaving him unemployed and his career in tatters, he says.

He sued, but a federal district judge rejected his sex discrimination claim on the ground that the Eighth Circuit had decided long ago that bias against sexual orientation isn’t prohibited by Title VII. The circuit has authority over lower federal courts in Missouri, as well as those in Arkansas, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota.

LGBT rights advocate Lambda Legal Defense and Education Fund Inc., which together with a private law firm represents Horton, asked the Eighth Circuit March 7 to re-examine that earlier case and whether it truly bars sex discrimination claims based on bias directed at someone because of their sexual orientation. The court’s 1989 decision in Williamson v. A.G. Edwards and Sons, Inc. is nearly 30 years old and runs counter to “today’s legal landscape” as embodied by the Second and Seventh circuits’ recent rulings recognizing that lesbian, gay, and bisexual workers “are deserving of equal dignity,” Horton’s opening brief on appeal says.

Moreover, Williamson wasn’t even a sex discrimination case and instead involved race bias claims, Horton says. It thus was never really binding precedent in the first place on the question of whether Title VII’s sex bias provisions cover sexual orientation discrimination, he says.

The appeal also adds a slight twist to most other cases that have challenged Title VII’s protections for LGBT workers: Horton says the withdrawal of his job offer additionally amounted to religious discrimination. Title VII doesn’t just protect workers from discrimination because of their own religious beliefs and practices; it also shields them “from forced religious conformity,” he says.

That includes mistreatment of a gay man because his sexual orientation fails to square with his employer’s religious views, Horton says. A federal district court in the District of Columbia recognized a similar claim in a 2014 ruling.

The federal Equal Employment Opportunity Commission, which enforces Title VII against private employers, has sought permission to file a friend-of-the-court brief with the Eighth Circuit. The agency also adjudicates job discrimination claims brought by federal workers against their employers. A pair of administrative rulings in 2012 and 2015 reversing the EEOC’s long-held view that Title VII didn’t protect against discrimination based on sexual orientation or gender identity have been cited by LGBT advocates and by courts that have found the meaning of “sex,” and therefore the law’s scope, have evolved since Title VII was passed in 1964.

Counsel for Midwest Geriatric Management didn’t respond March 8 to Bloomberg Law’s request for comment.

Lambda Legal attorneys Gregory R. Nevins in Atlanta, Omar Gonzalez-Pagan in New York, and Sharon McGowan in Washington, and Mark S. Schuver and Natalie T. Lorenz of Mathis, Marifan & Richter Ltd. in Belleville, Ill., represent Horton. Michael L. Jente and Philip J. Mackey of Lewis & Rice in St. Louis represent the company.

The case is Horton v. Mw. Geriatric Mgmt., LLC, 8th Cir., No. 18-1104, opening brief on appeal 3/7/18.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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