Another federal appeals court will soon decide whether Title VII prohibits sexual orientation discrimination.
Right now, we have three U.S. appeals court decisions directly addressing whether the Title VII ban on sex discrimination applies to sexual orientation discrimination. Here's the scorecard:
Second Circuit: Yes, it does. (Zarda v. Altitude Express)
Seventh Circuit: Yes, it does. (Hively v. Ivy Tech)
Eleventh Circuit: No, it doesn't. (Evans v. Georgia Regional Hospital)
Now the issue is coming up again. In the case of Horton v. Midwest Geriatric Management, the U.S. Court of Appeals for the Eighth Circuit will rule on the issue, and it should be a donnybrook.
Don't know your federal appeals circuits?
This guide will come in very handy today.
The lawsuit -- alleging sexual orientation discrimination, religious discrimination, and fraudulent inducement -- was dismissed last December by a federal judge in Missouri.
Horton is a failure-to-hire case. (Because the lawsuit was dismissed at the early stages, we have yet to hear the employer's side of the story. However, the employer does deny that it refused to hire Mr. Horton because of his sexual orientation.)
According to his lawsuit, Mark Horton was recruited by Midwest while he was working for a competitor. Mr. Horton is gay and is in a legal same-sex marriage. The owners of Midwest are Jewish.
The lawsuit says that the owners ardently pursued Mr. Horton and made an offer to him after his interview, pending his completion of a background check and a pre-hire assessment. There were apparently some problems related to his educational background check (here is where I'd love to hear the employer's side of the story). In any event, Mr. Horton accepted Midwest's offer of employment and quit his job. While they were still waiting for his educational background check to clear, Mr. Horton sent an email to one of the owners making reference to his "partner" and referred to the partner using the pronoun "he." Shortly afterward, the offer was withdrawn.
Mr. Horton tried again after he got his educational information (about a month after Midwest withdrew its offer of employment, but before Midwest had filled the position) and was politely told in so many words, "Don't call us - we'll call you."
His claim of sexual orientation discrimination was based on Title VII, but the federal judge in Missouri threw it out because current Eighth Circuit authority says that Title VII does not prohibit sexual orientation discrimination.
Mr. Horton also asserted a creative claim of "religious discrimination," saying that he had religious beliefs in same-sex marriage that conflicted with the owners' traditional Jewish beliefs. The district court said that this was just a disguised claim for sexual orientation discrimination, and threw it out.
The fraudulent inducement claim was dismissed on the ground that no fraudulent misrepresentation of fact was made to induce him to accept employment with Midwest. In fact, according to Mr. Horton's own account, the owners were genuinely excited to hire him -- until they found out that he was gay and married to a man.
Of course, the main issue at the Eighth Circuit will be whether sexual orientation discrimination violates Title VII. Among those filing "friend of the court" briefs on Mr. Horton's side are the Equal Employment Opportunity Commission, the American Civil Liberties Union, numerous women's rights organizations, numerous LGBT rights organizations, and the Anti-Defamation League. In addition, the Eighth Circuit states of Iowa and Minnesota have sided with Mr. Horton -- along with Illinois (Seventh Circuit), California (Ninth Circuit), Connecticut (Second Circuit), Hawaii (Ninth Circuit), Maryland (Fourth Circuit), Massachusetts (First Circuit), New Jersey (Third Circuit), New Mexico (Tenth Circuit), New York (Second Circuit), Oregon (Ninth Circuit), Vermont (Second Circuit), Virginia (Fourth Circuit), Washington (Ninth Circuit), and the District of Columbia (uh, District of Columbia Circuit).
Also, a slew of businesses have sided with Mr. Horton, including Airbnb, Dropbox, PayPal Holdings, Viacom, Microsoft, and Morgan Stanley.
On the side of Midwest, we have a "friend of the court" brief filed by the Becket Fund for Religious Liberty. In addition, the attorneys general of the Eighth Circuit states of Arkansas, Missouri, Nebraska, and South Dakota -- along with the AGs of Louisiana (Fifth Circuit), Michigan (Sixth Circuit), Oklahoma (Tenth Circuit), and Texas (Fifth Circuit) -- have submitted a brief in support of Midwest.
Should be quite a fight! Oral argument is not yet scheduled, but we will continue to follow this case.
Also, as I've reported here before, the employer has asked for the U.S. Supreme Court to review the Second Circuit decision in Zarda v. Altitude Express. We will obviously continue to follow that one, too!
Written by Robin Shea
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.