- Sixteen states and the District of Columbia have filed a “friend of the court” brief in Mark Horton v. Midwest Geriatric Management, LLC, No. 18-1104, urging the 8th U.S. Circuit Court of Appeals to find that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sexual orientation.
- Mark Horton claimed that the company violated Title VII when it rescinded a job offer after learning that he is gay, in violation of Title VII. A district court disagreed, and Horton appealed.
- The states have asked the 8th Circuit to find that sexual orientation discrimination is a form of sex discrimination because it would not occur “but for” the employee’s sex. Additionally, sexual orientation discrimination is a form of associational discrimination because it is based on a protected classification — sex — of the individual with whom the employee associates. Finally, sexual orientation discrimination amounts to unlawful sex stereotyping because it concerns the employee’s failure to conform to sex-based stereotypes, the states say.
The federal appeals courts are split on the issue of sexual orientation discrimination. The 2nd and 7th Circuits have held such discrimination is sex discrimination prohibited by Title VII. The 11th Circuit recently took the opposition position.
The 6th Circuit recently ruled that discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is prohibited by Title VII.
And at the federal agency level, the U.S. Equal Employment Opportunity Commission continues to enforce its position against discrimination based on sexual orientation — even without the administration's support.
Although uncertainty likely will continue until the U.S. Supreme Court takes up the issue or Congress adds LGBTQ coverage to Title VII, employers should be aware that many state and local laws offer those protections already. And even in areas without such protections, management-side attorneys continue to recommend that employers refrain from taking adverse employment actions against employees because of their sexual orientation or transgender status.