NCLR, GLAD File Brief Urging Eighth Circuit to Find Sexual Orientation Discrimination Prohibited under Title VII
March 15, 2018
Brief argues that exclusion of LGBT people from Title VII’s protection is unworkable and unfair
ST. LOUIS, MO—Yesterday, the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Eighth Circuit to find that sexual orientation discrimination violates Title VII of the 1964 federal Civil Rights Act because it is a form of sex discrimination.
The brief argues that earlier court decisions dating back to the 1970s, which barred lesbian and gay people from bringing employment discrimination claims under Title VII, have led to what the Seventh Circuit Court of Appeals called a “confused hodge-podge of cases.” That exclusion has caused lower courts to reach inconsistent results and erected unique barriers to sex discrimination claims by lesbian, gay, and bisexual people that other employees do not face.
The case, titled Horton v. Midwest Geriatric Management, LLC, was brought by Mark Horton, who was offered a job as Vice President of Sales and Marketing, only to have the offer withdrawn after the company learned he had a same-sex partner. A U.S. district court in Missouri dismissed his Title VII claim based on a case from the 1980s stating that Title VII does not protect lesbian, gay, and bisexual people from discrimination. Horton is represented by Lambda Legal Defense and Education Fund.
“It’s impossible to discriminate against someone based on their sexual orientation without also discriminating against them based on their sex,” said NCLR Senior Staff Attorney Christopher Stoll. “For too many years, courts have suffered through the artificial and ultimately pointless exercise of trying to determine whether the discrimination and harassment faced by lesbian, gay, and bisexual workers on the job was because of their sexual orientation or because of their sex. That outdated and unworkable approach leads to unfair and inconsistent treatment of workers and unpredictable results for employers. It should be replaced with a clear rule that is faithful to the clear language of Title VII, which is that sexual orientation discrimination always involves sex discrimination.”
“It’s common sense that Title VII includes protections for lesbian, gay, and bisexual people when it forbids employment discrimination because of sex,” said GLAD Legal Director Gary Buseck. “Title VII has long forbade discrimination based on gender stereotyping, and sexual orientation is the ultimate case of failure to conform to gender stereotypes about the proper roles of men and women. In addition, you simply can’t define a person’s sexual orientation without identifying their sex. “
Within the past year, two federal courts of appeals, the New York-based Second Circuit and the Chicago-based Seventh Circuit, have overruled their previous precedent barring lesbian and gay people who experience workplace discrimination from bringing claims under Title VII. A favorable decision by the Eighth Circuit would extend federal sexual orientation nondiscrimination protections to workers in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, joining workers in Illinois, Indiana, Wisconsin, New York, Connecticut, Vermont, and the U.S. Virgin Islands, who already enjoy those protections because of the recent decisions.