Bloomberg Law
April 17, 2019, 10:18 AM

Sexual Orientation Bias at Work Goes Before Eighth Circuit

Erin Mulvaney
Erin Mulvaney

Mark Horton married his husband in Illinois. He got a job offer in Missouri.

The geographic distance between the neighboring states may not be great, but the legal divide is wide for the purposes of the sales executive’s discrimination lawsuit against Midwest Geriatric Management. He argues the St. Louis-based company rescinded his job offer after the owners discovered he’s gay. In Illinois, he would have the clear right to sue for sexual orientation discrimination, but in Missouri, he faces a legal hurdle.

Horton’s case, which will be argued April 17 before the U.S. Court of Appeals for the Eighth Circuit, will be the latest to examine where lesbian, gay, and bisexual individuals can bring such claims under federal law, an issue that has divided appeals courts, federal agencies, and a broad swath of interest groups. Illinois falls in an area where the Seventh Circuit in Chicago became the first appeals court to rule sexual orientation should be protected under Title VII of the 1964 Civil Rights Act. The Second Circuit in New York later followed suit, but other appeals courts have reached the opposite conclusion.

In the Eighth Circuit, those federal protections aren’t guaranteed.

“Illinois has one interpretation and Missouri has another. This isn’t theoretical. A whole different set of laws applied to him in Missouri compared to Illinois,” said Todd Anten, New York partner with Quinn Emanuel Urquhart & Sullivan. “That’s where we need to address this question on a uniform level. People aren’t neat. Jobs and lives cross borders.”

The U.S. Supreme Court is separately pondering whether it will take up pending cases that address sexual orientation bias in Altitude Express v. Zarda and Bostock v. Clayton County, GA. Another case, R.G. and G.R. Harris Funeral v. EEOC, is also pending and raises similar questions over whether gender identity should be protected.

Business Support, Agency Split

Quinn Emanuel’s Anten represents a coalition of 47 companies, including Microsoft Corp., Deutsche Bank, and Levi Strauss, who want the federal law to be guaranteed for their LGBT workers. The businesses, which include big-name retailers, tech giants, and financial institutions, are among a slew of interest groups that have weighed into the case and thrown their support behind the expanded protections for sexual orientation. A dueling coalition of state’s attorneys general also filed friend-of-the-court briefs in the case—one set of conservative states arguing against protections and progressive states in favor.

The Equal Employment Opportunity Commission supported Horton’s argument with a friend-of-the-court brief, as well. The agency has advocated since 2015 to expand the scope of Title VII to include sexual orientation and has filed lawsuits on behalf of gay and transgender workers. The agency reports that between 2013, when the EEOC began tracking the data, to 2017, there were 5,822 charges of sexual orientation discrimination.

The Justice Department under the Trump administration, however, has argued against that interpretation. Attorneys for the EEOC and Justice Department argued on opposite sides during arguments in the Second Circuit. The DOJ argues that Congress should be the body to expand protections, not the courts. Title VII doesn’t expressly name sexual orientation or gender identity in the statute, which extends protections under sex, race, national origin, color, and religion.

Even religious groups are divided with arguments across the spectrum. A coalition, including the Anti-Defamation League, supports Horton’s claim on the basis he was fired because his orientation clashed with religious beliefs. Conservative group The Becket Fund for Religious Liberty said the “potential conflicts between people of faith and those seeking to expand protections for LGBT individuals, are better resolved by the legislative process.”

“Sometimes a wolf comes as a wolf. This appeal is an open effort to enlist this Court as a combatant in the culture wars over LGBT rights and religion, with the eventual goal of creating a vehicle for Supreme Court review,” wrote the group’s counsel Eric Rassbach. “Happily, this Court need not sign up for this duty. Under Eighth Circuit precedent, there is no need for the Court to look past the clear language and well-understood historical scope of Title VII in resolving Plaintiff Mark Horton’s religious discrimination and sex discrimination claims.”

Company Denies Wrongdoing

Midwest Geriatric Management denies that it rescinded Horton’s job offer because of his sexual orientation, but instead pointed to a processing issue with his background check. Horton points to a casual email that he sent to his future employers, in which he mentioned his partner. He said the job offer was soon rescinded, after several weeks of enthusiasm about the new job.

“To be clear: Horton’s allegations of discrimination based on his sexual orientation are entirely untrue. More fundamentally, however, Horton’s legal theories—Title VII claims based solely on sexual orientation—fail as a matter of law,” wrote Lewis & Rice member Philip J. Mackey, one of the attorneys representing the company, in a court document.

The attorneys didn’t respond to requests for comment.

For decades, cases grappling with LGBT protections weren’t making the right arguments and even conservative judges could be swayed by the argument these rights should be protected, said Greg Nevins, an attorney with Lambda Legal Defense and Education Fund, representing Horton in the appeal. Lambda Legal has pushed the argument in recent years that sex discrimination includes sexual orientation because bias against a gay person implies that the employer doesn’t agree with the gender of that person’s partner.

“People weren’t making these arguments back then. This is a proving ground,” Nevins told Bloomberg Law. “Here we have a situation that leads to a politically liberal result. It is doing so by following a conservative judicial policy. You can’t discriminate against someone because of their sex. Sex means male or female, including the partner that person chooses.”

Oral argument is set in St. Louis before Judges James B. Loken, Roger L. Wollman, and David R. Stras.

The case is Horton v. Midwest Geriatric Mgmt., 8th Cir., No. 18-1104, oral argument 4/17/19.

To contact the reporter on this story: Erin Mulvaney in Washington at

To contact the editor responsible for this story: Jay-Anne B. Casuga at