Mark Horton and his husband – Photo: Lambda Legal.
Lambda Legal is asking the 8th U.S. Circuit Court of Appeals to hear the case of a man who believes an employer withdrew a job offer after learning he was gay.
The organization hopes to overturn a lower court’s decision throwing out a lawsuit brought by Mark Horton, of St. Louis, Missouri, who claims Midwest Geriatric Management rescinded an offer when they discovered he was married to another man.
Horton was working as vice president for sales and marketing at Celtic Healthcare in January 2016 when he was actively sought out and recruited by an executive search firm hired by MGM, a competitor, to fill a similar position.
While Horton had not been intending to leave Celtic, MGM’s head hunter encouraged him to apply, which he did. After an extensive application and interview process, Horton received a written job offer from the company’s owners, Judah and Faigie (Faye) Bienstock, in April 2016.
Horton accepted the job, and received an enthusiastic reply from Faye Bienstock welcoming him to MGM.
Horton subsequently informed Celtic Healthcare that he would be leaving. During the course of finalizing his transition and providing academic records for MGM’s background check, he wrote an email to Bienstock informing her on the status of the records search. Horton wrote: “My partner has been on me about [my MBA] since he completed his PhD a while back.”
On May 22, five days after sending that email, Horton received notification from Faye Bienstock that MGM was withdrawing its offer of employment.
“Midwest Geriatric Management basically ended my career,” Horton said in a statement. “I left my previous job to accept a great offer at MGM, a position that I had been recruited for. When MGM rescinded the offer, suddenly I was jobless. I am still trying to put the pieces back together. Being able to be open and bring my whole self to my work has been an asset, and I have the track record to prove it.”
In August 2017, Horton sued MGM in federal court, maintaining that the company had unlawfully discriminated against him.
In his complaint, Horton accused MGM of sex-based discrimination, writing: “MGM treated [Horton] less favorably because of his sexual orientation, which is necessarily discrimination based on sex.”
The claim states that MGM treated Horton less favorably “because of his association with a person of a particular sex” — namely, his husband, and that MGM also discriminated against Horton “based on his nonconformity with sex stereotypes and MGM’s preconceived definition of how males should behave.”
But the U.S. District Court for the Eastern District of Missouri dismissed the lawsuit. Horton’s lawyers then enlisted the help of Lambda Legal, which joined in appealing the lower court’s decision to the 8th U.S. Circuit Court of Appeals.
Horton’s lawsuit marks the fourth such federal appeal in which Lambda Legal has argued that discrimination based on a person’s sexual orientation is a form of sex discrimination that should be prohibited under Title VII of the Civil Rights Act.
Last year, the 7th Circuit Court of Appeals ruled that an Indiana community college had unlawfully discriminated against a college adjunct professor by denying her full-time employment because she was a lesbian. Last week, the 2nd Circuit Court of Appeals ruled that a skydiving company had discriminated against a now-deceased skydiving instructor, in violation of Title VII, when it fired him because he was gay.
Lambda Legal also previously argued that a Georgia hospital had similarly discriminated against a lesbian security guard because of her sexual orientation and failure to adhere to stereotypically feminine standards of dress and behavior.
However, the 11th Circuit Court of Appeals rejected the woman’s appeal, and then refused to rehear the case when she asked for an en banc hearing in which all sitting members of the circuit court would decide whether her sex discrimination lawsuit could move forward. The U.S. Supreme Court also refused to take up the case.
“We have taken huge strides in ensuring that federal courts across the country recognize that sexual orientation discrimination is a form of sex discrimination prohibited by federal law,” Greg Nevins, Lambda Legal’s Employment Fairness Project Director, said in a statement. “Thanks to the landmark decisions by the 2nd and 7th Circuits, we have the wind on our backs and progress towards the correct understanding that the Civil Rights Act covers LGBT workers now is as inexorable as it is inevitable.
“The only metric employers or prospective employers should use is: is the candidate or employee qualified?” added Nevins. “Mark’s case was textbook discrimination by any standard. It was all systems go until MGM realized Mark is gay and withdrew the job offer.”