Lambda Legal Presses Fight for Federal LGBT Employment Discrimination Protection in New Appeals Court Case

Lambda Legal and co-counsel Mathis, Marifian & Richter, LTD. filed an appeal with the U.S. Court of Appeals for the Eighth Circuit on behalf of Mark Horton, a healthcare sales specialist whose job offer at St. Louis-based Midwest Geriatric Management (MGM) was withdrawn when the employer learned Horton is gay.

This is the fourth federal appeal in Lambda Legal’s quest to secure the discrimination protections of Title VII of the Civil Rights Act of 1964 for lesbian, gay, and bisexual workers. It comes just one week after the full Second Circuit Court of Appeals ruled in favor of the estate of Donald Zarda, a skydiving instructor fired for being gay, and less than a year after the landmark decision of the full Seventh Circuit in Lambda Legal’s lawsuit, Hively v. Ivy Tech Community College, extending Title VII’s protections to a college instructor denied a fulltime job and ultimately fired because she is a lesbian.  Lambda Legal argued before both those courts. 

“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. Thanks to the landmark decisions by the Second and Seventh 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,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal. “The only metric employers or prospective employers should use is: is the candidate or employee qualified? 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.”

“Midwest Geriatric Management basically ended my career,” Horton said. “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 When MGM rescinded the offer, suddenly I was jobless.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.”

Lambda Legal’s involvement in this case, as well as Zarda v. Altitude Express in the Second Circuit, Hively v. Ivy Tech in the Seventh Circuit, and Evans v. Georgia Regional Hospital in the Eleventh Circuit, is a part of a national effort to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. In addition to the sexual orientation cases, these efforts include an historic win for transgender workplace rights in Glenn v. Brumby and the current lawsuit Karnoski v. Trump challenging the ban on transgender troops. The current cases are all part of Lambda Legal’s Out at Work campaign to bring awareness to LGBT people everywhere of their Title VII rights, and assert that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.

In February 2016, Horton, then vice president for sales and marketing for Celtic Healthcare, was approached by an executive search firm hired by Midwest Geriatric Management, a Celtic Healthcare competitor, to fill a similar position at MGM. While Horton was not actively looking to leave Celtic at that time, MGM’s representative persuaded him that it would be worth his while, so Horton decided to apply. After an extensive assessment and interview process, in mid-April, 2016, Horton received a written job offer from MGM’s owners, Judah and Faigie (Faye) Bienstock. Horton accepted the offer on May 4, and received an enthusiastic reply email from Faye Bienstock welcoming Horton to MGM. Based upon both the written offer and the enthusiastic reply, Horton notified Celtic Healthcare that he would be leaving.

In the course of finalizing his start date and tracking the last remaining academic records for MGM’s background check, Horton had several communications with Faye Bienstock, none of which indicated any issue. Then, on May 17, in an email updating Bienstock on the status of the academic records search, Horton revealed he was in a same-sex relationship when he wrote: “My partner has been on me about [my MBA] since he completed his PhD a while back.” Five days later, Bienstock wrote Horton withdrawing the offer of employment.

“This should never have happened,” co-counsel Mark S. Schuver said. “Mark was not actively looking to leave Celtic Healthcare; MGM recruited him. And it was only after receiving the written offer and the enthusiastic emails that Mark notified Celtic he was leaving. And he was certainly not hiding his sexual orientation, nor should he have to. This has been devastating for Mark and his family and we hope the Eighth Circuit will follow the examples of the Second and Seventh Circuits and confirm that Title VII protects you no matter whom you love or how you identify.”

Schuver and Natalie T. Lorenz of Mathis, Marifian & Richter, LTD, represented Horton in the lawsuit filed last August in the U.S District Court for the Eastern District of Missouri. The lawsuit was dismissed, and Lambda Legal joined the case in its appeal to the Eighth Circuit.