Supreme Court Bostock Ruling Confirms Scope of Title VII Includes Protections for Homosexuals, Invalidating Prior Eighth Circuit PrecedentAugust 4, 2020 | Brandy Simpson
In Horton v. Midwest Geriatric Mgmt., LLC, Mark Horton filed a Title VII sex discrimination case against Midwest Geriatric Management, LLC (“MGM”) following withdrawal of an employment offer, after Midwest Geriatric Management became aware that Horton was gay and had a partner.
Horton was the Vice President of Sales & Marketing for Celtic Healthcare. He was recruited by a job search firm for the position of Vice President of Sales and Marketing for a company named Midwest Geriatric Management. After applying for the job, he received an offer of employment pending a background check and further confirmation of his educational history. Horton signed the job offer to work for Midwest Geriatric and resigned from his position at Celtic.
Because one of his former colleges no longer existed (it had been sold to another university), the company retained to complete Horton’s background check informed him that the background check would take four to six weeks to complete. Horton communicated this delay to all the parties involved including Midwest Geriatric CEO Judah Bienstock and his wife Faye, who was involved in the hiring process. None voiced any concern. In a subsequent email to Bienstock about the status of obtaining his educational records, Mark stated, “My partner has been on me about [my MBA] since he completed his PHD a while back.” A few days later, Mark received an email stating, “Mark—I regret to inform you that due to the incompletion of the background check of supportive documentation—we have to withdraw our offer letter for employment at MGM. We wish you much luck in your future endeavors. Judah and Faye.” Even after Mark obtained his college records and contacted MGM while the position was still vacant, Faye said, “At this time—we are considering other candidates.”
Horton filed a Charge of Discrimination with the Equal Employment Opportunity Commission, alleging sex discrimination and religious discrimination under Title VII. After receiving his right-to-sue notice from the EEOC, Horton sued in the U.S. District Court for the Eastern District of Missouri.
Horton’s lawsuit alleged Midwest Geriatric unlawfully discriminated against him on the basis of sex when his offer of employment was withdrawn after learning he was homosexual. Specifically, Horton argued: 1) they treated him less favorably because of his sexual orientation, or based on his sex; 2) they treated him less favorably because of his association with a person of a particular sex, i.e. the same sex; and 3) they treated him less favorably on the basis of his nonconformity with sex stereotypes and MGM’s preconceived definition of how males should behave.
In granting Defendant’s motion to dismiss, the District Court relied on the Eighth Circuit’s 1989 holding in Williamson v. A.G. Edwards & Sons that had concluded “Title VII does not prohibit discrimination against homosexuals.” Williamson v. A.G. Edwards & Sons, Inc. 876 F.2d 69, 70 (8th Cir. 1989). The District Court further held that sexual orientation is not an explicitly protected characteristic under Title VII. The Court acknowledged numerous federal courts had recently held otherwise, but noted the Eighth Circuit had not changed its position on the issue, so they were bound by Williamson.
Additionally, because Horton’s claim of sexual stereotyping was admittedly based solely on his sexual orientation, the District Court concluded sexual stereotyping alone could not be the alleged gender non-conforming behavior giving rise to a Title VII claim in Horton’s case, because “[t]o hold otherwise would be contrary to well-settled law that Title VII does not prohibit discrimination on the basis of sexual orientation.”
Horton appealed to the Eighth Circuit, but the appeal was stayed pending the United States Supreme Court’s consideration of the “scope of Title VII’s protections for homosexual and transgender persons,” in Bostock v. Clayton County, and other related cases. In its Bostock ruling, the Supreme Court declared plainly that it “defies” Title VII for “an employer to discriminate against employees for being homosexual or transgender,” because to do so, it “must intentionally discriminate against individual men and women in part because of sex.” The Eighth Circuit therefore reversed, based on the Bostock decision, reasoning that because the Supreme Court has held sexual orientation to be a class protected under Title VII, the Williamson case relied upon by the Eastern District in dismissing Horton’s claim, was no longer good law. The case was remanded to the district court for further proceedings in light of the Bostock holding.
* Kameron Fleming, Summer Law Clerk in the St. Louis office of Baker Sterchi, assisted in the research and drafting of this post. Fleming is a rising 3L student at the Washington University St. Louis School of Law.
In a high-profile and much anticipated ruling, the U.S. Supreme Court held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 applies to discrimination based on a worker’s sexual orientation or gender identity.
In a 6-3 decision authored by Justice Gorsuch, the Court pointed to the “plain meaning” of the language of Title VII and held that "Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII." Justices Kavanaugh, Alito, and Thomas dissented.
The Court reasoned that “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The decision covered three related cases. It resolves a long brewing split among the federal circuits and affirms a Seventh Circuit ruling allowing a lesbian professor’s wrongful termination lawsuit to move forward. The Justice Department argued against the workers in these cases, in a shift from the previous administration’s position supporting the rights of LGBTQ workers.
The ruling is of particular importance in those states where state civil rights laws have been held not to apply to discrimination based on sexual orientation or gender identity.
Inaccurate Background Reports Concerning Job Applicants May Give Rise to Employer Liability under FCRAJune 4, 2020 | Megan Stumph-Turner
The Missouri Court of Appeals recently reversed a trial court’s order for summary judgment in favor of an employer in a case brought under the Fair Credit Reporting Act (“FCRA”) for lack of standing, where the employer withheld an offer of employment based on inaccurate information obtained through a criminal background check.
In Courtright, et al. v. O’Reilly Automotive, three applicants filed suit asserting, among others, adverse-action claims against O’Reilly after their conditional job offers were revoked based upon information obtained from consumer reports and background checks. Plaintiffs alleged that O’Reilly committed procedural violations of FCRA by failing to disclose the contents of each applicants’ background reports and providing them the opportunity to cure any inaccuracies in the reports before taking adverse action against them – i.e., revoking each of their conditional offers of employment. The trial court entered summary judgment in favor of O’Reilly, and the three applicants appealed. The judgments against two of the three applicants were affirmed due to their failure to allege sufficient injuries to establish standing to bring a claim under FCRA, as the allegations in the complaint did not establish that the procedural violations of FCRA were the cause of their alleged harm.
However, the Court of Appeals for the Western District of Missouri found that the third applicant, Mr. Bradley, did state sufficient injuries caused by the procedural violation. Bradley demonstrated that he was not provided the background check results before his offer of employment was revoked. He instead had to request the background report from the third party vendor used by O’Reilly and to correct the issues directly with that vendor. He learned that the report erroneously stated that Mr. Bradley had been convicted and sentenced for stealing leased or rented property. After Mr. Bradley disputed the report in writing, the vendor corrected the report and provided it to O’Reilly. O’Reilly then hired Mr. Bradley, but not until after he had gone approximately two months without a paycheck.
The trial court had held that the alleged injury was caused by the inaccurate information provided by the third party vendor and entered judgment in favor of O’Reilly on that basis. But the Court of Appeals reversed the judgment, reasoning that if O’Reilly had furnished the report to Mr. Bradley before revoking the job offer, as required under FCRA, Mr. Bradley would have had the opportunity to resolve the error and avoid his period of unemployment.
Based upon this Court of Appeals holding, Missouri employers are strongly advised to promptly inform job applicants of any negative, material information found in background checks before taking any adverse action against the applicant, regardless of where and how the information was obtained.
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