The New War Between the States . . . Over Sexual Orientation

The battle lines are drawn between Union states and former Confederate states as to whether sexual orientation is a protected class for discrimination claims under Title VII of the Civil Rights Act. Although the division of states on this current issue does not correlate precisely with the sides taken in the Civil War, the similarity is striking.

In a case pending before the United States Court of Appeals for the Eighth Circuit, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, Washington, and the District of Columbia support treatment of sexual orientation as a protected class, siding with the appellant. All but Virginia were Union states or territories during the Civil War, though Hawaii was not yet a state.

Aligned with the respondent in opposition to sexual orientation as a protected class are Arkansas, Louisiana, Michigan, Missouri, Nebraska, Oklahoma, South Dakota, and Texas. Of those, Arkansas, Louisiana, Oklahoma, and Texas were squarely on the Confederate side, and Missouri was a border state that permitted slavery. Michigan was a Union state, and the Nebraska and Dakota territories were aligned with the Union. Why are Michigan, Nebraska, and South Dakota siding with these “Confederate” states on this debate? No doubt it’s because all three states have Republican governors and Republican attorneys general, and they are kowtowing to their supporters on the religious right.

Am I equating the LGBTQ community’s discrimination challenges with slavery? No, I am not. But I do find it compelling that the current battle for basic human rights is divided along state lines in a fashion similar to the dividing lines that existed during the Civil War. And make no mistake, this is a battle for basic human rights. However they might couch their arguments, the states supporting the respondent in the Eighth Circuit case are fighting for the right to discriminate against persons in the LGBTQ community. Here is some background on that case.

To date, the Eighth Circuit has not recognized sexual orientation as a protected class under Title VII. Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989). In the pending case, Horton v. Midwest Geriatric Mgmt., LLC, No. 18-1104 (8th Cir. 2018), appellant Mark Horton is a gay man who has been legally married to his husband since November 2014. He worked as a Vice President for Sales and Marketing for Celtic Healthcare. In February 2016, Midwest Geriatric Management (“MGM”) recruited him to become its Vice President of Sales and Marketing. After extensive interviewing and background checks, MGM offered Horton the position and he accepted.

Horton gave Celtic Healthcare notice of his resignation, and began the pre-employment process with MGM. Among the items needed were forms related to Horton’s education. In an email from Horton to one of MGM’s owners, Horton stated, “My partner has been on me about my MBA since he completed his PhD a while back.” That was Horton’s first mention of his sexual orientation to MGM. Five days later, MGM withdrew its employment offer, supposedly because of Horton’s failure to provide adequate background documentation.

Horton filed suit in the U.S. District Court for the Eastern District of Missouri. Among other claims, Horton alleged MGM withdrew its employment offer due to his sexual orientation in violation of Title VII. MGM moved to dismiss the complaint, arguing that sexual orientation is not a protected class. In an order dated December 21, 2017, the District Court agreed with MGM and dismissed the Title VII claim along with all other claims. Horton appealed to the Eighth Circuit.

On March 15, 2018, the “Union” states listed above, plus Virginia and the District of Columbia, filed an amicus curiae brief in support of Horton’s position that sexual orientation should be deemed a protected class. Those states are urging the Eighth Circuit to join the First, Second, Sixth, and Seventh Circuits, which have already ruled that way. Incidentally, twelve of the fourteen states represented in those four U.S. Circuits were Union states. The other two states are Kentucky (border) and Tennessee (Confederate), both in the Sixth Circuit.

On June 13, 2018, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Oklahoma, South Dakota, and Texas filed their amicus curiae brief in support of MGM’s position. Those states want the Eighth Circuit to join the Eleventh Circuit, which has already rejected protected-class status for sexual orientation. It should be noted that the Eleventh Circuit is comprised of three former Confederate states: Alabama, Florida, and Georgia.

As of the writing of this post, the Eighth Circuit has not yet scheduled the Horton case for oral argument. Ultimately, the split among the Circuits on this issue is likely to lead to a final determination before the United States Supreme Court.