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8th Circuit Waiting on SCOTUS Decision on LGBTQ Workplace Rulings

Photograph of a rainbow flag against a clear blue sky.
By William Vogeler, Esq. on May 07, 2019 6:00 AM

Timing, they say, is everything. But sometimes it's about where you are.

Like Mark Horton, who was waiting for a decision from the U.S. Eighth Circuit Court of Appeals. In Horton v. Midwest Geriatric Management, he wanted the appeals court to say he had a right to sue for sexual orientation discrimination. If he had sued in the Seventh Circuit, he would already have an answer. But now he'll have to wait for the U.S. Supreme Court to decide other cases with similar issues. It's a question people everywhere want answered, one way or another.

LGBTQ Questions

The Eighth Circuit had agreed to hear the case, but then the Supreme Court granted petitions in three other appeals. The appeals court decided to stay Horton's case until the High Court resolves the issues. They involve workplace rights of lesbians, gays, bi-sexuals, transgender or questioning people.

In Altitude Express v. Zarda and Harris Funeral Home v. EEOC, the Second Circuit and the Sixth Circuit respectively ruled in favor of LGBTQ plaintiffs. In Bostock v. Clayton County, the Eleventh Circuit ruled against them. They raise two main issues for the Supreme Court: Does Title VII of the Civil Rights Act protect people based on their sexual orientation and gender identity?

In Horton, the plaintiff married his husband in Illinois, where the Seventh Circuit famously announced in Hively v. Ivy Tech Community College that the Civil Rights Act applies to sexual orientation claims. In Missouri, where Horton got a job offer, not so much. He sued, alleging the employer rescinded the job offer after the owners discovered he's gay. He was fighting an uphill battle, even before the Eighth Circuit's order.

'Not Optimistic'

Jeff Hirsch, a labor and employment law professor, doesn't feel good about it all. "To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement," he wrote for the Workplace Prof Blog.

He says the LGBTQ issue is "really interesting" from a legal perspective. "It involves congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases -- and that can result in political outcomes that advocates may not always like," he says. In other words, there will be problems -- even after the High Court's ultimate decision. For Horton and many others, it will be one of those days when they remember exactly where they were.

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