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Aug 4, 2020

Supreme Court Bostock Ruling Confirms Scope of Title VII Includes Protections for Homosexuals, Invalidating Prior Eighth Circuit Precedent

ABSTRACT: The U.S. Supreme Court's Bostock ruling upends prior Eighth Circuit precedent on discrimination based on sexual preference.

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.