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Businesses, attorneys general, rights groups tell court discrimination is bad for business
From a press release
2018-03-14

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( St. Louis, March 14, 2018 ) — Today 47 businesses, attorneys general from 15 states and the District of Columbia, the nation's leading LGBT rights organizations, and several other organizations submitted friend-of-the-court briefs to the U.S. Court of Appeals for the Eighth Circuit in support of Lambda Legal client Mark Horton, a gay man whose job offer from a St. Louis-based health management organization was withdrawn after the company's owners learned Horton is gay.

"The nation's top corporations recognize that discrimination is bad for business. Our economy cannot thrive unless all people are welcome both as employees and customers," said Omar Gonzalez-Pagan, Lambda Legal Staff Attorney. "Companies across all industries know that when an employee like Mark can bring their whole selves to work without fear of retaliation, they can focus on their jobs and succeed. Mark was recruited because of his recognized skills, which is what matters — and not his sexual orientation."

"Levi Strauss & Co. will always stand up for equality and inclusivity in our workplaces and communities. It is not only good for business — it is simply the right thing to do," said Anna Walker, senior director of policy and advocacy, Levi Strauss & Co. "The strength of this company is based on the diversity of the incredible people who work for us. We must be welcoming for all people, regardless of race, sex, national origin, ethnicity, religion, age, disability, sexual orientation or gender identity, or we erode our ability to foster a vibrant, competitive workforce."

The lawsuit, Horton v. Midwest Geriatric Management, 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. The filing on March 7, 2018, came 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 almost 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 the cases before both courts.

Levi Strauss & Co., Airbnb, CBS Corporation, Microsoft, and Salesforce topped the list of 47 businesses who joined in a brief underscoring both the harm of discrimination to the bottom line and, conversely, the benefits of an open and affirming work place to employee morale and performance. The business brief, authored by the law firm Quinn Emanuel Urquhart & Sullivan, LLP, was one of eight amicus briefs submitted to the Eighth Circuit. Among the other briefs submitted was a brief joined by 16 states' attorneys general, one from the U.S. Equal Employment Opportunity Commission ( EEOC ) and briefs authored by LGBT rights groups, the Anti-Defamation League, the Missouri chapters of the National Employment Lawyers Association and legal scholars.

"There is a growing consensus among business leaders, government officials, and scholars, that discrimination against LGBT employees is not just wrong, but counter-productive," Lambda Legal Employment Fairness Project Director Greg Nevins added.

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.

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 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. Trumpchallenging 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.

Gregory R. Nevins, Omar Gonzalez-Pagan and Sharon M. McGowan are the attorneys for Lambda Legal in this matter. They are joined by co-counsel Mark S. Schuver and Natalie T. Lorenz, of Belleville, Illinois-based Mathis, Marifian & Richter, LTD.

The case is Horton v. Midwest Geriatric Management. Details about the case and the amicus briefs can be found here:www.lambdalegal.org/in-court/cases/horton-v-midwest-geriatric-management .

More information about Lambda Legal's work on employment protections is available here:www.lambdalegal.org/issues/employment-and-rights-in-the-workplace .


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