July 22, 2018

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Eight State Attorneys General Urge Eighth Circuit Not To Expand Scope of Title VII

State attorneys general from Louisiana, Missouri, Oklahoma, Texas, Michigan, Nebraska, and South Dakota have joined Arkansas (collectively the “States”) in an amicus brief to the Eighth Circuit, urging the court not to join the Seventh Circuit and Second Circuit in interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit sexual orientation discrimination.

The States submitted this brief in a case brought by Mark Horton against Midwest Geriatric Management LLC (“Midwest Geriatric”) in which the plaintiff alleges sexual orientation and religious discrimination in violation of Title VII. More specifically, Horton alleges that Midwest Geriatric revoked his job offer after the company learned he was gay. In their brief, the States assert that Horton wrongly petitioned the court to ignore precedent and reverse its prior position that sexual orientation discrimination is not covered by Title VII.

The States argue that until last year, when the Seventh and Second Circuits expanded the scope of Title VII to encompass sexual orientation discrimination, federal courts had unanimously found that sexual orientation was not a protected category under Title VII, and the Eighth Circuit should follow this long-standing view. The States add that, despite numerous opportunities to revise Title VII to include sexual orientation, Congress has chosen not to do so. Finally, the States contend that Horton’s arguments simply are not persuasive.

In addition to the States’ brief, the Eighth Circuit has also received amicus briefs supporting Horton’s argument from 18 other states and Washington D.C., in addition to the U.S. Equal Employment Opportunity Commission and various businesses.

The Eighth Circuit’s decision remains pending, and we will be watching for it. In the meantime, employers operating within the Eighth Circuit—comprising Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota—are encouraged to evaluate their non-discrimination policies with this potential change to the federal law in mind, to the extent they have not already done so to comply with state or local laws.

©2018 Epstein Becker & Green, P.C. All rights reserved.

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Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

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Kate Rhodes, Epstein Becker Green, Labor and Employment Lawyer,
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KATE B. RHODES is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Ms. Rhodes:

  • Counsels clients on the termination and discipline of employees, effective employee misconduct investigations, disability accommodations, state and federal leave laws, the use and payment of interns, the classification of employees, the legality of incentive compensation policies, responses to union organizing efforts, and conduct during strikes and lockouts

  • Drafts and assists in negotiating collective bargaining agreements, arbitration agreements, employment agreements, severance agreements, settlement agreements, confidentiality agreements, project labor agreements, and media rights agreements

  • Advises on and drafts employee handbooks and drug testing and social media policies

  • Investigates allegations of employment discrimination, sexual harassment, violations of the Sarbanes-Oxley Act, and misconduct by high-level executives

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Law Clerk

AMANDA M. GOMEZ* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She will be focusing her practice on wage and hour issues and the preparation of employment policies and procedures as well as employee handbooks and manuals.

Ms. Gomez received her J.D. from Harvard Law School, where she was the Executive Submissions Editor of the Harvard Journal of Law & Gender. While attending Harvard Law, Ms. Gomez served as a Legal...

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