Anti-gay employment discrimination case headed to federal court

The Equal Employment Opportunity Commission has already ruled that LGBT discrimination in the hiring and firing process is already banned for federal employers. Now, the plaintiff in that case, David Baldwin, is taking his argument a step further, filing a complaint in federal court that could eventually wind up before the Supreme Court.

From Buzzfeed:

In the complaint, filed in federal court in Miami on Oct. 13, Baldwin sued Transportation Sec. Anthony Foxx and FAA administrator Michael Huerta in their official capacities. Baldwin claims that he “was not selected for a permanent position as a [Front Line Manager] at the Miami Tower facility” and that sex — specifically, the fact that he is gay — was the “motivating factor” for the fact that he was not promoted.

Baldwin had 90 days to file a federal lawsuit after the EEOC ruled in his favor earlier this summer. As they wrote in their decision, existing anti-discrimination protections under the Civil Rights Act of 1964 on the basis of sex necessarily protect sexual orientation: “[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

The upshot? Discrimination based on sexual orientation in the workplace is already illegal, and has been since 1964. Now it’s up to higher courts to confirm or overturn the EEOC’s ruling.

This case is a big deal — arguably a bigger deal than Obergefell. As Baldwin’s attorney, Lowell Kuvin, said, quoted by Buzzfeed”Mr. Baldwin’s case has the ability to affect more people than the [Supreme] Court’s Obergefell [marriage] case because there are more gay men and women who have jobs than same sex couples who want to get married.”

And based on the circumstances, it would seem that Baldwin has a pretty strong case. From The New Civil Rights Movement:

Jobs via Shutterstock

Hiring, via Shutterstock

Baldwin’s lawsuit, which names transportation secretary Anthony Foxx and FAA Administrator Michael Huerta as defendants, alleges he was passed over for a promotion to permanent front line manager in favor of less qualified people on three separate occasions. In addition, Baldwin’s supervisors repeatedly made disparaging remarks about his sexual orientation, the suit states.

For example, when Baldwin mentioned that he and his partner had attended Mardi Gras in New Orleans, one of his supervisors, Mark Scott, responded that “we don’t need to hear about all that gay stuff.” Baldwin was also repeatedly told he was “a distraction in the radar room” when he discussed his partner. When Baldwin mentioned that his partner prepared him lunch each day, he was told the “comment was inappropriate” and to “get out of the radar room with that kind of talk.”

“The fact that Plaintiff is male and gay was a motivating factor in the decision to not promote Plaintiff,” the complaint states. “Plaintiff was singled out due to his sexual orientation and treated differently than heterosexual co-workers.”

The question for the court is not whether his employer discriminated against Baldwin based on his sexual orientation — that much seems to be pretty well established — but rather whether such discrimination is already illegal under Civil Rights Act’s protections on the basis of sex. In other words, had Baldwin been a woman with the same male partner, would they still have been denied the promotion?

Given the fact that anti-discrimination legislation is stalled in Congress for the foreseeable future — the Equality Act isn’t making it through the Republican-controlled Congress any time soon — the Courts are likely the only avenue by which LGBT people can win full equality in the workplace.

More on this surely to come.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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3 Responses to “Anti-gay employment discrimination case headed to federal court”

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  2. BeccaM says:

    I’m in agreement with your entire analysis there.

  3. dcinsider says:

    I would not get too excited. This is a stretch. I was glad the EEOC ruled as it did, but I’m skeptical that an Article III court will uphold the ruling. That means, as far as I can tell, that SCOTUS will have to rule (if they choose to take the case, which is not a given). We know the 4 conservatives are not likely to go along with a new cause of action not expressly created by statute. And even if we assume the four liberals are so inclined, and I’m not sure they are, I don’t see Kennedy joining with us on this one.

    This is a question of statutory interpretation, rather than one of Constitutional interpretation. When it comes to statutory interpretation, the Court looks to the plain language of the statute. Here, the word sex means gender (apparently). Now, by positioning Baldwin as a male discriminated against not because of sexual orientation, though that was a motivating factor, but because of his gender, suggests that the female Baldwin would not have received similar treatment. But the problem is that Baldwin was targeted not because he was male, but because he was a gay male.

    The Court will look at the basis, which is clearly animus toward his sexual orientation, and will conclude that given the 20 plus states that have specifically added this term to their discrimination statutes, and the legislation introduced for the past 30 years seeking (unsuccessfully) to add this language to Title VII, and the fact that Congress has not chosen to do so, suggests that Congress did not intend for the word sex to include sexual orientation. Thus, the plain meaning of the term sex does not include the sexual orientation of the plaintiff.

    Remember, Obergefell was not decided on the basis of sex discrimination that Roberts hinted at in oral argument. So, I’m very skeptical that this tactic will succeed at any level of the federal appeals process.

    I really do hope I’m wrong, but I don’t think I am. Sorry.

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