EEOC Gay Rights Complainant Resolves Federal Lawsuit

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By Patrick Dorrian

A gay former air traffic controller in Florida who scored a landmark legal victory for LGBT rights when the EEOC embraced his argument that sexual orientation discrimination is barred under federal employment law resolved his private lawsuit against the FAA ( Baldwin v. Foxx , S.D. Fla., No. 1:15-cv-23825, offer of judgment accepted 12/19/16 ).

The lawsuit by David Baldwin involved the hotly contested issue of whether the plain language of Title VII of the 1964 Civil Rights Act’s sex discrimination provision also prohibits sexual orientation discrimination. He sued after the Equal Employment Opportunity Commission in July 2015 answered that question in the affirmative in a 3-2 ruling in a federal employee administrative proceeding Baldwin had brought against the Federal Aviation Administration.

Baldwin’s attorney had told Bloomberg BNA when the lawsuit was filed that Baldwin was hoping to extend the EEOC’s position to gay and lesbian workers whether they work for the government or a private employer. Commenting on his client’s Dec. 19 acceptance of the government’s offer of judgment in the amount of $10,001, Miami attorney Lowell J. Kuvin said Dec. 20 that the resolution of the case “offers finality to Baldwin’s claims and solidifies the EEOC’s decision.”

Since the time of the agency’s decision, the scope of Title VII’s sex discrimination provision—including whether it also extends to transgender workers—has continued to be frequently litigated in federal courts across the country. A federal appeals court in Chicago heard oral arguments Nov. 30 in a case involving a lesbian college professor ( Hively v. Ivy Tech Cmty. Coll., 7th Cir., No. 15-1720), and a federal appeals court in Georgia heard oral arguments Dec. 15 in a similar case involving a gay hospital security department employee ( Evans v. Ga. Reg'l Hosp., 11th Cir., No. 15-15234). The issue also is pending in before a federal appeals court in New York.

Accepted $10,001 Offer

Baldwin’s acceptance of the offer of judgment ends the lawsuit he filed against the FAA in October 2015. The judgment amount includes all costs, including attorneys’ fees, incurred by Baldwin in the case, Kuvin told Bloomberg BNA.

The offer of judgment expressly states that it is not an admission of liability by the government on Baldwin’s claims.

Baldwin, in his complaint, had asked the U.S. District Court for the Southern District of Florida to find that his mistreatment by the FAA because he is gay was illegal sex discrimination under Title VII. The mistreatment allegedly included failing to promote Baldwin and discriminatory remarks made to him by managers and co-workers. The remarks included the statement “we don’t need to hear about that gay stuff” when Baldwin mentioned a trip he and his partner had made to New Orleans for Mardi Gras.

Kuvin said the judgment in his client’s favor may not carry precedential weight but that it should be persuasive on other courts addressing whether Title VII’s sex bias provision also extends to sexual orientation discrimination.

The government didn’t oppose Baldwin’s lawsuit by even filing a motion to dismiss, nor did it appeal the EEOC’s administrative ruling, Kuvin said. It’s a reasonable inference, therefore, that even the government’s lawyers in the Department of Justice agree the legal claims raised in Baldwin’s lawsuit were properly before the court, Kuvin said.

“It’s a clear win” for Baldwin, the lawyer said.

‘Case Never About Money.’

“The case was never about the money,” Kuvin added. Rather, Baldwin was solely concerned with extending the legal authority established by the EEOC with its administrative ruling in Baldwin’s favor to a court case, where it might be relied on by public and private employees alike, Kuvin said.

The resolution came early in the case, which Baldwin funded through his own savings, Kuvin said. Trial wasn’t scheduled until 2018, the attorney noted.

There aren’t terms to the judgment, Kuvin said, noting that Baldwin isn’t bound by a confidentiality provision or any other caveats.

The government didn’t respond Dec. 20 to Bloomberg BNA’s request for comment.

DOJ attorneys Anthony Erickson-Pogorzelski in Miami and Deepthy Kishore in Washington represented the FAA.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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