A unanimous appeals court panel has ruled that a Tennessee federal district court erred in dismissing a claim that a union local there may have violated US law by discriminating against a gay member.
Three judges from the Cincinnati-based US Court of Appeals for the 6th Circuit, in a decision released on August 3, affirmed the trial court’s dismissal of sex discrimination claims brought under Tennessee’s Human Rights Act and the 1964 Civil Rights Act, but found that the conduct described in plaintiff Marty Gilbert’s complaint could violate the union’s duty of fair representation.
This may be the first case in which a federal appeals court has ruled that anti-gay bias in the operation of a union hiring hall may violate the Labor Management Relations Act; the panel does not cite any prior ruling directly on point with the facts Gilbert alleged.
Appeals panel finds Tennessee hiring hall local may have failed its duties under US labor law
According to his complaint, Gilbert is a “theater professional” who “organizes awards ceremonies such as the Country Music Association (CMA) Awards,” Judge Jeffrey S. Sutton wrote in his opinion for the panel. Gilbert belongs to Local 46 of the International Alliance of Theatrical Stage Employees (IATSE). CMA and related organizations have “exclusive hiring hall agreements” with that local, which means that the only way somebody gets to work on jobs covered by the hiring hall agreement is through the union’s referral.
Gilbert, who is openly gay, was hired by CMA to work on its 2007 awards show based on such a referral. While working on the show, the complaint alleged, a co-worker called him a “faggot” and threatened to stab him, a credible risk given that the employee already faced criminal charges for “having stabbed several homosexuals” in Atlanta.
Gilbert complained about the harassment, after which Local 46 stopped referring him for jobs and actually modified its procedures to prevent him from qualifying for other jobs, according to his complaint. He specified jobs he was qualified to do for which Local 46 refused to make referrals, and he alleged that the local’s president contacted an employer who had hired Gilbert, pressing him to terminate the employment.
When Gilbert suggested at a union meeting that Local 46 amend its anti-discrimination policy to include sexual orientation, he was hooted down and derided. Gilbert also claimed the union wrongly accused him of work-related misconduct and imposed discipline based on trumped-up charges.
Gilbert filed a federal court complaint alleging sex discrimination under the Tennessee Human Rights Act (directed at the union and several industry employers) and violation of the union’s duty of fair representation (directed at both the local and the international union).
After the federal Equal Employment Opportunity Commission issued him a “right to sue” letter regarding a federal discrimination violation, Gilbert attempted to amend his lawsuit to add the 1964 Civil Rights Act claim. The trial judge, however, granted a motion by the defendants to dismiss all claims on the ground that anti-gay discrimination does not violate US or Tennessee law.
The 6th Circuit panel agreed that the state and federal discrimination claims against the employers and the union had to be dismissed. US courts have unanimously held that the 1964 Act’s ban on sex discrimination does not include bias based on sexual orientation.
In recent decades, however, some courts have interpreted the Civil Rights Act sex discrimination protections to ban bias based on an individual’s failure to conform to sexual stereotypes, and Gilbert argued this theory supported his case. The court disagreed, finding he had not alleged facts suggesting he suffered discrimination because he was insufficiently masculine in his appearance or mannerisms.
It was clear, said the court, that whatever discrimination he suffered was due to his sexual orientation as such.
Where the appeals court differed with the trial court was over its dismissal regarding the local union’s duty of fair representation. This obligation was established by courts due to the status unions enjoy under federal labor law as exclusive representatives of all employees in a bargaining unit. Beginning in the 1940s, first in a case arising under the Railway Labor Act, the courts found that when unions collaborated with employers to maintain racial segregation in the workplace, they were violating this duty.
In subsequent cases under the Labor Management Relations Act, the courts further developed the duty of fair representation, the Supreme Court holding in 1967 that this obligation requires a union to “serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The high court has ruled that this duty extends to a union’s operation of a hiring hall.
In light of Gilbert’s allegations, the court found that Gilbert has stated “a claim that Local 46’s conduct at a minimum was arbitrary or in bad faith. Most damaging is the allegation that Local 46 abused its hiring-hall authority to undermine Gilbert’s work opportunities.”
The panel found that if Gilbert’s allegations proved to be true at trial, the union’s conduct falls “so far outside a wide range of reasonableness that it is wholly irrational,” and constitutes “arbitrary” conduct in violation of its fair representation duty.
The complaint made no factual allegations that would suggest the international union played any role in the discrimination against Gilbert, the panel found, upholding the dismissal of charges against it. The court of appeals returned the case to the Tennessee district court to allow Gilbert to pursue his fair representation claim against Local 46, including an injunction compelling the hiring hall to treat him fairly in future referrals, as well as damages for his income loss from past discrimination.
Offering no explanation, the court designated the case as “not recommended for full-text publication,” harking back to an unfortunate federal court practice from the 1980s of not publishing important gay rights decisions when judges might have been embarrassed to see the factual allegations appear in the Federal Reporter. Full-text publication is significant in amplifying the precedential standing of a decision, so this decision is unfortunate.