Gay Union Member Can Pursue Discrimination Claim Against Biased Union Local

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on August 2 that a Tennessee federal district court erred by dismissing a claim that a union local in that state may have violated federal law by discriminating against a gay member.  Gilbert v. Country Music Association, Inc., No. 09-6398.  Although the appeals court affirmed the trial court's dismissal of sex discrimination claims brought under Tennessee's Human Rights Act and Title VII of the Civil Rights Act of 1964, it 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, as the court does not cite any prior ruling directly on point with the facts alleged in this case.  However, without explanation the court has designated the case as "not recommended for full-text publication," harking back to an unfortunate practice among federal courts observed during the 1980s of failing to publish important decisions in gay rights cases when judges might have been embarrassed to see the factual allegations published in the Federal Reporter.  Because full-text publication is significant for purposes of a case's precedential standing, failure to publish this decision is most unfortunate and deserving of some protest.

According to his complaint, Gilbert is a "theater professional" who "organizes awards ceremonies such as the Country Music Association (CMA) Awards and the 'Stellar Awards'," wrote Judge Jeffrey S. Sutton in his opinion for the court.  Gilbert belongs to Local 46 of the International Alliance of Theatrical Stage Employees (IATSE).  Country Music Association and related organizations have "exclusive hiring hall agreements" with Local 46, which means that the only way somebody gets to work on activities covered by the hiring hall agreement is through the union's referral.

Gilbert was hired by CMA to work on the 2007 CMA Awards as a result of a referral from Local 46's hiring hall.  Gilbert is openly gay.  While he was working on the show, a co-worker called him a "faggot" and threatened to stab him.  This threat was credible because the employee involved was facing criminal charges for "having stabbed several homosexuals" in Atlanta, according to Gilbert's complaint.  Gilbert complained about the harassment, after which Local 46 stopped referring him for jobs and actually modified its referral process to prevent Gilbert from qualifying for other jobs, according to his complaint.  Gilbert specified various jobs for which he was qualified for which Local 46 refused to make referrals, and he alleged that Local 46's president contacted an employer who had hired Gilbert to persuade 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 that the union wrongly accused him of work-related misconduct and imposed discipline based on trumped-up charges.

Gilbert filed a federal 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 on his federal discrimination charge, he moved to amend his lawsuit to add the Title VII claim, but the trial judge granted a motion by defendants to dismiss all his claims, on the ground that anti-gay discrimination does not violate federal or Tennessee law.

The 6th Circuit panel agreed that the THRA and Title VII claims against the employers and the union had to be dismissed.  Federal courts have unanimously held over more than 45 years that Title VII has been in effect that its ban on sex discrimination does not include discrimination based on sexual orientation.  However, over the past few decades the courts have interpreted Title VII to ban discrimination based on an individual's failure to conform to sexual stereotypes, and Gilbert argued that this theory could be used to support his case.  The court disagreed, finding that in order for the stereotyping theory to apply, Gilbert would have to allege facts suggesting that he suffered discrimination because he was insufficiently masculine in his appearance or mannerisms, and nothing of that nature appeared in his complaint.  It was clear, said the court, that whatever discrimination he suffered was due to his sexual orientation as such.

However, the appeals court found that the trial court erred in dismissing the duty of fair representation claim against the local union.  The duty of fair representation is a judicially derived doctrine stemming from the status that unions enjoy under federal labor law as exclusive representatives of all employees in a bargaining unit or who are covered under a particular union contract.   The union's duty is to represent all of the employees and to act in the best interest of the overall employee group.  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 (in Vaca v. Sipes) that this duty 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 Supreme Court has ruled that this duty extends to a union's operation of a hiring hall.

In light of Gilbert's allegations about the conduct of Local 46, 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 court 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 the duty of fair representation.

However, the court found, the complaint made no factual allegations that would suggest that the international union played any role in the discrimination against Gilbert, thus the court upheld dismissal of the duty of fair representation charges against the international union.  The court of appeals returned the case to the district court in Tennessee to allow Gilbert to pursue his duty of fair representation claim against Local 46.  He may seek an injunction to compel the hiring hall to treat him fairly in making future referrals, as well as damages for his income loss as a result of the past discrimination.

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