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Not Horsing Around

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Mark Horton lost a great job offer after he revealed he was gay. With Lambda Legal’s help, he’s fighting back.

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BY TIM MURPHY

These days, Mark Horton and his husband, Alton Greenough, are finding themselves forced to sell— even give away, because they’re expensive to keep—more and more of the beloved miniature horses that graze on their farm in Edwardsville, Illinois, just north of St. Louis.

“They’re more like our children,” says Horton. But the couple is in rough times financially. It all goes back to an email Horton sent to his employer-tobe in 2016 casually outing himself as gay by mentioning Greenough.

Before that fateful email, Horton, 62, was employed as vice president of sales for a home health and hospice company based in Pittsburgh. But he had to travel extensively for that job and wanted to be closer to home to care for both his mother, who was suffering from pancreatic cancer (and has since died), and Greenough, who had sustained serious injuries in a riding accident.

So when a headhunter contacted him to let him know that a local eldercare company, Midwest Geriatric Management (MGM), was looking for a new VP, Horton applied. Thus began a three-month process during which he says he met everyone at MGM and ultimately was given a written job offer by MGM CEO Judah Bienstockand his wife, Faye. Once Horton accepted, Faye emailed, “Wonderful! Congratulations! We are so excited!”
Mark Horton and Alton Greenough with two of their many pets.

Horton gave notice to his employer in Pittsburgh. All that was pending was confirmation of Horton’s educational background, which Horton said would take a few weeks because of administrative changes at one of his schools. The Bienstocks did not indicate that this was a problem. In a casual email conversation about the degree, Horton wrote, “My partner has been on me about [my MBA] since he completed his Ph.D. a while back.”

Three days later, Faye Bienstock wrote to Horton. “Are you able to come this afternoon?,” she asked. “We would like to discuss the status of your employment.” Horton wrote that he was out of town that day but could come on a different date. Two days later, Bienstock wrote again: “Mark— I regret to inform you that due to the incompletion of the background check of supportive documentation—we have to withdraw our offer letter for employment at MGM.”

A month later, having obtained the necessary educational documentation and upon learning that the job had not yet been filled, Horton emailed the Bienstocks to express his continued interest. The Bienstocks replied that they were considering other candidates.

Horton says it was immediately clear to him that the Bienstocks rescinded the offer upon learning that he was gay—why else would they have offered the job and initially not have been concerned when he mentioned a delay in his educational documentation? A local lawyer, Mark Schuver, agreed with him and filed suit in the U.S. District Court for the Eastern District of Missouri. But the court dismissed the case, saying it did not see enough evidence of discrimination.

This was going to be a final career move for Mark that he was very excited about, but it all went south after he casually mentioned his husband.”
—  Greg Nevins, Lambda Legal counsel and Employment Fairness Project director

Now Lambda Legal, which has since joined the case, is appealing that dismissal to the U.S. Court of Appeals for the Eighth Circuit. It’ll be tough; the conservative-leaning court has previously suggested that sexual-orientation discrimination is not covered under the sex-discrimination protections afforded in the Civil Rights Act’s Title VII, even as other appeals courts in recent years have ruled the opposite. If the Eighth Circuit refuses to hear the case or rules against Horton, it would be among other similar cases that ultimately could go before the U.S. Supreme Court to determine whether sexual orientation is a protected status.

Meanwhile, the job-offer reversal has had a serious financial impact on Horton and Greenough. Horton’s prior employer quickly filled the position that he left and has been unable to hire him back. The couple has health insurance through Greenough, a military veteran, but Horton says he has applied unsuccessfully for about 100 positions. He suspects that’s because many employers consider him overqualified for some of the positions and because a simple Google search reveals the lawsuit is still pending.

“This was going to be a final career move for Mark that he was very excited about, but it all went south after he casually mentioned his husband,” says Lambda Legal counsel and Employment Fairness Project Director Greg Nevins, who is on Horton’s legal team. “The paper trail strongly suggests that this is discrimination, so Mark’s becomes yet another case demonstrating the urgency of understanding sex discrimination under Title VII to encompass sexual-orientation discrimination.” (Lambda has also successfully argued that Title VII covers gender identity as a form of sex discrimination.)

Meanwhile, says Horton, staying home and taking care of his and Greenough’s remaining animals— which also include cats, dogs, donkeys and llamas—has been therapeutic. “It’s like Noah’s Arc meets St. Francis around here,” he laughs. He and Greenough also get to spend time with their four grandkids, children of Greenough’s son.

Still, “I haven’t resolved any of my anger over the case,” Horton says. “I gave up a good job for that offer, and Alton and I will never live like we did.” The company has still not yet filled the position, he believes, based on online postings.

Yet he says he takes comfort knowing he’s doing the right thing by fighting against anti-LGBT workplace discrimination. “Friends have said to me,” he says, “‘you have never hidden in the closet and were always happy, so if this can happen to you it can happen to anybody. So thanks for getting out there and working for all of us.’”