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Gay man fears historic workplace discrimination case may falter due to lack of support

Gay man fears historic workplace discrimination case may falter due to lack of support

David H Baldwin previously worked for the Federal Avaiation Administration

A US gay man fighting a discrimination claim against the government fears he may not have the financial resources to carry the lawsuit forward.

Former air traffic controller David Baldwin told GSN, ‘It doesn’t matter that the facts of the case are solid. Fighting this lawsuit is like taking a trip in a private plane: Unless you have fuel in the tanks, there’s no point taking the plane out of the hangar.’

His attorney says that should the lawsuit be dropped it could have wider implications for all gay employees in the US.

Passed over for promotion

Baldwin alleges he faced anti-gay bias while working at a government agency: the Federal Aviation Administration in Miami.

He says he was passed over for promotion at Miami Tower Terminal Radar Approach Control because of his sexual orientation.

During his employment in Miami between 2010 and 2013, Baldwin says people less qualified than him received promotions and that his supervisor made disparaging remarks concerning his sexuality.

In one instance, he says that he mentioned his partner prepared his packed lunch for him each day. His supervisor said the ‘comment was inappropriate’ and to ‘get out of the radar room with that kind of talk.’

As there is no federal law in the US specifically protecting LGBTI people from discrimination in the workplace, Baldwin first took his case to the US Equal Employment Opportunity Commission (EEOC).

It ruled in July 2015 that discrimination based on sexual orientation was already prohibited under the sex discrimination provisions of Title VII of the Civil Rights Act of 1964.

Baldwin’s name was redacted from the landmark EEOC ruling, but the 58-year-old – who is now a resident of New Orleans with his partner – chose to later reveal himself in an interview with the Washington Blade.

‘Everyone makes the assumption that we must have some big law firm backing us’

Following the landmark EEOC ruling, Baldwin filed a lawsuit against Anthony Foxx, Secretary of the US Department of Transportation, and Michael P. Huerta, Administrator Federal Aviation Administration.

However, although he and his attorney, Lowell J. Kuvin, have confidence in the case, they’ve hit unexpected major setbacks.

In April of this year, Baldwin was diagnosed with oral cancer. He had to undergo major surgery to remove a tumor from his tongue. During routine follow-ups, he was found to have pre-cancerous cells in his thyroid. Just weeks after his first operation, he had to have his thyroid gland removed.

He’s now cancer-free. However, undergoing two major operations in a short space of time left him physically and emotionally drained.

Baldwin (right) with husband Keith George (left)
David Baldwin (right) with husband Keith George (left)

‘My attorney got a stay with the justice department,’ he says. Although the lawsuit has now reached the deposition stage, Baldwin is unsure how much longer they can carry on.

‘Everyone makes the assumption that we must have some big law firm backing us,’ says Baldwin. ‘We don’t have anybody. I have a cat, dog and my partner, Keith. That’s our foundation!’ he laughs down the phone to me from his new home in New Orleans.

Although there are many LGBT people fighting discrimination claims, Baldwin’s is historic because it prompted the EEOC to make its ruling on LGB discrimination already being covered under the Civil Rights Act of 1964.

That ruling has since been cited in many lawsuits. The EEOC itself has taken on – and won – several cases against private employers.

‘We didn’t quite grasp the magnitude of the decision’

Launching a lawsuit against the government is a bigger undertaking.

‘I have to admit we didn’t quite grasp the magnitude of the [EEOC] decision,’ says Baldwin now, ‘and that the decision would be used as the basis legally for all the other decisions going forward.’

Baldwin is adamant he’s not looking to accept an out-of-court settlement.

‘Rarely are you given an opportunity to do something in life that matters for the community. This matters for me. I’m looking at all the different people that are using my case to try and defend themselves against really terrible workplace situations … If we can help somebody because of this, we have a legacy going forward.’

However, should the case collapse before its scheduled January 2018 trial date, Baldwin’s attorney believes there could be wider implications.

‘David’s case is very interesting because it’s the cornerstone of what’s going in American jurisprudence right now in relation to LGBT rights,’ says Kuvin.

He previously told Buzzfeed the case could be as big as Obergefell v. Hodges – which eventually led to the Supreme Court ruling on marriage equality.

‘A lot of the federal courts and federal judges are using David’s case to say, “Well, look, if it’s OK for federal employers why wouldn’t it be OK for private employers.” I think if someone wanted to attack that whole way of thinking, they would definitely have to get rid of David Baldwin’s case.’

‘We have enough fuel in our tanks to carry us a couple more months’

Both men believe that has become more likely since Donald Trump’s election victory last month and have detected a wind change in confidence around their case.

Asked if he believes whether the case being dropped would have any impact on the EEOC ruling, Kuvin replies, ‘That’s a good question.

‘Would it affect the ruling of the EEOC? What it would do would allow that ruling to sit there without any type of ability for David Baldwin and my office to defend it in the future, so it will become static.

‘Right now while we’re in a lawsuit, that decision, while somewhat static, it has the protection of the lawsuit cloaking it. They don’t want to go after the decision, they don’t want to attack that directly because they understand that they would probably lose on that.

‘But once David’s lawsuit is done with, it becomes static and someone can try to basically have someone do away with it.’

Until now, Baldwin has been paying his attorney’s fees out of his own pocket, but cash is running out. Kuvin says it’s important the case is backed up with expert witnesses in order that it sets a firm precedent which can be cited in other cases. Again, flying in expert witnesses costs money.

‘We have enough fuel in our tanks to carry us a couple more months,’ says Baldwin, who this week has travelled to Las Vegas for the deposition stage of the lawsuit.

Baldwin says, in an ideal world, he is seeking additional financial resources and legal assistance to help Kuvin prepare for trial.

‘Surviving cancer redefines your life. Our priorities have changed’

Approached for comment, a spokesperson for the FAA said the agency, ‘Declines to comment on pending litigation.’

The Department of Transportation have not responded to a request for comment.

In court papers, attorneys acting on their behalf deny the allegations against both agencies.

As for Baldwin, he’s keen to put the whole case behind him, but only if the FAA agrees it was at fault.

‘Surviving cancer redefines your life. Our priorities have changed,’ he says.

‘My partner and I… we’ve been tied up with this thing for years now. We simply want the FAA to admit there was bias against me, that they were aware of it, and there going to take corrective action not to do this in future, and to uphold this decision in a federal court.’