Please ensure Javascript is enabled for purposes of website accessibility

Frosh urges Supreme Court to prohibit sexual orientation-based job discrimination

Md. attorney general joins Supreme Court brief

Maryland Attorney General Brian E. Frosh has joined more than a dozen other states and Washington, D.C., in urging the U.S. Supreme Court to read federal civil-rights law broadly to prohibit job discrimination on the basis on sexual orientation.

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

“The Constitution’s command to provide ‘the equal protection of the laws’ applies to ‘any person’ within a state’s jurisdiction, regardless of that person’s sexual orientation,” Frosh said in a statement Thursday. “We deprive our citizens of that equal protection when we allow discrimination on the basis of sexual orientation. Just like race, sex or creed, discrimination based on one’s sexual orientation must not be tolerated as a ground for denying any person the opportunity to obtain employment.”

The Supreme Court has yet to hold the 1964 Civil Rights Act’s Title VII ban on sex discrimination in the workplace includes sexual orientation. Legislation that would expressly ban bias against lesbian, gay and bisexual employees and job applicants has died in past congressional sessions.

The attorney generals’ brief, filed at the Supreme Court on Wednesday, argues discrimination against lesbians, gays and bisexuals is a form of sex discrimination because they do not “adhere to traditional gender stereotypes.”

The brief cites the Supreme Court’s 1989 decision in Hopkins v. Price Waterhouse that a woman denied partnership could sue for discrimination based on the claim she was rejected because she was aggressive, a quality which would have been laudable if she were a man.

“(T)he impossibility of disentangling gender stereotyping from sexual-orientation discrimination unfairly disadvantages employees who suffer discrimination because of gender stereotyping and are or are perceived to be gay, lesbian, or bisexual,” New York Attorney General Eric T. Schneiderman wrote on behalf of himself and 17 colleagues, including Frosh.

Maryland, like New York, has a state law prohibiting job discrimination based on sexual orientation.

However, the added protection of federal law would give gay, lesbian and bisexual Marylanders and New Yorkers “a federal enforcer, the Equal Employment Opportunity Commission, to police invidious discrimination based on sexual orientation,” the brief stated.

A petition pending before the high court asks the justices to consider and overturn a lower-court ruling that dismissed a lesbian security guard’s claim she suffered such harassment based on her sexual orientation that she had no choice but to quit her job at Georgia Regional Hospital. A federal district court and the Atlanta-based 11th U.S. Circuit Court of Appeals said Title VII prohibits discrimination based on gender but not sexual orientation.

Supporting the petition, the attorneys general noted the 11th Circuit’s ruling conflicts with a Chicago-based 7th U.S. Circuit Court of Appeals decision that sexual-orientation bias is a form of sex discrimination. The Supreme Court must step in to resolve the disagreement, they added.

“Accordingly, there are circumstances when a state’s lesbian, gay, and bisexual residents travel to another jurisdiction without laws prohibiting sexual-orientation discrimination, and federal laws such as Title VII provide the only protection,” Schneiderman wrote. “Given the current divide among the federal circuits, such workers may lose all protection from invidious discrimination merely by taking a work-related trip. For instance, under the present split, such workers cannot travel from Chicago or Milwaukee in the 7th Circuit to Selma or Savannah in the 11th Circuit without risking exposure to sexual orientation discrimination for which there is no legal remedy.”

The pending appeal before the Supreme Court is Jameka K. Evans v. Georgia Regional Hospital et al., No. 17-370.

In addition to Maryland, the states that joined Schneiderman’s brief are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Minnesota, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.

The brief was filed the same day as 76 businesses and organizations — including American Airlines, Apple, eBay, Facebook, Google, Starbucks and Microsoft — also asked the Supreme Court to take up the issue.

To purchase a reprint of this article, contact [email protected].