Md. high court declines to extend sex discrimination protections to sexual orientation

Listen to this article

The Maryland Supreme Court declined to offer “overlapping” protections for LGBTQ employees Monday, finding that the parts of Maryland’s fair employment laws that apply to sex-based discrimination do not also apply to discrimination based on sexual orientation.

The decision is at odds with the U.S. Supreme Court, which found in 2020 that discrimination on the basis of sexual orientation necessarily involves sex-based discrimination.

Maryland’s employment laws do offer explicit protections for LGBTQ employees. But those rights are not implicated under Maryland’s ban on sex-based discrimination, the state Supreme Court decided in a tight 4-3 vote.

Monday’s ruling originated in a federal case against Catholic Relief Services, a Baltimore-based religious organization that faced discrimination claims when it withdrew health insurance coverage from a gay employee’s spouse in 2017.

The organization argued that offering the insurance coverage violated its religious belief in marriage being between one man and one woman.

A federal judge ruled last year that Catholic Relief Services violated federal laws against sex discrimination in employment and granted summary judgment for the employee, a data analyst identified in court records as “John Doe.”

The judge asked Maryland’s Supreme Court to weigh in on a series of questions about state employment laws, however, including whether bans on sex-based discrimination in the Maryland Fair Employment Practices Act and the Maryland Equal Pay for Equal Work Act also include sexual orientation.

The majority found that they do not. Maryland’s General Assembly amended the Fair Employment Practices Act in 2001 to explicitly include sexual orientation, so the Supreme Court concluded that lawmakers did not intend to cover sexual orientation under the portion of the statute that barred sex-based discrimination.

Similarly, the Maryland Equal Pay for Equal Work Act does not mention sexual orientation — but lawmakers did add “gender identity” to the law in 2016, which led the majority to find that sexual orientation was not covered.

“Adding sexual orientation as a protected category in MEPEWA will require similar legislative action,” Justice Jonathan Biran wrote for the majority. “It would be improper for us to make that policy determination in lieu of the general assembly.”

The majority also analyzed a religious exception to the Fair Employment Practices Act. When lawmakers added sexual orientation as a protected category in 2001, they also added an exemption for religious employers.

The justices found that the exemption is intended to protect religious organizations from certain employment discrimination claims  “brought by employees who perform duties that directly further the core mission … of the religious entity.”

“As we see it, the narrowest reasonable reading of this language is that, in order for the exemption to apply, the employee’s duties must directly further the core mission(s) – religious or secular, or both – of the religious entity,” Biran wrote.

The majority did not determine whether Doe’s claim falls under the religious exemption, leaving that decision to the federal court.

A pair of dissenting opinions criticized the majority for declining to adopt the U.S. Supreme Court’s reading of sex discrimination laws in its landmark 2020 case, Bostock v. Clayton County.

In that case, the U.S. Supreme Court found that firing an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964 — even though the law does not explicitly mention sexual orientation — because discrimination based on sexual orientation necessarily involves sex-based discrimination.

A male employee who is married to a man, for instance, cannot be treated differently than a female employee who is married to a man.

Justice Michele D. Hotten, dissenting from the Maryland Supreme Court’s decision, criticized the majority for declining to adopt the Bostock standard.

“With just over three years since the United State Supreme Court’s decision in Bostock …, this case presents Maryland with the unique opportunity to be one of the first states to consider the extent to which Bostock plays a role in the interpretation and interplay of two state anti-discrimination statutes,” Hotten wrote.

“The majority’s decision is inconsistent with federal law, contrary to how Maryland interprets such statutes, and undermines public policy.”

Both dissents concluded that discrimination based on sexual orientation should be included under statutes barring sex-based discrimination.

“I would hold that under the MFEPA, sex and sexual orientation are not mutually exclusive categories for the purposes of employment discrimination but rather are overlapping, as well explained by the Supreme Court of the United States in Bostock,” Justice Shirley M. Watts wrote in a separate dissent. Justice Angela M. Eaves joined both dissents.

The law firm that represented Catholic Relief Services, Gallagher Evelius & Jones LLP, did not immediately return a request for comment Monday afternoon.

Anthony May, an attorney with Brown, Goldstein & Levy LLP, which represented Doe, said the majority’s decision “fails to appreciate the overlapping nature that discrimination has on individual employees on the basis of sex and sexual orientation.

“As aptly addressed in the dissents, discrimination on the basis of sexual orientation is contrary to public policy and the intention of the Maryland General Assembly to broaden protections for LGBTQ+ employees,” he said.

May said he is confident that Doe’s job, which was secular in nature, will not fall under the religious exemption outlined by the majority.

“We hope that the Maryland General Assembly will, as it has demonstrated time and again, take the steps needed to ensure that all workers are treated with the respect and dignity they deserve,” May said.