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Is an Employee’s Sexual Orientation No Longer a Protected Category in Maryland?

August 17, 2023

Laura L. Rubenstein

On August 14, 2023, Maryland’s Supreme Court declined to offer protections for LGBTQ employees. In a 4-3 decision, the majority of justices explained that Maryland’s fair employment laws addressing sex-based discrimination do not also apply to discrimination based on sexual orientation.

The underlying case was brought by an employee of Baltimore-based Catholic Relief Services (CRS) when the religious organization withdrew health insurance coverage from the employee’s same sex spouse in 2017. CRS defended its action claiming that offering the insurance benefit violated its religious belief that marriage should be between one man and one woman.

Justifying its ruling, the court explained that the Maryland General Assembly’s 2001 amendment to the state’s Fair Employment Practices Act explicitly included sexual orientation, so lawmakers did not intend to cover sexual orientation under the portion of the statute that barred sex-based discrimination. There’s also a religious exception to Maryland’s Fair Employment Practices Act exempting religious organizations from certain employment discrimination claims  “brought by employees who perform duties that directly further the core mission … of the religious entity.”  

This decision is at odds with the 2020 landmark decision, Bostock v. Clayton County, where the U.S. Supreme Court found that discrimination on the basis of sexual orientation necessarily involves sex-based discrimination. Two dissenting Maryland justices criticized the court’s majority for not adopting the U.S. Supreme Court’s reading of sex discrimination laws.

In her written dissent, Justice Michele D. Hotten wrote, “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.” She believed the majority’s decision was inconsistent with federal law and that sex and sexual orientation are not mutually exclusive categories for the purposes of employment discrimination.

It is important to note that the Court did not strike prohibitions on making employment decisions on the basis of gender identity. Protection of gender identity was an expressly stated protected classification added in 2016. An individual’s sexual orientation is independent of their gender identity which is how individuals perceive themselves and what they call themselves.

Given the court felt that the issue was best resolved by the General Assembly, expect it to quickly be on the Agenda for the Legislative term starting in January, 2024. For questions regarding how this decision impacts your workplace policies, and whether your company should make any changes, contact your RKW employment lawyer.

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