Maryland’s Sex, Pay Bias Laws Don’t Cover Sexual Orientation

Sexual orientation isn’t a protected characteristic under the sex bias provisions of Maryland job discrimination law or the state’s equal pay law, a divided Maryland Supreme Court said.

The 4-3 opinion issued Monday addressed certified questions from a federal district court in the case of a gay Catholic Relief Services data analyst whose employment-related health insurance coverage for his husband was terminated after the organization said it had been mistakenly approved.

The majority rejected the analyst’s contention that a landmark 2020 US Supreme Court decision recognizing sexual orientation discrimination as prohibited sex and pay bias under federal law required the same result under state law. The court majority distinguished between the language and development of the Maryland Fair Employment Practices Act and Maryland Equal Pay for Equal Work Act and their federal counterparts.

Unlike Title VII of the 1964 Civil Rights Act, the MFEPA expressly includes sexual orientation bias as a separate banned form of discrimination, Justice Jonathan Biran said. Sexual orientation was added to the MFEPA as a protected trait in 2001. That meant the state law’s legislative history also confirms that “sex” under the MFEPA wasn’t viewed as including sexual orientation when enacted in 1965 or amended in 2001, Biran said.

The distinction between sex discrimination and sexual orientation bias is important because the MFEPA includes an exemption for religious entities, Biran said. The exemption applies when such entities seek to employ individuals of a particular religion, sexual orientation, or gender identity for work connected with its activities, he said.

Under the analyst’s contrary reading of the MFEPA, every worker “who sued a religious entity employer for alleged sexual orientation discrimination would simply plead their claims as a sex discrimination claim to avoid the potential application of the religious entity exemption,” the majority said. It agreed with CRS that the state assembly couldn’t have intended that sort of result.

Reliance on Bostock Rejected

The analyst—identified only as John Doe—pointed to Bostock v. Clayton County, Ga., which held that discrimination based on sexual orientation and gender identity necessarily is sex bias for purposes of Title VII.

But given the MFEPA’s plain text and legislative history, that the US Supreme Court has now “told us that sexual orientation discrimination has been prohibited under Title VII all along” without ever being added as a protected category under the statute doesn’t mean the state assembly’s clear understanding of the term “sex” when it enacted and amended the state law can or should be ignored, Biran said.

Doe’s argument that the MEPEWA should be read to extend to sexual orientation bias because the federal Equal Pay Act is likely to be read that way in light of Bostock also conflicted with the state equal pay law’s plain language and legislative history, Biran said.

The MEPEWA expressly prohibits unequal pay based on sex or gender identity, Brian said. The latter category was added in 2016, yet the state assembly failed to add similar prohibitions based on sexual orientation, he said.

The National Women’s Law Center, in advocating for the 2016 addition of gender identity, suggested that sexual orientation should also be added as a protected characteristic under the MEPEWA, Biran said. It isn’t plausible to conclude that the omission of sexual orientation from the amended MEPEWA was a simple oversight, he said.

Third Certified Question

The decision also addressed a third certified question: how to interpret the MFEPA’s religious employer exemption. The majority agreed with Doe that the law’s language is ambiguous and that the exemption should be narrowly construed because the MFEPA is a remedial statute.

The “narrowest reasonable reading” is that the exemption only applies to workers who perform duties directly furthering a religious entity’s core mission or missions, Biran said. That means it applies to more than just “ministerial” employees but that it also isn’t a blanket exemption covering all employees whose duties touch even indirectly on an entity’s religious purposes, he said.

Justices Matthew J. Fader, Brynja McDivitt Booth, and Steven B. Gould joined the opinion.

Justices Shirley M. Watts, Michele D. Hotten, and Angela M. Eaves dissented.

In one opinion, Watts—joined by Eaves—said that workplace sexual orientation discrimination necessarily is discrimination based on sex in light of Bostock. Sexual orientation and sex are overlapping categories for employment bias purposes. They aren’t mutually exclusive, Watts said.

In a separate dissent, Hotten—joined by Eaves—said Maryland wasted its chance “to be one of the first states to consider” the effect of Bostock. “The majority’s decision is inconsistent with federal law” and runs contrary to how Maryland interprets employment and pay bias law. It also undermines state public policy and opens the door further to inequality and discrimination, Hotten said.

Brown, Goldstein & Levy LLP and Gilbert Employment Law PC represented Doe. Gallagher Evelius & Jones LLP represented CRS.

The case is Doe v. Catholic Relief Servs., 2023 BL 279470, Md., No. 28/2022, 8/14/23.