From the Labor & Employment Practice.
(Labor & Employment Newsletter – 2002)
Under Maryland’s “new” sexual orientation legislation, codified at Md. Code 1957, Art. 49B, employers may not, in making employment decisions, discriminate on the basis of their applicants’ or employees’ sexual orientation. The legislation broadens Maryland’s civil rights law banning discrimination in employment, housing and public accommodations on the basis of race, religion, sex, age, color, national origin, marital status, and disability to include a ban on discrimination also on the basis of sexual orientation.
The law defines “sexual orientation” as an individual’s identification as homosexual, heterosexual, or bisexual [Md. Code 1957, Art. 49B, 15(j)]. The key inquiry is therefore with which sex does one have a sexual physical relationship rather than one’s identification according to gender or sexual identity. As such, the law protects not only homosexuals and bisexuals, but heterosexuals as well.
WHO AND WHAT THE ANTIDISCRIMINATION LAW
DOES NOT PROTECT
The Antidiscrimination Act protects individuals from discrimination in employment – as well as from discrimination in housing and accommodation – based on their preferences for male versus female sexual partners.
The Antidiscrimination Act does not protect individuals who identify themselves as transsexual or who simply wish to change their physical anatomic sexual characteristics to those of the opposite sex in order to conform to, for example, a homosexual orientation.
Because an employer may perceive transsexuals to be gay, however, the Act may indirectly protect transsexual victims of employment discrimination. Furthermore, a transsexual may sue for discrimination based on disability. Doe v. Boeing Co., 846 P.2d 531 (Wa. 1993).
The Antidiscrimination Act also does not protect trans-gendered individuals. A transgendered individual is one who has a self-image, expression, or identify not traditionally associated with his or her sex at birth or who is perceived by others as having such a self-image.
The Act does not per se forbid harassment based on sexual orientation. To make a claim of hostile work-environment sexual discrimination, an employee-plaintiff still must show that he or she was subject to harassment that “was sufficiently sever or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment.” Manikhi v. Mass Transit Administration, 360 Md. 333 (2000) (quoting Spicer v. Virginia Department of Corrections, 66 F.3d 705 (1995)).
Furthermore, last year, a Minnesota court, in Goins v. West Group, 635 N.W.2d 717 (2001), held that an employer’s designation of employee restroom use based on biological gender did not fall into the category of prohibited sexual orientation discrimination.
OTHER LIMITATIONS ON THE
ANTIDISCRIMINATION ACT IN EMPLOYMENT
In investigating an allegation of sexual orientation, an employer is immune from liability for activities “arising out of [his] . . . reasonable acts to verify the sexual orientation of any employee or applicant taken by the employer in response to a charge filed against the employer on the basis of sexual orientation” [Art. 49B, 16(i)]. Thus, where an employee sues an employer for wrongly defaming him or her by calling him or her a homosexual, that employer may thereafter take action based on the employee or applicant’s sexual orientation to the extent necessary to verify and prove the truth of that statement.
In addition, religious organizations may consider an employee’s sexual orientation in making employment decisions. In particular, religious organizations are exempt from the prohibition on discriminating on the basis of sexual orientation with respect to the employment of individuals of a particular religion or sexual orientation “to perform work connected with the carrying on” by that religious organization of its activities. [Art. 49B, 18(2)].
The Antidiscrimination Act does not require or prohibit employers from offering health insurance benefits to unmarried domestic partners of homosexuals, bisexuals, and heterosexuals.
Nor does the Act apply to the Boy Scouts or Girl Scouts of America where either group acts as an employer, “with respect to the employment of individuals of a particular sexual orientation to perform work connected with the activities of” either organization. [Art. 49B, 18. Section 3, ch. 340, Acts 2001]; see Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
DISCRIMINATION OUTSIDE OF
State legislation expressly forbidding sexual orientation discrimination has been applied not only to discrimination in employment, but also to discrimination in housing, public accommodations, and education.
Further, in at least one state outside of Maryland, laws banning discrimination on the basis of sexual orientation have been challenged as violative of constitutional free speech and free exercise of religion. In Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 82 A.L.R.5th 625 (U.S. 2000), a former scoutmaster sued a scouting organization after the scouting organization fired him when he publicly declared his “gay” sexual orientation status. The United States Supreme Court held that the New Jersey law which required the scouting organization to admit an avowed homosexual and gay rights activist as a scoutmaster violated the organization’s First Amendment fundamental right of association. The Supreme court reasoned that denying the organization the right to discriminate against the scoutmaster on the basis of his sexual orientation would substantially burden the organization’s desire to not promote homosexual conduct.
The Antidiscrimination Act became law on November 21, 2001. The Act would have become law on October 1, 2001 had a group opposed to the law not petitioned it to referendum, which stayed its effective date. If employers have not already done so, employment policies and handbooks should be updated to reflect this new protected class in Maryland.