What Employers Need to Know About Maryland's New Law Banning Sexual Orientation Discrimination

By: Niccolo N. Donzella, Esquire

THIS YEAR, Maryland amended its anti-discrimination law to add sexual orientation to the protected categories of race, color, religion, sex, age, national origin, marital status, genetic information, and disability. The law did not immediately go into effect, however, as a number of individuals and groups opposed to the amendment began a drive to subject the amendment to a statewide referendum. Just recently, the organizers of that initiative announced that their efforts have failed. As a result, the law is now in effect. Following are some frequently asked questions about the law and its effect on employers.

WHAT DOES THE LAW REQUIRE?
The law extends already existing prohibitions on discrimination to sexual orientation. Thus, employers may not, on the basis of sexual orientation:

· fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment;
· limit, segregate, or classify its employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee; or
· print or cause to be printed or published any notice or advertisement relating to employment indicating any preference, limitation, specification, or discrimination.

WHAT DOES SEXUAL ORIENTATION MEAN?
The new law defines sexual orientation as "the identification of an individual as to male or female homosexuality, heterosexuality, or bisexuality."

ARE ALL EMPLOYERS COVERED?
No. The law exempts the following:

(1) An employer with respect to the employment of aliens outside of the State; and
(2) A religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion or sexual orientation to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.

DOES THE LAW REQUIRE AN EMPLOYER TO DETERMINE THE SEXUAL ORIENTATION OF APPLICANTS AND EMPLOYEES?
No. There is no requirement that an employer gather such information. In fact, asking applicants and employees for such information may constitute a violation of the law, a conclusion that may be inferred from the fact that the law specifically immunizes employers "from liability under this article or under the common law, arising out of the employer's 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."

DOES THE LAW REQUIRE EMPLOYERS TO MEET A QUOTA WITH RESPECT TO THE SEXUAL ORIENTATION OF ITS EMPLOYEES?
No. In fact, the law expressly states that it may not be interpreted to require an employer to grant preferential treatment to any individual or to any group because of sexual orientation on account of an imbalance which may exist with respect to the total number or percentage of persons of any sexual orientation employed by any employer.

HOW ARE CHARGES OF SEXUAL ORIENTATION DISCRIMINATION HANDLED?
Charges of sexual orientation discrimination are subject to the same process that governs charges of other forms of discrimination. Persons who believe that they have been subjected to discrimination must file a complaint with the Human Rights Commission within six months of the alleged discriminatory event. After receiving the complaint, the Commission must investigate it. Where the investigation establishes probable cause to believe that a violation has occurred, the Commission must engage in efforts to reach a voluntary resolution with the employer and complainant. If no such resolution can be reached, the Commission must hold a hearing to determine whether a violation has indeed occurred.

WHAT ARE THE PENALTIES FOR VIOLATING THE LAW?
The same penalties apply to discrimination based on sexual orientation as apply to other forms of discrimination. Upon finding that a violation has occurred, the Commission can order the employer to cease and desist certain conduct or to take affirmative steps to bring its policies and practices into line with the law. The Commission also can provide relief to the complainant, as in ordering instatement, reinstatement, promotion, transfer, and/or back pay.

SHOULD EMPLOYERS MAKE ANY CHANGES IN RESPONSE TO THE NEW LAW?
Yes. Personnel manuals and other documents that address company anti?discrimination policies should be amended to reflect the new law. Employees and supervisors should be advised of the new law and that company policy requires everyone to abide by it. Training should be considered for those who must enforce company policy and see that the law is obeyed.