Maryland Federal Court Permits Sexual Orientation Discrimination Claim Under Title VII

Acknowledging that neither the Supreme Court nor the U.S. Court of Appeals for the Fourth Circuit have yet ruled on the question of whether Title VII’s prohibition on discrimination based on sex includes sexual orientation, a Maryland federal court has found that it does.

Case Background: In Squire v. FedEx Freight, Inc., a transgender employee alleged that he was subjected to discriminatory discipline and termination after his employer learned of his gender reassignment surgery. Following his termination, the employee filed a charge of discrimination with the Equal Employment Opportunity Commission (a prerequisite to bringing a lawsuit). On his charge, he marked the box for “Sex” when indicating the basis for the alleged discrimination and, in the written explanation, further stated “sex (Gender Identity/Transgender).” Following closure of the EEOC charge, the employee sued his employer.

The Court’s Decision.  Arguing that “sex” and “sexual orientation” are distinct, the employer asserted to the court that the employee did not allege sexual orientation discrimination in his charge, and had therefore failed to exhaust the administrative prerequisite for such claim. The court, however, rejected the employer’s argument.

While noting that a sister court within the Fourth Circuit found the two to be different concepts, the court nonetheless approvingly quoted another court that “society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years” and “the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues, especially in the context of providing expanded legal rights.” The court cited Hively v. Ivy Tech Cmty. Coll. Of Indiana, in which the Seventh Circuit recently held that sexual orientation discrimination is a form of sex discrimination under Title VII. Thus, according to the court, it was reasonable for the employee to believe that “sex” on the EEOC charge necessarily encompassed “sexual orientation,” particularly as there was no separate box for the latter.

Significance for Employers. While awaiting guidance from the Fourth Circuit (or the Supreme Court), employers in Maryland should be aware at least one federal judge in this district has found that Title VII’s prohibitions on sex discrimination will be deemed to include sexual orientation discrimination.