DOE V. CATH. RELIEF SERVS.

By: Spencer Baldacci

The Supreme Court of Maryland held that the terms “sex” and “sexual orientation” are to be treated as two distinct protected classes under the Maryland Fair Employment Practices Act (“MFEPA”) and its corresponding religious exemption. Doe v. Cath. Relief Servs., 484 Md. 640, 659, 300 A.3d 116, 127 (2023). The court also determined that the protected class of “sex” under the Maryland Equal Pay for Equal Work Act (“MEPEWA”) does not include “sexual orientation.” Id. at 662, 300 A.3d at 129. Lastly, the Supreme Court of Maryland established five guiding factors for determining if an employee’s duties fall within the religious exemption of MFEPA. Id. at 673-74, 300 A.3d at 136-37.

John Doe (“Doe”), a married gay man, was a data analyst with Catholic Relief Services (“CRS”). At a career fair, a CRS representative notified Doe that his husband would qualify for spousal health benefits. Doe’s employment duties at CRS involved business functions with CRS’s Gateway business and Salesforce platforms. Upon being hired, CRS accepted Doe’s same-sex spousal benefits application. However, CRS’ human resource department (“HR”) later alerted Doe that his husband was not eligible for spousal benefits at CRS and that the enrollment acceptance was in error. HR informed Doe that CRS did not offer benefits to same-sex couples because it conflicted with their Catholic values. CRS then promptly ended Doe’s husband’s benefits.

After filing a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), Doe received a right to sue letter. Doe subsequently filed a complaint against CRS in the United States District Court for the District of Maryland (“U.S. District Court”) that included claims under MFEPA and MEPEWA in addition to two federal law claims. The U.S. District Court made rulings regarding the federal law claims made by Doe but sought guidance from the Supreme Court of Maryland for the claims involving MFEPA and MEPEWA. The U.S. District Court certified to the Supreme Court of Maryland three questions of law: (1) does the MFEPA’s prohibition of sex discrimination also apply to sexual orientation, (2) does the MEPEWA’s prohibition of sex discrimination also apply to sexual orientation, and (3) what does, “to perform work connected with the activities of the religious entity,” mean within the religious entity exemption of the MFEPA? Doe,484 Md. at 676, 300 A.3d at 138.

The court first examined the definition of “sex discrimination” within the MFEPA. Doe, 484 Md. at 651, 300 A.3d at 123. The court ruled that sex discrimination under MFEPA does not equate to sexual orientation discrimination. Id. at 660, 300 A.3d at 128. In looking at the plain language of the MFEPA, both sex and sexual orientation are prohibited forms of discrimination. Id. at 654, 300 A.3d at 125. The court reasoned that the General Assembly amended the statute to include sexual orientation as a prohibited form of discrimination because it was not originally covered under the category of sex discrimination. Id. at 657, 300 A.3d at 127. The MFEPA also contains a religious exemption provision which only lists “sexual orientation” and not “sex” as an exemption. Id. at 659, 300 A.3d 127. The court found that the General Assembly intended for sex and sexual orientation to be separate protected classes because the General Assembly only added sexual orientation to the religious exemption. Id. at 659, 660-61, 300 A.3d at 127-28.

The court then addressed the language in the MEPEWA which only lists “sex” and “gender identity” as protected from pay discrimination. Doe, 484 Md. at 661, 300 A.3d at 129. The court found the statute to be unambiguous and decided that only “sex” and “gender identity” are protected classes regarding pay disparity under the MEPEWA. Id. at 662, 300 A.3d at 129. The court ruled that “sex” in the context of the MEPEWA referred to someone being either male or female. Id. Additionally, the General Assembly amended the MEPEWA in 2016 to define gender identity as, “the gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth.” Id. Just like its rationale for MFEPA issue, the court determined that if the General Assembly wanted to include sexual orientation as a protected class, they would have added it during the amendment process. Id. at 663, 300 A.3d at 130. The court reasoned that both the MEPEWA and MFEPA were amended in the same General Assembly session — within a few years of each other — and therefore, it is unlikely that the General Assembly “simply forgot to include sexual orientation” in the MEPEWA. Id. at 663, 300 A.3d at 130.

In analyzing the language of the MFEPA’s religious exemption, the court found that the General Assembly intended to only include employee positions that “directly further the core mission of the religious entity.” Doe, 484 Md. at 667, 300 A.3d at 132. To make this determination, the court first looked to the plain language of the exemption, which states, “MFEPA’s protections do not apply to claims against a religious corporation…with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity.” Id. at 665, 300 A.3d at 131. The court found that the Maryland General Assembly did not intend to include a blanket exemption but tailored the exemption for specific work or employee positions. Id.

The Supreme Court of Maryland established five factors to help future courts determine which types of duties fall within the religious exemption as the legislature did not explicitly list examples or guidelines: (1) all relevant information related to the employee’s duties, (2) direct duties as those, “that are not one or more steps removed from taking the actions that affect the goals of the entity,” (3) the size of the religious entity, (4) that religious entities can have religious and secular missions, and (5) the mission description, services provided, the people who are served, and how the religious entity utilizes its funds. Doe,484 Md. at 673-74, 300 A.3d at 136-37. The court did not decide whether Doe’s duties fall within the religious exemption but left it up to the U.S. District Court as that decision was a matter of fact and not law. Id. at 675, 300 A.3d at 137.

The dissent, written by Justice Shirley M. Watts, argued that discrimination based on sexual orientation is related to discrimination based on sex and that Doe’s duties in his position at CRS did not fall within the religious exemption under the MFEPA. Doe,484 Md. at 677, 300 A.3d at 138. Justice Watts found that sex and sexual orientation are “overlapping” since employers consider sex when discriminating based on sexual orientation. Id. at 684-85, 300 A.3d at 143. Justice Watts also argued that the religious exemption “bars claims against religious entities with respect to the hiring (or not hiring) of individuals of a particular sexual orientation,” but does not allow religious organizations to hire people and then give them fewer benefits or different treatment because of their sexual orientation. Id. at 698, 300 A.3d at 150-51.

Per the court’s holding in Doe, practitioners must treat “sex” and “sexual orientation” as two unrelated protected classes. Because the MEPEWA does not specifically identify “sexual orientation” as a protected class, clients cannot bring discrimination claims based on sexual orientation under the Act. This delineation seemingly conflicts with federal interpretation of sex discrimination.[1] The court’s establishment of a five-factor test to determine whether one’s job duties fall within the religious exemption will open up positions to those who would otherwise be discriminated against by religious employers. Should someone have a job with duties that are not considered “directly” related to the core mission, a religious entity cannot discriminate against them based on their sexual orientation pursuant to the MFEPA.

[1] In 2020, the U.S. Supreme Court interpreted Title VII of the 1964 Civil Rights Act’s ban on sex discrimination as inclusive of discrimination based on sexual orientaiton. Bostock v. Clayton Cnty., 590 U.S. 644, 662 (2020).

Spencer Baldacci is a 3rd year J.D. candidate at the University of Baltimore School of Law and the Symposium and Alumni Editor for Law Forum. After graduating from Boston University in 2015 with a B.A. in Political Science and a minor in Italian Studies, Spencer worked in the non-profit world for seven years with a predominant focus on immigrant rights and homelessness alleviation and prevention. In the Summer of 2023, Spencer interned for the Maryland State Ethics Commission. During her 2L Summer, Spencer was a legal fellow for the Access to Counsel for Evictions Program at Maryland Legal Aid. Spencer has translated documents from Spanish to English for the Immigrant Rights Clinic at the University of Baltimore. Spencer plans to pursue a career in public interest law after graduation.