Maryland is poised to become the 18th state, along with the District of Columbia and Puerto Rico, to protect employees from unlawful discrimination based on gender identity. Both the Maryland House and Senate have approved the Fairness for All Marylanders Act of 2014 (the Act), which — pending the signature of Governor Martin O’Malley — would become effective on October 1, 2014.
The Act would amend the Maryland Fair Employment Practices Act (Title 20), and would be the first major amendment since the legislature added provisions to protect employees from discrimination based on sexual orientation in 2001. Title 20 also bans discrimination in the workplace based on race, color, religion, ancestry, national origin, sex, age, marital status, disability or genetic information.
The Act prohibits Maryland employers from failing or refusing to hire, or discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions or privileges of employment based on the employee’s gender identity. The law broadly defines gender identity as "the gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth, which may be demonstrated by (1) consistent and uniform assertion of the person’s gender identity; or (2) any other evidence that the gender identity is sincerely held as part of the person’s core identity."
The Act protects all job applicants and employees, regardless of whether they have undergone — or are in the process of undergoing — sex reassignment surgery. It does not, however, prohibit an employer from requiring an employee to adhere to reasonable workplace appearance, grooming and dress standards directly related to the nature of the employee's position, provided the dress is consistent with the employee’s gender identity.
Maryland's law is part of a growing trend to protect applicants and employees from gender identity discrimination. Although federal law currently provides no similar protections, the Employment Non-Discrimination Act (ENDA) has been gaining support and received Senate approval on November 7, 2013. Additionally, the Equal Employment Opportunity Commission has taken the position that claims of discrimination based on gender identity are actionable under Title VII's sex discrimination prohibition.
Employers can prevent discrimination or harassment claims by addressing gender identity issues in their anti-discrimination policies and compliance training.