Discrimination of Unmarried Cohabitants

Discrimination

Discrimination based upon race, color, religion, sex, national origin, marital status or physical or mental handicap is illegal. The code defines marital status as being single, married, separated, divorced or widowed. It is unclear in certain covered activities whether unmarried cohabitation is included within the ambit of “marital status,” entitling unmarried cohabitation to statutory protection. With the exception of housing discrimination law, there have been no reported Maryland cases that deny unmarried cohabitants protection. The Maryland appellate courts have not yet considered the issue.

The Maryland Commission on Human Relations is the state agency which administers and enforces the state laws prohibiting discrimination in housing, employment and financing. Any person claiming to be aggrieved by discrimination based on marital status may file a complaint in writing under oath with the Maryland Commission Human Relations (MHRC).

In 2001, the Maryland General Assembly passed and the Governor signed the Anti-Discrimination Act of 2001. This legislation would prohibit discrimination on the basis of sexual orientation in employment, housing and public accommodations. Enactment of this bill will be based on the outcome of a state-wide referendum in the fall of 2002, and may or may not become legislation. Discrimination based on sexual orientation is also illegal to varying degrees in Howard, Montgomery and Prince George’s Counties, Rockville, and Baltimore City.

Housing

The prohibition against discrimination based on marital status applies to the selling, renting and leasing of housing. It does not apply to landlord owners who actually live in the rental dwelling.

The Maryland Court of Special Appeals has ruled that the denial of a joint membership to unmarried cohabitants to buy a home within a cooperative housing development is not illegal discrimination. In the 1981 case of Prince George’s County, Md. v. Greenbelt Homes, Inc.,[1] the Court attempted to clarify the meaning of “marital status” as used in the context of housing discrimination law. It said: “While each [cohabitant] separately had a marital status, collectively they did not. Only marriage as prescribed by law can change the marital status of an individual to a new legal entity of husband and wife.” Thus, the cooperative members could reject the application of the unmarried couple solely because they were unmarried cohabitants. The Court went on to say: “Even contemporary discrimination laws are not intended to promulgate promiscuity by favoring relationships unrecognized by status or case law as having legal status.”

The Court of Appeals agreed with this reasoning in the 1984 case of Commission on Human Relations v. Greenbelt Homes.[2] The court considered whether enforcing a housing cooperative regulation that operated to prohibit a female resident from having an unrelated adult male reside with her constituted discrimination based on marital status. The Court held that it did not constitute unlawful discrimination.

These decisions created damaging precedent for housing discrimination complaints based on marital status filed by unmarried cohabiting couples. It is conceivable, though doubtful, that under different facts, a decision could be more favorable to unmarried cohabitants. It appears, however, in the housing context, that unmarried cohabitants do not together have a “marital status.”

Employment

Maryland law also prohibits discrimination in employment decisions based on the marital status of the employee or job applicant. As of 1999, the Maryland courts have not had to decide whether an adverse employment decision based on an employee’s or job applicant’s unmarried cohabitation amounts to illegal discrimination. Federal and other state courts, however, have dealt with such cases. The outcome in these courts has depended to a large extent on whether the employment was in the private or public sector.

Private Employers

It is not clear if a private employer can fire an employee, or fail to hire an applicant, or otherwise treat such a person in a detrimental fashion, because of his or her living arrangements. One case does make it clear, however, that an employer may terminate the employee if the employee’s living arrangements amount to a breach of the employment contract. Unmarried cohabitation may breach an employment contract if:

it renders the employee incapable of performing his or her work; or
it is calculated to injure the employer’s business.

The 1982 case of Harvey v. YWCA[3] gave another legitimate reason for an employer to fire a worker. In that case, the court upheld the termination of an unmarried woman who became pregnant during her employment. Because the woman wanted to “advocate an alternative lifestyle of unmarried parenthood” to young women she counseled, and because such a philosophy ran counter to the YWCA’s purpose, the woman could be fired. The court took care to note that she was not fired for her sex, marital status or pregnancy, but because she had an “expressed intent to represent to her youth groups a philosophy and social concept contrary to those of her employer.”

Public Employers

Public employers are subject to constitutional restraints that do not generally affect the private sector. Unmarried cohabitants will probably be more successful contesting a public employer’s decision than they will be contesting adverse private decisions. For example, the Virginia case of Cord v. Gibb[4] held that an unmarried cohabitant could not be denied a certificate of good moral character to practice law, solely because of her living arrangement.

On the other hand, a Pennsylvania federal district court found no constitutional violation in a library’s decision to fire two employees who were living together “in open adultery” with their illegitimate child.[5] One of the employees was married to another person at the time. The other was unmarried.

Essentially, an individual who hires, fires or promotes, or otherwise makes employment decisions, cannot base his or her decisions solely on the existence of unmarried cohabitation, without a showing of either:

a so-called “substantial adverse impact” upon the employee’s ability to perform on the job, or
a detriment to the employer’s public image, except if the employee’s behavior is constitutionally protected.

Another case – Suddarth v. Slane[6] – demonstrates how the courts deal with employees who are fired for acting in a manner that “embarrasses” the employer, even though the employer was the state. The Virginia State Police fired Suddarth after the woman with whom he was having an affair – a married woman with two children – gave birth to his child. The official reason for the termination was “[conduct] unbecoming a member or employee of the Commonwealth such as to bring the service into disrepute.” The court in this case relied on the fact that Suddarth committed adultery in having the affair, an act that is illegal in Virginia, and let the firing stand.

Financial Institutions

It is unlawful in Maryland under Article 49B for banks or lending institutions to discriminate against individuals on the basis of marital status in their loan activities. Again, as of this writing, there are no reported Maryland cases dealing with unmarried cohabitants who have been subjected to this kind of discrimination.

Unmarried cohabitants may have an effective remedy for alleged discrimination based on marital status under the Equal Credit Opportunity Act, a federal act that prohibits discrimination by creditors in credit transactions. A District of Columbia court decision found a valid claim under the Equal Credit Opportunity Act where a savings and loan association refused to aggregate incomes of unmarried joint mortgage applicants when determining their creditworthiness in a situation where the incomes of two similarly situated married joint applicants would have been aggregated.[7] The statute was designed to prevent discrimination against women (especially unmarried women) in credit transactions.

[1] Prince George’s County, Md. v. Greenbelt Homes, Inc., 49 Md. App. 314, 431 A.2d 745 (1981).

[2] Maryland Com. on Human Relations v. Greenbelt Homes, Inc., 300 Md. 75, 475 A.2d 1192 (1984).

[3] Harvey v. YWCA, 533 F. Supp. 949 (W.D.N.C. 1982).

[4] Cord v. Gibb, 219 Va. 1019, 254 S.E.2d 71 (1979).

[5] Hollenbaugh v. Carnegie Free Library, 436 F. Supp. 1328 (W.D. Pa. 1977).

[6] Suddarth v. Slane, 539 F. Supp. 612 (W.D. Va. 1982).

[7] Markham v. Colonial Mortgage Service Co., 605 F.2d 566 (D.C. Cir. 1979).

Last Legal Update 02/05/08 (PLL/M.A.J)

Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center. Updated 7/10/01.