Maryland’s Expanded Sexual Harassment Law
Recently enacted amendments to Maryland’s anti-discrimination laws go into effect today, October 1, 2019, which will have a wide impact on Maryland employers and their ability to defend against sexual harassment claims. The law, which went largely unreported as the legislative session wrapped up this past Spring, makes significant definitional and coverage changes to the current non-discrimination laws, which every employer should consider in connection with their existing Human Resources practices.
The law, which was part of a broader effort to address gender diversity, equal pay and harassment, made a number of seemingly general changes to the existing law. These modifications include:
- Expansion of the definition of “employee” to include independent contractors. Not only will independent contractors be entitled to protections under the anti-discrimination laws, but they will necessarily be included in total employee counts for purposes of determining jurisdictional coverage of the laws.
- Also, with respect to claims of harassment, the definition of “employer” has been expanded. As of this writing, the current Maryland anti-discrimination law applies only to employers with 15 or more employees. As of October 1, if there is a complaint of harassment, employers with only a single employee will be covered. As a result, small employers facing harassment claims are subject to the statutory damages provisions of the state law.
- Harassment will now be a defined term and prohibited act under the law. The amendments have defined unlawful harassment as: “includ[ing] harassment based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability, and retains its judicially determined meaning, except to the extent it is expressly or impliedly changed.” While the last clause seems to build existing case law into the bill, it remains to be seen how this language will be interpreted and whether the newly added language will change the focus of harassment law in Maryland.
- The new law also specifically provides that, in cases of harassment, an employer is liable if its negligence led to the harassment, or the continuation of the harassment. An employer will also be liable for the actions of any individual who:
- undertakes or recommends tangible employment actions, including hiring, firing, promoting, demoting, and reassigning an employee; or
- directs, supervises or evaluates the work of the employee.
- The law expands the time period for filing a complaint of harassment with a local human relations commission (i.e. the Maryland Commission on Civil Rights or a county civil rights office) from six months to two years.
- The time period for filing a lawsuit alleging discriminatory harassment in violation of the State anti-discrimination law is also expanded from the current two years to three years.
In addition to these changes, which affect all Maryland employers, the law also imposes new training requirements for State employees.
Small employers likely to be impacted by the new law should make an effort to bring their anti-discrimination policies into compliance with the requirements of the law. Likewise, employers already covered by the State’s law on anti-discrimination, should give consideration as to how these changes, particularly those that affect employer liability and coverage, affect their current policies and make revisions accordingly.