On October 1, 2019, Maryland employees gained strengthened protections from discrimination, especially for employees subjected to workplace sexual harassment. The new law makes Maryland a more favorable forum to pursue employment discrimination and harassment claims including in comparison to federal law.
Maryland’s new law expands the Maryland Fair Employment Practices Act (FEPA), Md. Code Ann., State Gov’t, § 20-601 et seq., which outlaws discrimination in employment based on race, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity, genetic information, or disability by employers with more than 15 employees. Under the new law that went into effect October 1st, independent contractors will gain rights to protect against discrimination, and victims of sex harassment can enforce their rights under a broader definition of harassment and gain coverage under state law if they work at smaller employers.
Many Maryland employees are protected from discrimination under federal law, state law, and county law. A number of federal laws govern workplace discrimination, including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans with Disabilities Act, the Equal Pay Act, and the Age Discrimination in Employment Act. Maryland’s state FEPA in many ways mirrors federal civil rights protections, and also provides explicit coverage for LGBTQ employees. At the county level, even more expansive job discrimination protections are provided for employees working in Montgomery County, Prince Georges County, Howard County, and Baltimore County.
HB 679, passed by the Maryland legislature, provides that beginning October 1, 2019 the FEPA now defines “employee” to include independent contractors. As a result, all workers are entitled to FEPA’s protections, regardless of whether they are classified as direct employees or independent contractors.
The most significant changes of the new law govern illegal harassment in the workplace:
While FEPA has always forbidden workplace harassment under “discrimination,” the new law explicitly covers “harassment” and expands the rights of employees who have harassed in the workplace. By definition under the new law, harassment is unwelcome or offensive conduct that is based on “race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability.”
Instead of the covering only employers with at least 15 employees, workers who are subject to illegal harassment may file a complaint of harassment under FEPA against an employer with only a single employee. Prior to October 1, 2019 only workers in Montgomery, Prince Georges, Howard, and Baltimore Counties had protections against harassment by small employers.
The new law also changes the way in which an employer may be liable for harassment of employees. Under FEPA, an employer can be held legally responsible if the person responsible for the harassment can make or recommend employment decisions (e.g., hiring and firing, promotion and demotion, and reassignments) or directs, supervises, or evaluates the work activities of the employee, even if that person does not have the power to make employment decisions. Additionally, an employer can be liable if its own negligence leads to harassment or enables harassment to continue.
The new law also expands the statute of limitations for harassment claims, which is currently set at 1 year. Instead, for claims of harassment an employee has 2 years from the date they were harassed to file a complaint with the Maryland Commission of Civil Rights (MCCR) and 3 years to file a civil action in a state Circuit Court. If an employer is located in Montgomery, Prince George’s, Howard, or Baltimore County, then the worker may file a complaint with the local anti-discrimination agency for that county within the same 2-year period instead of the MCCR before bringing a lawsuit. (The deadlines for workers who have been harassed are much longer than the deadlines for workers who have been discriminated against in other ways, which are 6 months to a year to file a complaint with the MCCR or county Office of Human Rights, and 2 years to file a lawsuit in court)
Maryland’s new FEPA presents a significant expansion of legal rights for individuals who have experienced workplace harassment. The attorneys at Correia & Puth are dedicated to eradicating harassment and have years of experience working on behalf of individuals exposed to sexual harassment, racial harassment, national origin harassment, and harassment on the basis of sexual orientation or gender identity. If you have experienced harassment on the basis of race, color, religion, national origin, sex, age, marital status, sexual orientation, gender identity, or disability, we urge you to contact us today.
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For harassment complaints, the law defines an “employer” as “a person that . . . has one or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar years,” which implies that a small employer (i.e., one with fewer than 15 workers) must have been in existence for at least 20 weeks to be held liable for harassment. As a result, a harassed worker who works for an employer that has not been in business at least 20 weeks will have to show that their employer has at least 15 employees.
