Employers Face New Requirements for Disclosing Sexual Harassment in the Workplace
Maryland employers will no longer be able to enforce sexual harassment claim waivers, including mandatory arbitration provisions, due to a recently passed bill.
The Maryland General Assembly has passed a bill that when signed by Governor Hogan, will be the Disclosing Sexual Harassment in the Workplace Act of 2018. It is scheduled to be effective on October 1, 2018. The Act will have two major components.
Voiding Waiver Provisions
First, the Act will void provisions often found in employment contracts, policies, or other kinds of employee agreements, such as mandatory arbitration provisions, that limit certain employee rights with respect to sexual harassment claims. Specifically, such kinds of provisions will no longer be able to waive the employees’:
- Substantive or procedural rights or remedies with respect to sexual harassment claims that accrue in the future; or
- Retaliation claims for reporting or asserting a right or remedy based on sexual harassment.
These kinds of waivers will be null and void as being against the public policy of the State of Maryland. In line with the #MeToo movement and growing opposition to the culture of silence, employees will be permitted to raise claims of sexual harassment publicly in court, rather than being relegated to less formal proceedings such as arbitration. An employer who enforces, or attempts to enforce, such a waiver will be liable for the employee’s attorney’s fees and costs.
New Reporting Obligations
The second component of the new law will impose mandatory reporting obligations on employers with 50 or more employees. Employers will be required to submit an electronic survey to the Maryland Commission on Civil Rights on or before July 1, 2020, and again two years later, on or before July 1, 2022. This provision of the law will only be in effect from October 1, 2018 through June 30, 2023 (a period of four years and nine months). The surveys will cover the following topics:
- The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
- The number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment (and whether the employer took personnel action against a harasser who was the subject of a settlement); and
- The number of settlements entered into, after an allegation of sexual harassment, that included a provision requiring both parties to keep the terms of the settlement confidential.
The commission will make this information public by posting statistics on its website. Upon request, the commission may disclose information about the number of times a specific employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment. The commission will also review a random selection of surveys, create an executive summary of the randomly selected surveys (after redacting any identifying information), and submit an executive summary to the governor.
Rick Vernon and Nida Kanwal are employment attorneys who represent management in workplace employment matters. For more information on the Disclosing Sexual Harassment in the Workplace Act, contact Rick at firstname.lastname@example.org or Nida at email@example.com.