Maryland Anti-Discrimination Amendments Could Change Game for Employers
In a measure that will likely have a wide-ranging and profound impact upon employers, Maryland amended its anti-discrimination law, known as the Fair Employment Practices Act (FEPA), to significantly increase the risk of liability for unlawful harassment.
The amendments specifically prohibit harassment based upon certain characteristics; expand the definition of an “employee”; significantly enhance the liability provisions of the Act; appear to expand the definition of “supervisor” and extend the time for filing claims based upon harassment. The new law takes effect on October 1, 2019, and below are several of the notable changes:
Expansive Definition of Harassment
The amendments define harassment as including harassment based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity or disability.
Expansion of the definition of “Employee” and “Employer”
Currently, the federal anti-discrimination law (Title VII) as well as Maryland state law apply only to employees. However, the amendments significantly expand the definition of “employee” to expressly include independent contractors. As a result of this change, independent contractors may advance claims for unlawful harassment to the same extent as employees.
The amendments also expand the definition of “employer” to include employers with as few as one employee if an employee has filed a complaint alleging harassment.
Significant Increase in the Risk of Liability for Harassment Claims
Perhaps most significantly, the amendments to FEPA significantly increase the risk of liability for employers in Maryland for harassment claims. An employer will now be liable for the acts or omissions toward an employee or applicant for employment committed by an individual who:
- Undertakes or recommends tangible employment actions affecting the employee or an applicant for employment, including hiring, firing, promoting, demoting, and reassigning the employee or an applicant for employment or
- Who “directs, supervises or evaluates” the work activities of the employee.
Presently, under Title VII, in circumstances where unlawful harassment has occurred but the employee has not suffered an adverse employment action, an employer may raise an important affirmative defense.
The defense has two parts: First, that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and, second, that the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. This is known as the so called Faragher/Ellerth defense. The amendments to FEPA appear to strip employers of this important defense and render them strictly liable for the acts of supervisors.
Apparent Expansion of the Definition of “Supervisor”
Prior, under the anti-discrimination laws, supervisors were ordinarily deemed to be individuals who had the authority to terminate employees or otherwise take what is known as an adverse employment action (i.e., demotion, reduction in pay, etc.) against them. The amendments define supervisor to include any employee who “directs, supervises or evaluates” the complainant. This definition appears to be broader than the standard definition of supervisor, which has developed under the discrimination jurisprudence.
Extension of the Time Limits for Filing Harassment Claims
Before, administrative claims, which are a prerequisite to filing a lawsuit based upon unlawful harassment, had to be filed within six months. The amendments extend the time period for filing an administrative complaint for unlawful harassment to two years, and extend the time period for filing a civil lawsuit for unlawful harassment from two years to three years.
Mandatory Training for Maryland State Employers
The amendments also impose new requirements on Maryland State employers to conduct anti-harassment training.
Marc Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information, contact Marc at 301-657-0184 or [email protected].