On October 1, 2022, three new Maryland laws go into effect that vastly expand the states anti-discrimination protections. Below is a breakdown of each of these three laws and what employers need to know about them:
Harassment and Sexual Harassment – Definitions – Employment Discrimination and Sexual Harassment Prevention Training
This Act lowers the standard for individuals to prove harassment and sexual harassment under Maryland law. Previously, Maryland law adopted Title VII of the Civil Rights Act’s standard of harassment, which required individuals to prove harassment by showing that there was unwelcome conduct based on a protected class and that 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. However, this Act explicitly rejects the “severe and pervasive” standard. Under the Act, harassment is defined as unwelcome and offensive conduct, which need not be severe or pervasive, when the conduct is based on a protected class, and:
- Submission to the conduct is made either explicitly or implicitly a term or condition of employment of an individual;
- Submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
- The conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile taking into account the totality of the circumstances.
The definition for sexual harassment is similar and also rejects the “severe and pervasive standard.” By removing the “severe and pervasive” requirement, Maryland law makes it easier for individuals to prove that they were subjected to harassment.
This Act amends Maryland’s anti-discrimination law to require employers to provide applicants for employment with reasonable accommodations for their disabilities absent an undue hardship. Previously, while the federal Americans with Disabilities Act required employers to provide reasonable accommodations to both employees and applicants, Maryland law only required employers to provide employees with accommodations. Now, Maryland employers with 15 or more employees will also have to provide accommodations to applicants with disabilities, unless the accommodations impose an undue hardship on the employer.
This Act tolls the statute of limitations for individuals to file a civil action alleging an unlawful employment practice under Maryland law while an administrative charge or complaint is pending. Previously, Maryland law required individuals that wanted to file a civil action alleging an unlawful employment practice to 1) timely file an administrative charge or complaint under federal, state, or local law; and 2) file a lawsuit within 2 years after the alleged unlawful practice occurred, or, for harassment allegations, within 3 years after the alleged harassment occurred. Individuals were required to file a lawsuit by the applicable statute of limitations, regardless of whether their administrative charge or complaint was pending. Now, the time for individuals to file lawsuits is stayed while their administrative charge or complaint is pending, giving individuals more time to file a lawsuit for an alleged unlawful employment practice under Maryland law.
Before October 1, 2022, Maryland employers should consider revising any employment policies or handbooks to incorporate the new harassment definitions and provide for reasonable accommodations for applicants.
Additionally, given Maryland’s new tolling law, individuals will have more time to file a lawsuit for an alleged unlawful employment practice. It could be many years until a claim is filed in court. As a result, it is more important than ever for Maryland employers to document the circumstances surrounding any disciplinary actions and employee separations as witness memories will undoubtedly fade with the passage of time.
If you have any questions on these laws, Lerch Early’s employment attorneys are ready to help.