Montgomery County Makes It Easier for Employees to Prove Unlawful Harassment
On October 6, 2020, the Montgomery County (Maryland) Council enacted amendments to the county’s anti-discrimination statute, which substantially lowers the standard for proving unlawful hostile harassment claims.
The amendment was signed into law on October 16, 2020 and takes effect on January 15, 2021. As discussed below, the amendments are likely to have a profound impact upon employers.
Sexual harassment is a form of sex discrimination prohibited by local, state, and federal law (Title VII). There are two types of unlawful harassment: (i) quid pro quo harassment (“you do this for me, and I do that for you”) and (ii) the more common type of harassment, known as hostile work environment.
Under current county, Maryland state, and federal law, in order to establish unlawful harassment, an employee must:
- Establish that the conduct was unwelcome;
- Was based upon the sex of the employee;
- Was sufficiently “severe or pervasive” to alter the employee’s conditions of employment and to create an abusive work environment; and
- The wrongdoing is imputable on a factual basis to the employer.
These requirements also apply to harassment claims based upon other unlawful factors, such as age and race.
The “severe or pervasive” prong has both a subjective and an objective component. With regard to the subjective component, an employee must show that she or he subjectively perceived, as a reasonable person would perceive, that the environment was hostile or abusive.
The conduct must also be objectively “severe or pervasive” and have a substantial effect on the terms or on the conditions of employment. The “severe or pervasive” requirement has proven challenging for employees to satisfy. The Fourth Circuit (where Maryland is located) has noted that boorish and crude behavior alone is not sufficiently “severe or pervasive” to be actionable under Title VII. As the Fourth Circuit explained: “While no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.”
Summary of Impact of New Legislation
The amendments to the Montgomery County anti-discrimination statute effectively replace the requirement that workplace conduct be sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes, with the requirement that a reasonable person in the employee’s shoes “would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”
Although the law still contains an element of objective reasonableness, the employee is only required to establish that the conduct was more than a trivial inconvenience, minor annoyance or petty slight (and not that the conduct was sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes) – which is a significantly lower standard than the one used under Maryland’s state anti-discrimination law and under Title VII.
The likely impact of the amendments upon employers is very significant. Some important takeaways include the following:
- The Montgomery County amendments will expose Montgomery County employers to greater potential liability for harassment claims than employers in other parts of the state for the same actions.
- The new standard of proving unlawful hostile work environment harassment – namely, that a reasonable person would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance – seems to be a relatively low hurdle.
- The new standard imposes, to some degree, a kind of civility code in the workplace.
- Determinations about whether conduct was objectively more than a petty slight, trivial inconvenience, or minor annoyance are likely to be inherently factual in nature. It also seems likely that summary judgment will be granted less frequently in harassment cases brought under the Montgomery County Code.
- Litigation costs will likely increase significantly due, among other things, to the likelihood that fewer cases will be disposed of on summary judgment.
- Employers should review and, if appropriate, revise their existing sexual harassment policies to sufficiently address this new standard.
- To the extent employers harbor any doubt about the importance of conducting regular anti-harassment training for all employees, the amendments remove all such doubt.
- Employers should strongly consider supplementing their anti-harassment training with conflict resolution training.
- Employers should train mid-level managers how to effectively manage employees.
- Employers should review their existing insurances, including Employment Practices Liability Insurance (EPLI), to determine whether such insurances provide sufficient protection for harassment claims brought under the anti discrimination provisions of the Montgomery County Code.
Marc R. Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information on what your company should consider when it comes to coronavirus in the workplace, contact Marc at 301-657-0184 or [email protected].