Sexual harassment is a form of sex discrimination which is 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 prior Maryland state law and current 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.” In general, an isolated event, unless it is egregious, is ordinarily not sufficient to constitute unlawful harassment under Title VII.
Summary of Impact of New Maryland Law
The new Maryland anti-discrimination law significantly increases the exposure of employers for harassment claims by eliminating the requirement that the conduct be severe or pervasive as is required under federal law. Instead, “harassment” is defined to include unwelcome and offensive conduct based on race, color, religion, ancestry or natural origin, sex, age, marital status, sexual orientation, gender identity or disability if one of the three situations described below exists:
(i) Submission to the conduct is made either explicitly or implicitly a term or condition of employment of an individual;
(ii) Submission to or rejection of the conduct is used as a basis for employment decisions affecting the individuals; or
(iii) Based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.
Similarly, the new law defines “sexual harassment” to include conduct which need not be severe or pervasive that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when one of the three situations described above exists.
Comparison of New Maryland Law to Montgomery County’s Anti-Harassment Law
In October, 2020, the Montgomery County (Maryland) Council enacted amendments to the County’s anti-discrimination statute which also substantially lowered the standard for proving unlawful harassment claims. The amendments took effect on January 15, 2021.
Like the new Maryland law, the amendments to the Montgomery County anti-discrimination statute effectively replaced 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 Montgomery County 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 currently applied in cases brought under Title VII, and even lower than the standard imposed by Maryland’s new anti-discrimination law.
The likely impact of the new anti-discrimination law upon employers is very significant. Some important takeaways include the following:
- The new law will expose employers to greater potential liability for harassment claims under Maryland state law then exists under federal law.
- The new standard of proving unlawful hostile work environment harassment – – namely, that under the totality of circumstances, the conduct creates a working environment that a reasonable person would find abusive or hostile – – is a lower hurdle for employees.
- Determinations about whether conduct creates a hostile environment under the new standard seem likely to be inherently factual in nature. It also appears that summary judgment may be granted less frequently in favor of employers in harassment cases brought under the new law.
- Litigation costs may increase significantly if fewer cases are disposed of on summary judgment.
- Employers should review and, if appropriate, revise their existing sexual harassment policies to sufficiently address this new standard.
- Employers should promptly investigate and address (with appropriate corrective action) any allegations of harassment, even if isolated.
- The new law is a powerful reminder to employers of the importance of conducting regular anti-harassment training for all employees.
- Employers should train mid‑level managers how to identify, respond to, and prevent unlawful harassment. Employers should also strongly consider supplementing their anti-harassment training with conflict resolution training.
- 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 new Maryland law.
- Investigate and address with corrective action any allegations on harassment, even if isolated.