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What Employers Need to Know About Maryland's New 'Disclosing Sexual Harassment in the Workplace Act of 2018'

In the wake of the #MeToo movement, the Maryland legislature recently passed the Disclosing Sexual Harassment in the Workplace Act of 2018 (Act). The Act was signed by Governor Hogan and will take effect on October 1, 2018.

Summary of New Employer Obligations

The Act contains two significant sets of obligations for Maryland employers.

First, it requires Maryland employers with 50 or more employees to submit to the Maryland Commission on Civil Rights (Commission) on or before July 1, 2020 and on or before July 1, 2022, a short survey on:

  1. The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
  2. The number of times the employer has paid a settlement to resolve a sexual harassment allegations against the same employee over the past 10 years of employment; and
  3. The number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.

The Commission is required to publish or make accessible to the public this information including the identity of the employers and information concerning the number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past ten years of employment. The Commission is also charged with creating an executive summary of the surveys and submitting the executive summary to the Governor.

Second, the Act prohibits employers, regardless of size, from including in an employment agreement, contract or policy any provision that waives any substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based upon sexual harassment, and renders any such agreements, contracts or policies null and void.

Further, the new Act prohibits an employer from taking an adverse action (including discharge, suspension, demotion, or discrimination in the terms of conditions, and privileges of employment or any other retaliatory action) against an employee because the employee refuses to enter into an agreement that contains such a waiver.

Takeaways and Next Steps

The Act is a stern reminder to employers that they will be held accountable in new ways for acts of sexual harassment, and that misguided attempts to evade the requirements of the legislation will not be tolerated. In light of the new Act, the best practice, of course, is for employers to fully commit to eradicating harassment in the workplace. Specifically, employers should do the following:

  1. Eliminate from employment contracts, policies, and agreements any language waiving a substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment;
  2. Conduct in-person harassment training for managers and employees;
  3. Update harassment policies to make sure that they accurately communicate what unlawful sexual harassment is and also the reporting procedures for complaints of harassment;
  4. Explore, or as the case may be, review Employment Practices Liability Insurance policies to make sure that appropriate insurances are in place for sexual harassment claims; and
  5. Work with advisors to establish a plan for investigating harassment complaints.

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 mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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