Effective October 1, 2019, it will be easier for a Maryland employee to bring a claim of harassment against its employer based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, general identity, or disability (“Protected Class”). It is important to take action now and implement policies and procedures to protect your business from potential claims.
The significant provisions of this new law are as follows:
- Broadens the cause of action. A Maryland employer may not engage in harassment against an employee based on a Protected Class. However, an employer is now liable for both the employers’ negligence in causing harassment or continued harassment; and the acts and omissions toward an employee or applicant committed by an individual who: (a) undertakes or recommends action affecting the employee or applicant including hiring, firing, promoting, demoting, and reassigning the employee or applicant; or (b) directs, supervises, or evaluates the work activities of the employee.
In plain English, this means that the employer is responsible for the actions of more people. Regardless of whether someone is a direct supervisor or manager, the employer is responsible for anyone who makes a recommendation to hire someone, directs another employee, or evaluates the work of an employee. This is a very broad definition, especially for workplaces that use peer interviewing or 360 reviews (when supervisors and subordinates review each other). It could subject the employer to more claims.
- Broadens the Employee definition to include Independent Contractors.
- Broadens the Employer definition from 15+ employees to include Employers with 1 employee if a harassment complaint is made.
- Extends Statute of Limitations for an employee to file an administrative complaint to 2 years and a civil action to 3 years.
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When this new law goes into effective, Maryland employers must act decisively to prevent harassment claims and resolve any potential issues quickly and effectively. At a minimum, Employers should consider doing the following:
- Implement a harassment and discrimination policy.
Employers need to have a robust harassment and discrimination policy. It should include a few key points: (i) a definition of what constitutes harassment and discrimination; (ii) who is protected by the policy; (iii) how an employee or independent contractor can make a complaint; and (iv) what you will do after a complaint is made. The complaint process must include at least two senior people so that if an employee feels harassed by one of these people, then he or she has another person to turn to. Managers must also be instructed to report any complaints directly to senior management.
- Train your employees.
Having a policy is a great start, but it does no good if it just sits in the Employee Handbook – you have to train your employees! At least once a year and when an employee starts, you need to provide harassment and discrimination training. This can be in-person or with on-line resources. Your employees (and independent contractors) need to understand the Employer’s policy, the prohibited actions, and the complaint process. You may also consider special training for those that are involved in employment decisions and supervisory roles, as determined by the new law.
- Investigate any potential claims.
If an employee makes a complaint, you must immediately investigate it. If you do not, then it could be considered negligence. Under the law, an employee does not need to file a formal written complaint. He or she only needs to mention it. The investigation should be done as confidentially as possible to minimize disruptions to the workplace and embarrassment of the parties. It can be done either internally or by a third party depending on the situation. The important thing to remember, however, is to act quickly and investigate thoroughly.
- Take Action.
If the investigation reveals that there was harassment or discrimination, then you must act immediately to deal with the present instance and also prevent any future illegal action. The action taken will depend on the severity of the conduct, including individual harassment and discrimination training, unpaid suspension, and immediate termination. These violations should not be taken lightly. It must be remedied or your business could be liable.
Contact the attorneys at McMillan Metro Faerber at (301) 251-1180 for more information.