The Maryland General Assembly passed, and Governor Hogan signed, legislation emanating out of the state’s Workplace Harassment Commission, which completed its work last fall. My summary of the commission’s work is found here.
The new law makes important changes to the handling of workplace harassment claims in Maryland.
The General Assembly formed the Workplace Harassment Commission to study and make recommendations relating to sexual harassment experienced by and at the hands of legislators. As a workplace, the state legislative complex is an unusual place. For the 90-day session, delegates and senators, staffers, professional lobbyists, citizens, and full-time state employees all mix in the house and senate office buildings. More people will be covered by the prohibition against illegal harassment, and now all state employees must be trained every two years on sexual harassment prevention.
The new law expands protection to non-state employees, too. Under current federal law and, until October 1, 2019, Maryland law, an employer with fewer than 15 full-time employees has no liability for a hostile work environment caused by a protected category such as gender or race. The new law changes that in Maryland. First, it adds a definition of harassment, which is illegal if based on any protected category:
“Harassment” includes harassment based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability.
(New Maryland State Government Article, § 20-601(h)).
The new law also clarifies that an employer is liable for the actions of the harasser under certain circumstances. When the harasser has power over or recommends decisions on hiring, firing, demotion, or the victim’s evaluations or assignments. In addition, an employer’s negligence leading to the harassment or continuation of the harassment is specifically made actionable.
Most important, perhaps, is the expansion of the coverage of the law. Now independent contractors are covered, and an employer of even a single employee is now covered under the anti-harassment law of the state. Further, given the research showing how traumatized victims of harassment often refrain from complaints, the new law gives employees two years within which to file a complaint, and three years within which to sue.
If an employee makes a complaint of harassment based on one of the protected categories listed above, an independent workplace investigation may be called for. It should be considered if there is no human resources department; if the HR department does not have authority to take action against the alleged harasser (for example, a senior vice president), or if the accused harasser is part of the HR department. Other situations include repeated complaints against the same person, such that the employer’s good faith or lack of negligence is in question.