New Maryland Law Broadens Protections Against Workplace Harrassment

A new law, that takes effect October 1, 2019, expands the protections Marylanders have against workplace harassment.  The new law:

• Allows independent contractors to claim workplace harassment.
• Extends the time for individuals to file administrative claims for workplace harassment to two years (up from 180 days).  
• Expands the scope of our State's anti-discrimination law to employers with one or more employees (down from 15 employees).    
• Clarifies that harassment based on the following is prohibited: race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability.

Facing workplace harassment?  Consult a Maryland Employment attorney.

Maryland's “Disclosing Sexual Harassment in the Workplace Act of 2018"

Maryland has a new law effective October 1, 2018, called the Disclosing Sexual Harassment in the Workplace Act.  One of the Act's main provisions says this:

Except as prohibited by federal law, a provision in an employment contract, policy, or agreement 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 on sexual harassment is null and void as being against the public policy of the State.

What does this mean?  Some employers require that employees sign employments agreements that limit the employees' ability to pursue their legal claims.  One example is a provision waiving an employee's right to a trial by jury in any future claim against his or her employer.  Such a provision "waives" a "procedural right" for "asserting" a claims "based on sexual harassment.   Under this new law, the provision is void. 

Employment agreements and employee handbooks attempt to limit employment claims in all kinds of different ways, including ways that may appear neutral on their face.  For example, a provision in an agreement might select a different State's law to apply to employment-based claims. Such a choice-of-law provision could well be viewed as waiving a Maryland claim (as is the case for claims under the Maryland Wage Payment and Collection Law).

One issue that will likely arise soon is whether a mandatory arbitration clause is void under this new law.  Such clauses are generally governed by the Federal Arbitration Act.  The meaning of the new law's introductory phrase, "except as prohibited by federal," could be put to the test.  A Court would have to determine whether Federal law prevails and preempts the effect of the new Maryland law.       

Harassed at Work in Maryland? Here are a few things to consider.

Not all harassment is legally actionable.  "Harassment" in the common sense of the work can range from perceived slights to outright physical abuse.  While you may being treated unfairly, there may no legal avenues for relief.  It is in the nature of the word "harassment" that it can describe varying levels of conduct.

But some workplace harassment is actionable.  You should contact an attorney for help when you believe you are being subject to any sort of conduct that approaches anywhere near the level of actionable harassment.  

Harassment based on a protected category, like age, race, gender, etc., may be actionable.  The EEOC defines such actionable harassment as: 

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive."

Certain severe harassment may also make you eligible for an immediate peace or protective order from the District Court of Maryland or a Commissioner.

If you are facing harassment (even the non-actionable type), should you quit?  I have previously discussed this exact question.   Your decision has legal implications (as an example, quitting could have an affect on your eligibility for unemployment benefits).  Your decision has life implications. You should consult the people you trust (an possibly consult counsel).  The answer is that there is no easy answer.  

EEOC Wins Maryland Jury Verdict of $350,000 for Sexual Harassment and Retaliation Victims

In Baltimore, the EEOC won a recent jury trial on behalf of three employee accusing their bosses of sexual harassment and retaliation.    Lind Luz was the lead plaintiff.  She was the receptionist in a physician's office.   After Ms. Luz repeatedly rejected the advances of the physician CEO  and the CFO, the practice began retaliating against her by issuing to her unwarranted  discipline and rescinding approved leave, which eventually culminated in her  retaliatory termination.   The CEO and CFO sexually harassed two other employees, a nurse and a study coordinator.  The jury  returned a verdict finding  that three women were entitled to compensatory damages in amounts ranging  from $4,000 to $10,000, and awarded each claimant punitive damages in the amount of $110,000.

Protecting Employee Rights in the State Courts of Maryland

The Third Annual Maryland Employment Lawyers ("MELA") Conference, "Protecting Employee Rights in the State Courts of Maryland," will be Friday, September 28, 2007 at the Columbia Sheraton.

There will be an exciting line-up, focused on how to succeed in the Maryland state courts. Special attention will be given to the new private right of action under 49B, Maryland's anti-discrimination law. Judges from various circuit courts in Maryland, and from the Office of Administrative Hearings, will give an insider's view to their jurisdictions. You'll also learn how to run a "lean and mean employment law practice," and get tips from seasoned employment litigators about how to win employment cases in the circuit courts (especially under local county codes). A full agenda is below and a brochure/registration form is attached.

8:30-9:00 a.m. Registration and Continental Breakfast

9:00-10:00 a.m. How to Run a Lean and Mean Employment Law
Practice

Moderator: Mary T. Keating, Esq.
Law Office of Mary T. Keating

Daniel A. Katz, Esq.
Andalman & Flynn, PC

Gwenlynn Whittle D'Souza, Esq.
Lippman, Semsker & Salb, LLC

Peter Holland, Esq.
The Holland Law Firm, PC

Break

10:15-11:15 a.m. Mechanics of the New Private Right of Action
under 49B

Moderator: Deborah Thompson Eisenberg, Esq.
Brown, Goldstein & Levy, LLP

Kathleen Cahill, Esq.
Law Offices of Kathleen Cahill, LLC

Glendora Hughes, Esq.
General Counsel, Maryland Commission on
Human Relations

11:15-12:15 p.m. Tips for Litigating Discrimination Claims
under the Local County Codes

Moderator: Thomas Gagliardo, Esq.
Gagliardo Law Firm

Linda Hitt Thatcher, Esq.
Thatcher Law Firm, LLC

Rebecca N. Strandberg, Esq.
Rebecca N. Strandberg & Associates

Leizer Goldsmith, Esq.
The Goldsmith Law Firm, LLC

Tammany M. Kramer, Esq.
Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC

12:15 - 1:30 p.m. LUNCH

Keynote Speaker:
The Honorable Thomas Perez, Secretary Maryland Department of Labor, Licensing & Regulation

1:45 - 2:45 p.m. How to Litigate a State Administrative Hearing
at the OAH

Moderator: James E. Rubin, Esq.
Rubin Employment Law Firm, P.C.

The Honorable Thomas Dewberry
Chief Administrative Law Judge, OAH

The Honorable Bernard McClellan
Administrative Law Judge, Deputy Director of Quality Assurance, OAH

The Honorable Wayne Brooks
Administrative Law Judge, Deputy Director of Operations, OAH

Jessica Kaufman, Assistant Attorney General Maryland Department of Labor, Licensing and Regulation

Break (Sponsored by JMW Settlements)

3:00 - 4:15 p.m. Views from the Bench: Litigating in Maryland's Circuit Courts

Moderator: Jerry R. Goldstein, Esq.
Bulman, Dunie, Burke & Feld

The Honorable Evelyn Omega Cannon
Circuit Court for Baltimore City

The Honorable Toni E. Clarke
Circuit Court for Prince George's County

The Honorable Ronald B. Rubin
Circuit Court for Montgomery County

4:15 - 5:00 p.m.
MELA Happy Hour

Maryland Court of Appeals Grants Cert. in Two Employment Law Cases

The Maryland Court of Appeals will review two employment law cases in its September 2006 term. Both cases arise in Montgomery County. The issues presented are set forth below.

Sterling v. Atlantic Automotive (Ct. Spec. App. unreported) will address the extent an employer is vicariously liable for the harassment of its employee. Will the Court adopt the United States Supreme Court's Faragher/Ellerth anaylsis? In today's Haas opinion, the Court specifically declined to follow U.S. Supreme Court precedent on a statute of limitations issue.

Friolo v. Frankel will decide the extent to which a plaintiff can recover attorney's fee under the Wage Payment and Collection Law for work performed on a successful appeal overturning a trial judge's fee award. The Court of Special Appeals denied the plaintiff's claims for appellate fees.

Should I Stay or Should I Go? What to do when you are harassed at work.

Clients facing difficulties at work often ask me: "Should I just quit?" I often respond that there are two ways to look at the question.

1.The Legal Answer. Quitting will not usually help the employee who is considering taking legal action against his or her employer. It is better to consult an attorney, have that attorney file your claim, and endure while the legal process runs its course.

Quitting may cutoff any claim for back pay, unless your working conditions are so intolerable that you can prove a constructive discharge(discussed here)

Quitting may make it more difficult to collect unemployment benefits unless the employee can prove he or she quit for "good cause." Good cause is explained here at page 16.

Most anti-discrimination and wage and hour statutes have provisions that forbid employers from retaliating against an employee who complains in good faith that his or her employer is violating the law. As a result, an employee who make his or her complaint known to his or her employer has an added measure of legal protection. The United States Supreme Court recently addressed Title VII's anti-retaliation protections in the Burlington Northern case.


2.The Reality Check: If going to work is so bad that it is affecting your emotional health, you should consider quitting. You should weigh the potential legal advantages of sticking it out against the emotional toll of continuing to work at you current job. I often tell unhappy employees that ending your current employment relationship will not help your legal claim, but may be the best decision you ever make since it gives you the opportunity to find a better job.

Maryland District Court Dismisses Sexual Harassment Claim But Allows Retaliation Claim to Proceed

Carole Sraver's boss, Dr. Jeffrey Owen, allegedly made the following comments:

"Good morning/afternoon Carole, did you get laid last night?"

"How's the sex life?"

"You'll get a bonus when I get a blow job."

I have a present for you that is "about six inched long with a gold tip . . . "

"Your boobs are bigger than my wife's."

"I am on a liquid diet to make my dick look bigger."


Sraver complained about her Owens's comments, but continued to perform her job. In fact, she prospered earning raises and bonuses.

Shortly after Sraver complained about one of her Owens's comments, her employer, Surgical Monitoring Services (SMS) terminated her employment. The company gave no explanation for its decision to terminate Sraver at the time it took the action. It later claimed that she made an administrative error that cost the company $5 million.

Sraver sued for: (1) sexual harassment; and (2) retaliatory termination. After discovery, SMS moved for summary judgment. The Court dismissed Sraver's sexual harassment claim finding that the alleged harassment was not severe or pervasive enough to create an abusive working environment. The Court noted that Dr. Owens never threatened Sraver, many of his comments were directed to several people, and that despite the alleged harassment, Sraver thrived at SMS.

The Court allowed Sraver's retaliation claim to proceed. The Court relied on SMS's failure to mention the alleged $5 million mistake at the time of Sraver's termination. Also, Sraver claimed that SMS's attorney and management directed her to take the actions the company now claimed were erroneous.

Employer Ordered To Turn Over Audio Tapes of Plaintiff's Prior Testimony

An employer being sued for sexual harassment refused to turn over audio tapes of the plaintiff's testimony in prior workers' compensation and domestic proceedings. The employer contended that because it intended to use the tapes for impeachment purposes only, the tapes were not discoverable. Magistrate Judge Day (acting as the trial judge)ruled to the contrary. Because the tapes had a substantive purposes, i.e., to prove that the employer was not the cause the employee's emotional distress, the Court ordered the employer to produce the tapes to the plaintiff.

Rumors of Sexual Activity: Title VII -- No; Defamation -- Yes

In reviewing some of the United States District Court for the District of Maryland opinions, I came across Bystry v. Verizon Services Corp., CCB-04-01 (March 31, 2005). There, an internal security employee's statements that Ms. Bystry was involved in a sexual relationship with a co-worker led to her termination. Ms. Bystry claimed the statements evidenced gender discrimination and were defamatory.

Judge Blake granted Verizon's motion for summary judgment on Ms. Bystry's gender discrimination claim. The Court held that the rumors of Ms. Bystry's sexual activities were not based on her gender. "[D]iscrimination based solely on sexual activity or rumors of sexual activity is insufficient."

As for defamation, Judge Blake found sufficient evidence that Verizon employees spread the rumors intentionally or recklessly. The security employee who made the statements claimed she got her information from other Verizon employees. However, these other employees specifically denied they ever made statements about Ms. Bystry's sexual activities.


James Rubin

These materials have been prepared by The Rubin Employment Law Firm, P.C. for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.