As part of a number of employment related bills that passed during Maryland’s last legislative session, the state’s anti-discrimination law has been updated to include an expanded definition of illegal harassment and to redefine sexual harassment via SB 450.
The expansion removes the “severe or pervasive” standard from the definitions of harassment and sexual harassment. In addition, the bill changes the definition of sexual harassment as conduct “that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature.” These changes go into effect on October 1, 2022, and they lower the previously set standard for employees to bring claims of illegal harassment. As a result, it is likely that there may be an increase in claims to the Maryland Commission on Civil Rights and in state court and increases the likelihood that employees will be able to prevail on these claims because the “severe or pervasive” standard has been stripped from the law.
Next Steps for Employers
It is recommended that employers review and update their employee handbook to include policies related to Equal Employment Opportunity and/or Non-Discrimination/Non-Harassment which covers all state protected classes. Employers with existing policies that contain language regarding the need for discrimination or harassment to be considered “severe and pervasive” should remove this verbiage from their policies. Employers should also review any existing definition of sexual harassment in their policies and ensure that the definition is updated to reflect the new definition.
Employers should train managers and supervisors on protected classes, discrimination, harassment and retaliation to ensure they are not making employment-based decisions related to recruiting, disciplinary action, termination, and performance management based on factors that are not job-related or consistent with business necessity.
Employers should also assign a designated person within the organization to whom employees can bring complaints to if they believe they are being discriminated, harassed or retaliated against. Ensure that the person who is designated to receive discrimination, harassment, or retaliation complaints understands their obligation to investigate these claims and acts to ensure the discrimination, harassment, or retaliation stops.
It is also recommended that employers work with their labor attorney to when investigating claims or discrimination, harassment and retaliation.