Maryland Employers Must Prepare for New Sexual Harassment Disclosure Obligations

by Saul Ewing Arnstein & Lehr LLP
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With momentum from the #MeToo movement, the Maryland General Assembly overwhelmingly passed the Disclosing Sexual Harassment in the Workplace Act of 2018, which was signed into law by the Governor on May 15, 2018.  The law, which will go into effect on October 1, 2018, will affect employers by prohibiting certain terms in employment agreements and by imposing reporting requirements for sexual harassment allegations.

First, the bill prohibits employers from asking employees to waive any substantive or procedural rights in an employment agreement stemming from sexual harassment or retaliation claims that arise during their employment. Employers are further prohibited from taking any adverse action against an employee who refuses to sign an agreement that contains any of the above limitations on their rights and remedies for sexual harassment claims. Employers who attempt to enforce the prohibited types of terms and conditions in an employment agreement can be required to pay the employee’s attorney's fees and costs.

Second, and of more significance, the bill imposes a reporting requirement to the Maryland Commission on Civil Rights of an employer's history of sexual harassment claims. Specifically, employers with 50 employees or more must report to the Commission on:

  1. The number of settlements the employer has made 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 allegation 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 the parties to keep the terms of the settlement confidential.

The Commission will conduct these surveys twice—in December 2020 and again in December 2022. The Commission will make the information gathered from the surveys publically available, but will keep private the names of the employees. The survey portion of the law contains a sunset provision, meaning there will be no additional surveys after 2022 unless ordered by a new law.

Maryland employers should prepare for this new law by reviewing their existing employment agreements to ensure that no provisions would violate the restriction on employee’s waiving certain rights or remedies for claims of sexual harassment and retaliation. Large employers that are subject to the reporting requirement should begin reviewing their records of sexual harassment claims in preparation for the surveys. Reviewing those records presents an opportune time to revise existing policies on sexual harassment and conduct relevant training sessions for employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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