October 1 in Maryland is the time when the leaves are changing, there is a chill in the air, and many of the Maryland General Assembly’s bills that were passed in April take effect. Two upcoming laws should be on employers’ radar: the expanded definitions of illegal harassment and reasonable accommodations for applicants with disabilities.
1. Definitions of Harassment and Sexual Harassment Have Expanded (SB450)
Maryland’s antidiscrimination law will vastly expand the liability of employers under state law. Previously, the definition of “harassment” in Maryland was consistent with federal law in requiring conduct to be “severe or pervasive,” among other things, in order to constitute unlawful harassment.
However, under the new definition, unwelcome and offensive conduct does not need to be severe or pervasive in the following three scenarios:
- submission to the conduct is made a term or condition of an individual’s employment, whether explicitly or implicitly;
- submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
- based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.
Akin to the new definition of harassment, the definition of “sexual harassment” was also expanded to note that conduct does not have to be severe or pervasive in the same three situations mentioned above.
What Does This Mean for Employers?
The expanded definitions lower the standard for illegal harassment, and employers can expect more employees bringing harassment claims before the Maryland Commission on Civil Rights and state court.
But this change may not be as massive as some might think. A few states including New York, Virginia, and California have already removed the severe or pervasive requirement, and this change has even been seen on the county level in Montgomery County in 2021. Federal and Maryland case law has held that many forms of conduct that might be alleged to be harassment are just mere annoyances and thus are unlikely to rise to this new standard.[1] Courts have already established that they “must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[2]
2. Reasonable Accommodations for Applicants with Disabilities (HB78)
Employers’ obligations to reasonably accommodate an employee’s disability have been expanded to mimic federal law requirements under the Americans with Disabilities Act (“ADA”). Starting October 1, 2022, an employer is required to reasonably accommodate an employee’s disability and an applicant’s disability. Previously, Maryland’s disability discrimination law was limited to employees. An employer will soon be responsible under state law to make reasonable accommodations for a known disability of an applicant for employment. Under both Maryland and federal law, an employer does not need to provide an accommodation that poses an undue hardship.
We recommend that employers revisit their existing hiring practice to ensure compliance with this new law, especially for smaller employers that did not meet the 15-employee size threshold for the ADA.
We will closely monitor any developments and are happy to discuss strategies to ensure compliance with these new laws.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
[1] See,e.g.,Forman v. Bd. of Educ. of Montgomery Cnty., No. 217404, 2002 WL 33957430, at *3 (Md. Cir. Ct. Mar. 29, 2002) (finding that actions were not severe or pervasive when testimony on the subject was “very vague and simply stated that the environment as a whole was not good.”); Lawrence v. Geren, No. CIV. JFM-07-3455, 2008 WL 4680566, at *3 (D. Md. Oct. 17, 2008) (holding thatthree isolated comments do not satisfy the requirement of conduct being severe or pervasive).
[2] Ki v. Svnicki, Civ. No. JH-20-130, 2021 WL 3857855, AT *8 (D. Md. Aug. 30, 2021).
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