On October 1, 2022, the definition of sexual harassment and harassment for the purposes of bringing civil rights claims under Maryland law will be significantly expanded. Prior to the adoption of SB 450 the definitions of “harassment” and “sexual harassment” under Maryland law tracked the requirements of federal civil rights law. Under federal law, claims of workplace harassment or sexual harassment must involve conduct which is “severe or pervasive enough to create an objectively hostile or abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). However, with SB 450, Maryland departs from the requirement of “severe and pervasive” conduct in three distinct situations:
- Submission to the conduct is made either explicitly or implicitly a term or condition of employment of an individual;
- 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.
With this change, Maryland has significantly expanded the scope of conduct which may support a claim of “harassment” or “sexual harassment.” In particular, the exception directing an assessment of the totality circumstances will require factual development of claims which once would have been rejected preliminarily for a failure to allege conduct sufficiently severe or pervasive to state a claim. With these new definitions, Maryland employers should expect the number of “sexual harassment” and “harassment” complaints made pursuant to Maryland law to increase. Similarly, with the new relaxed standard, an increased number of claims should be expected to make it through the administrative complaint investigation process and to survive the preliminary stages of litigation.
If you have questions about the implications of these changes in Maryland law, PK Law has counsel experienced in advising employers in relation to allegations of workplace sexual harassment and discrimination.
Mr. Burkhouse is a Member with PK Law and is part of the firm’s Education, Labor and Employment Group. As part of Mr. Burkhouse’s employment law practice he counsels and represents employers regarding employment discrimination claims arising under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Mr. Burkhouse also advises employers with regard to non-compete agreements, restrictive covenants, arbitration agreements, trade secrets, confidentiality agreements, and employee hiring and termination procedures. Mr. Burkhouse can be reached at (410) 740-3150 or firstname.lastname@example.org.