October Brings Increased Legal Exposure for Maryland Employers for Workplace Harassment Claims

Seyfarth Synopsis: Maryland has expanded employer liability for workplace harassment this week.  Legislation taking effect on October 1, 2019, amended Maryland’s non-discrimination laws by expanding the definition of employee to include independent contractors, eliminating certain defenses to claims of harassment by supervisors, and extending the statute of limitations for workplace harassment claims.

Maryland made several changes to its non-discrimination law, the Maryland Fair Employment Practices Act (FEPA), effective this week.  Although most of these changes are aimed specifically at workplace harassment, the definition of “employee” under § 20-601(d) has been modified for all purposes.  Employee is now defined to include an “individual working as an independent contractor for an employer.”  The consequence of this change is that independent contractors are now entitled to many of the same protections under Maryland law as “employees.”  For example, the new definition is implicated in the statute’s requirement to provide reasonable accommodations to employees with a disability and the prohibition on retaliation against employees for engaging in protected activity.

Additionally, and highlighting the primary focus of the legislative changes, the statute now expressly prohibits employers from “engaging in harassment of any employee.”  This, in conjunction with the new definition of employee, entitles independent contractors to protections against workplace harassment based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity or disability.  (The legislation also provides a statutory definition of harassment, but defers to its “judicially determined meaning” and thus does not appear to alter what conduct constitutes actionable harassment.)

The new law also couples increased employer liability with these increased protections.  First, for purposes of workplace harassment claims, the definition of employer has been expanded to include a person engaged in industry or business that has one or more employees rather than 15 or more employees for other employment discrimination claims. 

Additionally, the law now states that an employer “is liable” for workplace harassment of an employee or applicant by any individual who directs, supervisors or evaluates the work activities of the employee.  This provision is significant because it removes affirmative defenses previously available to an employer for supervisor harassment in the absence of a tangible employment action.  It is also eliminates the requirement that employees take advantage of protective or corrective measures provided by the employer, such as making an internal report, as a precursor to employer liability based on alleged harassment by supervisors. 

Training and prevention are thus of even greater import where post-harassment corrective measures may not be considered a defense.  The law also explicitly imposes employer liability for harassment by an individual who undertakes or recommends a tangible employment action affecting the employee, or if the negligence of the employer led to the harassment or continuation of the harassment.  However, these latter provisions do not represent a significant departure from the standards currently employed in evaluating harassment claims under previous versions of FEPA or its federal anti-discrimination law counterparts.

And as a final hurdle for employers, employees will also have more time to file harassment claims.  The time for employees to file an administrative complaint of workplace harassment  with a local human relations commission (such as the Maryland Commission on Civil Rights) has been extended from six months to two years.  The statute of limitations for filing civil actions alleging workplace harassment was also expanded from two to three years from the date of the alleged harassment. 

In short, these changes to the FEPA expand the scope of individuals who can file harassment claims, the instances of alleged harassment for which an employer is liable, and the time period in which that potential liability persists.  As such, although the law does not impose any new affirmative obligations, it is a good time for employers to revisit policies and practices with respect to independent contractors and make sure that supervisors have appropriate training and guidance to prevent or limit conduct that could be construed as workplace harassment.