Ahead of the Curve: Montgomery County Employers – Review Your Workplace Harassment Policies NOW

Bill 14-20 introduces a codified definition for harassment or sexual harassment in Montgomery County workplaces.

As jurisdictions across the country evaluate their laws regarding harassment in the workplace in the wake of the #MeToo movement, Montgomery County has enacted significant changes to its employment discrimination law. Montgomery County joins states like New York and California by departing from the “severe and pervasive” requirement that has been the applicable standard under federal law and the vast majority of jurisdictions for decades. Montgomery County Council voted unanimously to enact Bill 14-20, and the law went into effect on January 15, 2021.

Before this Bill, Montgomery County did not have a codified definition for harassment or sexual harassment in the workplace and claimants had to prove that harassing conduct was sufficiently “severe or pervasive” to be actionable. Now, Montgomery County Code Section 27-19 has been amended to:

1. Define and prohibit certain discriminatory harassment in the workplace;
2. Define and generally prohibit certain sexual harassment in the workplace; and
3. Generally amend the law regarding discriminatory employment practices. 

Under the new standard, harassing conduct need only rise to the level that a reasonable victim of discrimination would consider “more than a petty slight, trivial inconvenience, or minor annoyance” to constitute an employment discrimination claim. This is a significantly lesser standard and permits claims for conduct that was not previously actionable based on perceived, not objective, reasonableness.

Montgomery County employers should update their anti-discrimination training programs and employee handbooks to account for the new standard. This amendment could result in an increased number of workplace harassment claims filed against employers, amount of harassment claims paid to employees, and percentage of workforce subject to harassing conduct. There is potential for increased payouts to plaintiffs, which may increase insurance premiums for employers. This is a brand new area of law so it is too early to evaluate the actual impact of this change, but we will continue to monitor the situation as the standard is tested in Maryland courts.

What You Need to Know

The relevant language added to Section 27-19 is in bold below.

1. A person must not because of the race, color, religious creed, ancestry, national origin, age, sex, marital status, sexual orientation, gender identity, family responsibilities, or genetic status of any individual or disability of a qualified individual, or because of any reason that would not have been asserted but for the race, color, religious creed, ancestry, national origin, age, sex, marital status, disability, sexual orientation, gender identity, family responsibilities, or genetic status:
   1. For an employer:
      1. fail or refuse to hire, fail to accept the services of, discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment; [or]
      2. limit, segregate, or classify employees in any way that would deprive or tend to affect adversely any individual’s employment opportunities or status as an employee; or
      3. subject an individual to harassment, including sexual harassment;
2. Definitions.
   1. The term “discriminate” in subsection (a) includes excluding, or otherwise denying, equal job opportunity or benefits to, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.
   2. The term “harassment” in subsection (a) includes verbal, written, or physical conduct, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims, when:
      • the conduct is based upon an individual’s race, color, religious creed, ancestry, national origin, age, sex, marital status, sexual orientation, gender identity, family responsibilities, genetic status, or disability;
        • submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
        • submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
        • the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile; and
      • a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.
3. The term “sexual harassment” in subsection (a) includes unwelcome sexual advances, requests for sexual favors, or other verbal, written, or physical conduct of a sexual nature, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims, when:
   1. (A)
      • submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
      • submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
      • the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile; and
   2. a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.

Let Selzer Gurvitch help you.

Please contact Patrick Kearney or Lauren Lamb, the author of this article, for help or information about workplace harassment issues.