Maryland recently enacted the Disclosing Sexual Harassment in the Workplace Act of 2018 (the “Act”) with an effective date of October 1, 2018. The Act places two types of obligations on Maryland employers. First, Maryland employers with at least 50 employees will be required to submit survey responses to the Maryland Commission on Civil Rights (“MCCR”) with the following data by July 1, 2020 and again by July 1, 2022: (1) the number of settlements made by or on behalf of the employer 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 whether the employer took personnel action against said employee); and (3) the number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.
The Act directs the MCCR to publish aggregate employer survey data on its website and allow public inspection of certain data upon request. The MCCR will report employer responses to the Governor and select committees, but the Act is silent on how they will in turn use the information. This section of the Act requiring employers to report data will automatically expire on June 30, 2023.
Second, all Maryland employers, regardless of size, are prohibited from including in an employment agreement, contract, or policy, any provision that waives an employee’s substantive or procedural rights or remedies to a claim that accrues in the future for sexual harassment or retaliation for reporting sexual harassment. An employer may not take adverse action against employees for refusing to agree to a prohibited waiver, and employers will be liable to employees for reasonable attorney’s fees and costs if they enforce or attempt to enforce a prohibited waiver. The Act provides that this first obligation applies “except as prohibited by federal law,” and the effect, if any, of the new law on arbitration agreements will need to be determined.
To prepare for October 1, employers should review employment agreements and relevant policies to ensure they do not contain a waiver of substantive or procedural rights or remedies regarding future-accruing claims of sexual harassment or retaliation for reporting sexual harassment. Additionally, Maryland employers covered under the Act’s reporting obligations will need to be prepared by 2020 to complete the mandatory survey.
As we previously reported, Congress and several states have responded to the #MeToo movement by introducing legislation that addresses sexual harassment in the workplace.
For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.