Montgomery County Employers: Enhanced Workplace Discrimination Protections are Quickly Approaching

On January 15, 2021, employers in Montgomery County, Maryland will be subject to a new workplace discrimination law passed by the Montgomery County Council. This law represents a significant departure from traditional employment law that will make it easier for plaintiffs to win cases before administrative agencies and in court. Montgomery County employers are encouraged to update their discrimination and, especially, their harassment and sexual harassment policies and update their training modules to include these new standards.

Montgomery County Bill No. 14-20 prohibits employers from subjecting an individual to harassment, including sexual harassment, based upon the person’s protected class (race, color, creed, sex, marital status, sexual orientation, etc.). The bill defines harassment to include verbal, written, or physical conduct, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims, under the following circumstances:

(a) the conduct is based upon a person’s protected class;

(b) submission to the conduct is made either explicitly or implicitly a term of 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

(c) a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.

The Bill further defines sexual harassment to include 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, under the following circumstances:

(a) submission to the conduct is made either explicitly or implicitly a term of 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

(b) a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.

Importantly, this new law alters the traditional “severe and pervasive” standard for harassment in traditional harassment and sexual harassment claim analysis.

Meredith S. Campbell Chair, Employment and Labor Group
Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550

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