Maryland recently signed a bill into law that changes what constitutes sexual harassment in the workplace. The new law changes the standard of sexual harassment from “severe or pervasive” conduct to conduct that may be sexual harassment dependent upon the “totality of the circumstances.” The previous standard prevented employees from bringing sexual harassment claims when teasing or fleeting remarks were at issue. However, the new standard relies on a reasonable person standard that provides employees bringing an action with a better chance of winning a sexual harassment case. In this post, we will explain the new law and how employers can best ensure that they properly train employees to prevent sexual harassment cases.
Effective October 1, 2022, Maryland’s definition of sexual harassment in the workplace will no longer depend on whether the conduct was “severe and pervasive.” This change comes after the Maryland legislature passed and the governor signed Senate Bill 450 (SB 450) into law. SB 450 applies to sexual harassment cases in Maryland that occur in the workplace. Courts will use the new law to determine whether sexual harassment occurred.
Previously, Maryland courts used a high bar, the “severe and pervasive” standard, to determine whether sexual harassment occurred. The court’s high bar looked at the following factors: (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether it is physically threatening or humiliating… and (4) whether it unreasonably interferes with an employee’s work performance. These factors proved tough for plaintiffs because courts required the plaintiff to show more than teasing or fleeting remarks that are sexual in nature. Maryland law developed over time to provide defendants with strong defenses to such actions. The defenses were so strong that plaintiffs needed to show that the conduct was so offensive and/or so consistent that the workplace was unbearable.
However, SB 450 creates a standard that looks to the “totality of the circumstances” and the conduct at issue must “unreasonably create a working environment that a reasonable person would perceive to be abusive or hostile.” This new standard differs from the previous standard in that it is a purely subjective standard rather than a hybrid objective-subjective standard. The previous standard looked to objective standards like frequency and whether the conduct was physically threatening. The new standard is purely based on a subjective test that looks at whether a reasonable person would believe that the conduct was abusive or hostile, which makes it easier for plaintiffs to win a sexual harassment lawsuit.
Additionally, SB 450 expressly prohibits courts from using the previous standard and provides examples of the conduct that the new law prohibits. These examples include unwelcome sexual advances and requests for sexual favors. SB 450 mentions these examples expressly, but the new law allows courts to apply the “totality of the circumstances” standard to the conduct at issue to determine whether sexual harassment occurred.
Finally, SB 450 places restrictions on what employers can do. Under SB 450, employers cannot force an employee, either explicitly or implicitly, to expose themselves to sexual harassment as a term or condition of employment. Essentially, employers cannot require an employee to deal with the conduct in order to work as an employee. Further, employers cannot make employment decisions on the basis of exposure to or rejection of sexual harassment.
As we discussed in a previous article, sexual harassment training is not required in the state of Maryland, but employers should take note of their current sexual harassment prevention training, workplace policies, and reporting systems with the passage of SB 450. Although Maryland does not provide guidelines, EEOC guidelines make it clear that employers should provide sexual harassment training to all employees. Employers should understand that the new law's removal of the requirement that behavior must be "severe and pervasive" will make it easier for employees to succeed in their claims for sexual harassment.
While sexual harassment training in Maryland is not specifically required by state statute, this new law sheds light on the importance of providing harassment prevention training to your workforce. Your employees should have a complete understanding of what constitutes as sexual harassment in the workplace and what steps they can take to prevent harassment.
Clear Law Institute’s Online Sexual Harassment Prevention training is frequently updated to ensure that our training complies with all various jurisdictions’ sexual harassment prevention training laws. Our team of compliance advisory experts will continue to closely monitor any future regulatory guidance as a result of SB 450.
If you have any questions about SB450 or Clear Law’s extensive training programs, please contact us at 703-372-0550 or at [email protected].
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances
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