Maryland’s New Harassment Definition and Extended Tolling Period Pose Increased Challenges for Employers

Two recent developments out of Annapolis pose new challenges for Maryland employers confronted with claims of harassment. Effective October 1, 2022, Maryland’s employee-friendly Senate Bill (S.B.) 450 and S.B. 451 lowered the applicable legal standard required to establish a harassment claim and extended the period within which a person may bring a civil action alleging an unlawful employment practice.

New Harassment Standard

With the enactment of S.B. 450, Maryland has carved out a potentially easier path for employees to prevail on claims that would not have previously risen to the level of legally actionable harassment. Prior to S.B. 450, Maryland had applied the traditional “severe and pervasive” standard when evaluating harassment claims (a standard that still applies in most other jurisdictions). Under the new standard, Maryland courts will now evaluate harassment claims based instead on the “totality of the circumstances,” which opens the door for employees to pursue claims in instances where alleged harassing conduct may have been either less frequent or less egregious than what was required under the previous standard. The “totality of the circumstances” standard could result in lengthier fact-finding periods in harassment disputes, make winning summary judgment more difficult, and make it easier for Maryland employees to bring and ultimately prevail on harassment claims.

S.B. 450 also explicitly includes sexual harassment within the definition of “harassment” (which was not the case in prior legislation) and further mandates sexual harassment prevention training for state government employees.

Extended Tolling Period

S.B. 451 establishes a longer time period to bring civil actions for unlawful employment practices. Specifically, it provides that all timing limitations on filing a civil action alleging an unlawful employment practice are tolled while an administrative charge remains pending. This tolling could weaken employers’ potential timeliness defenses by giving employees a longer window of time to file subsequent civil actions in the wake of the administrative charge process.

Ogletree Deakins’ Washington, D.C., office will continue to monitor developments with respect to Maryland’s evolving employment legislation and will provide updates on the firm’s Maryland blog. Important information for employers is also available via the firm’s webinar and podcast programs.