Executive Summary: Maryland has enacted legislation, effective October 1, 2018, requiring employers to submit information to the state regarding settlements of sexual harassment claims. The new law requires an employer with 50 or more employees to electronically file a “survey” with the Maryland Commission on Civil Rights stating (a) the number of settlements entered into involving sexual harassment allegations by an employee; (b) the number of times the employer has paid a settlement to resolve a sexual harassment allegation involving the same alleged harasser over the last 10 years; and (c) the number of sexual harassment settlements entered into that contain confidentiality provisions. The statute also provides that the survey shall contain a space for employers to report whether personnel action was taken against the alleged harasser referenced in (b) above. The surveys must be filed on or before July 1, 2020, and again on or before July 1, 2022. This reporting requirement “sunsets,” or expires, on June 30, 2023.
Employers may be wondering what the Commission will do with this potentially embarrassing information. The law directs the Commission to post on its website aggregate data of the responses from employers for each of the items listed above. More troubling, however, is a provision in the statute allowing public inspection of the responses from specific employers in regard to the number of times that employer paid a settlement to resolve sexual harassment claims involving the same harasser. The Commission will also review “a random selection” of survey responses and prepare an executive summary for the Governor and the legislature.
The new statute also provides that any provision in an employment agreement or policy that waives any “substantive or procedural right or remedy” as to claims of sexual harassment, or retaliation for reporting such harassment, accruing in the future is void as against public policy. This provision would basically outlaw agreements requiring employees to arbitrate harassment claims, or to waive the right to a jury trial in harassment cases. This part of the statute is not subject to the 2023 sunset provision.
A number of questions exist as to the provisions of this statute and how it will be interpreted. Perhaps the Commission will issue guidance for employers when it creates the actual survey form. Nonetheless, Maryland employers, and out-of-state employers with 50 or more employees in Maryland, should start preparing now to collect the information necessary to respond to this mandated survey.
If you have any questions regarding the new law or other labor or employment issues, please feel free to contact the author of this Alert, Jay Fries, jfries@fordharrison.com, who is a partner in our Baltimore and Tysons Corner offices. Of course, you may also contact the FordHarrison attorney with whom you usually work.