It will come as no surprise that while employment discrimination is illegal, the laws in most states and the federal government protect only “employees;” independent contractors are out of luck. Not only that, but in order to file a discrimination claim, the employee has to show that the employer has a minimum number of employees, typically 15.
A new Maryland law,however,allows both independent contractors and employees of businesses with as few as a single employee to bring claims for harassment based on race, color, religion, ancestry, national origin, sex, age, marital status, sexual orientation, gender identity, or disability. The new law (HB 679) was signed by Maryland Governor Larry Hogan on April 30, 2019 and will take effect on October 1, 2019.
The new law will expand the definition of “employee” for purposes of Maryland employment discrimination and harassment claims to include “an individual working as an independent contractor for an employer.” See MD Code Ann. § 20-601(c)(1). This is significant because it will allow independent contractors in Maryland to bring harassment and discrimination claims that they could not pursue under federal law, as Title VII protects only employees. See 42 USC § 2000e(f). (However, contractors working in federal offices may be protected by the “joint employer” doctrine, under which the employment agency paying their salary and the federal agency in which they work can both be considered their “employer” for discrimination purposes. See Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016)).
Maryland will also expand the definition of “employer” for purposes of harassment claims to include employers with at least one employee for 20 or more calendar weeks during the current or preceding year. See MD Code Ann. § 20-601(d)(1). Maryland law previously covered only employers with 15 or more employees. Because the expanded definition applies only to harassment claims, the existing threshold of 15 or more employees remains for discrimination claims that do not involve harassment.
The District of Columbia remains more expansive for discrimination claims, permitting such claims against employers with at least one employee. See D.C. Code § 2-1401.02(10). Under federal law, Title VII applies only to employers with 15 or more employees. See 42 USC § 2000e(b).
The new Maryland law will also expand the time period to file a harassment claim, permitting a complaint to be filed within two years after the date the harassment occurred. See MD Code Ann. § 20-1004(c)(2). The expanded filing period applies only to harassment claims. Other discrimination claims must be filed within 6 months. See MD Code Ann. § 20-1004(c)(1).
This will allow Maryland employees and independent contractors to file harassment claims that would be untimely under federal law: Title VII requires a charge to be filed within 180 or 300 days depending on whether there is a state EEO agency, and requires federal employees to contact an EEO counselor within 45 days. DC law requires complaints to be filed within one year. See D.C. Code § 2-1403.04.
The Maryland law also addresses employer liability for harassment by co-workers and supervisors. It provides that an employer is liable for harassment if the employer’s negligence caused the harassment to occur or to continue. See MD Code Ann. § 20-611(2). This appears to be consistent with the standard for coworker harassment under Title VII, which provides for employer liability where the employer knew or reasonably should have known about the harassment but failed to take appropriate remedial action. See Vance v. Ball State Univ., 570 U.S. 421, 427 (2013).
The standard for supervisor harassment, however, appears to be more expansive than under federal law. Under Title VII, an employer is liable for harassment if the perpetrator is a supervisor and the harassment results in a tangible employment action, such as termination, failure to hire or promote, or reassignment. However, if the harassment does not lead to a tangible employment action, the employer can escape liability by showing that it exercised reasonable care in its efforts to prevent and correct the harassment and the employee who was the victim of harassment unreasonably failed to take advantage of the employer’s preventive or corrective procedures. This is known as the Faragher/Ellerthdefense, as the standard was adopted by the Supreme Court in the companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
By contrast, the new Maryland law appears to provide employer liability for supervisor harassment regardless of whether the harassment results in a tangible employment action. It states that “an employer is liable” for harassment committed by an individual who “directs, supervises, or evaluates the work activities of the employee.” MD Code Ann. § 20-611(1)(II). This suggests that employer liability for supervisor harassment will not depend on whether the harassment resulted in a tangible employment action and Maryland employers will not avoid liability through the Faragher/Ellerth defense.
The new Maryland law also appears to adopt a more expansive view of the individuals whose actions will be analyzed as supervisor harassment. Under federal law, a supervisor for purposes of employer liability for harassment is limited to those who are authorized to take tangible employment actions, such as hiring, firing, promotion, or reassignment of the victim. See Vance, 570 U.S. at 431. However, the Maryland law holds the employer liable for harassment by any person who directs, supervises, or evaluates the work activities of the employee. Because a person who directs or evaluates the work activities of an employee may not be authorized to take tangible employment actions such as hiring, firing, promotion, or reassignment, the Maryland law may prove to be more expansive in terms of the individuals whose actions will trigger employer liability for harassment.
These changes will expand the protections available to workers in Maryland who are being harassed at work. KCNF has attorneys licensed in Maryland who can advise and assist such workers with respect to the new law.