All employers know that maintaining a workplace that is free from sexual harassment is the right thing to do. A harassment-free workplace shows respect for all employees at work and creates a safe work environment. It also happens to be good for business. Complaints of sexual harassment are unsettling, distracting, time-consuming, and expensive.
But from an employer’s perspective, the law traditionally has established a reasonably high threshold for a complaining employee to win a lawsuit based on sexual harassment. According to the broadly adopted standard for claiming sexual harassment, an employee complaining of harassment must be able to prove that the wrongdoer’s conduct was “severe and pervasive.” In other words, the bad conduct had to be pretty serious in nature (“severe”) and it had to occur more than once (“pervasive”). Historically, that has been a high standard to meet.
In Maryland, however, that is about to change.
During the 2022 Legislative Session that concluded on April 11, 2022, the Maryland General Assembly passed a new law that removed the requirement that sexual harassment be “severe and pervasive” before the conduct violates the law. The law no longer requires that the bad conduct be “really” bad, or that it happen repeatedly. Instead, based on the totality of the circumstances, a judge or jury simply must determine that the conduct unreasonably created a working environment that a reasonable person would perceive to be abusive or hostile. Based on this new standard, could a single suggestive remark be considered sexual harassment? Maybe.
This new law has not yet gone into effect – but it will soon, on October 1, 2022.
What Should Employers Do?
There is not much time left before this new law goes into effect. During this time, there are two things that all prudent employers must do.
- First, it is time to review the company’s Employee Handbook. For those employers who have been meaning to have their employee manual reviewed for a couple of years but have not quite gotten around to it, now is the time to get it done. This new law is one of several employment-related changes that must be incorporated into the company’s handbook. But even for those companies who have their handbooks reviewed annually, it is time to review the company’s sexual harassment policy.
- Second, we believe that it is more crucial than ever to schedule supervisor training on sexual harassment. At the very least, the change in the legal standard must be conveyed to each company’s front-line supervisors so they know what standard they will be held to. Moreover, in the event of a charge of harassment, it is important for the company to be able to show that it took all the reasonable steps it could to prevent such an occurrence.
At Luchansky Law, we recognize that the employment laws that affect our clients’ businesses change all the time. We consider it our mission to keep employers well-informed of the employment laws that affect their business, and to perform the tasks that are necessary to protect them. Whether an employer requires a review of its handbook, needs to provide additional training to its supervisors, or requires a defense of a complaint before the EEOC, or federal or state court, we are as committed to your protection and growth as you are. For answers to all your employment law questions and assistance with issues in the workplace, call us at Luchansky Law at (410) 522-1020.