A Legal Guide for Employers Navigating Federal and Maryland Harassment Law
Many employers treat sexual harassment policies like a fire extinguisher mounted on the wall: displayed for compliance purposes, but rarely maintained, tested, or taken seriously until there is smoke. The problem is that by the time it is needed, it is often too late to know whether it works, whether anyone is trained on how to use it, or whether it is sufficient to contain the fire raging beneath the surface. When sexual harassment policies are deficient, ambiguous, or inconsistently enforced, they become one of the most expensive risks a business can face. This is more than just a policy problem; it is a critical operational deficiency.
A strong sexual harassment framework, therefore, is not just compliance, it is foundational. It determines whether concerns are surfaced early or allowed to fester, whether investigations are consistent or ad hoc, and whether an employer can demonstrate reasonableness when scrutinized. This foundation does more than simply avoid liability after the fact; it builds a system that prevents small problems from becoming crises.
This article outlines the applicable legal framework, the real-world consequences of inaction, and the practical steps every employer should take to protect their business and their employees.
Understanding the Legal Landscape
Sexual harassment is a form of sex-based discrimination prohibited under both Title VII of the Civil Rights Act of 1964 and Maryland’s Fair Employment Practices Act (MFEPA). Under these laws, employers face significant exposure when they fail to implement strong anti-harassment policies, establish clear reporting procedures, and provide meaningful training to their workforce.
Federal law recognizes two forms of sexual harassment. Quid pro quo harassment occurs when a supervisor conditions a job benefit, such as a promotion or raise, on an employee’s submission to sexual advances, or when an employee suffers negative consequences for rejecting those advances. Hostile work environment harassment involves unwelcome conduct based on sex that is severe or pervasive enough to alter the conditions of employment and create an abusive working atmosphere.
Maryland employers face an even more demanding standard. Under MFEPA, harassing conduct need not be severe or pervasive to be actionable. This lower threshold means that conduct which might not rise to the level of a federal claim can still expose a Maryland employer to liability. Given this reality, Maryland employers must be especially vigilant in preventing and responding to workplace harassment.
While sexual harassment is commonly associated with inappropriate physical contact, it encompasses conduct beyond that. Verbal harassment, for instance, arises often in the workplace when coworkers making unwelcome jokes with sexual innuendo, repeated date requests, or commentary about someone’s physical appearance. Non-verbal harassment can involve staring, following someone inappropriately, giving unwanted gifts, or displaying sexually suggestive materials.
One of the most common responses employers encounter when there is an allegation of sexual harassment is, “I was only joking.” But under the law, intent of the actor is irrelevant. To the contrary, the alleged victim’s perception is the focus. The legal standard considers both an objective and subjective component. The objective component looks at whether a reasonable person would find the conduct offensive. The subjective component looks at whether the alleged victim in fact found it unwelcome.
Employers must also understand that harassment can occur between any combination of individuals—supervisors and subordinates, coworkers, or even third parties such as clients, vendors, or customers. It can also happen between people of any gender. And it is not limited to the physical workplace. Harassment on business trips and at annual meetings, holiday parties, and team-building events creates the same legal exposure for the employer. In fact, it is often in these out-of-office circumstances where lines are blurred and problems arise.
The High Cost of Inaction
Employers who allow harassment to persist without appropriate response expose themselves to serious consequences. An employer will be held strictly liable for harassment by a supervisor that results in a tangible employment action, such as termination, demotion, or a pay reduction. But even without a tangible action, an employer may be liable for hostile work environment harassment. This risk is compounded by the potential for retaliation. Both Title VII and MFEPA prohibit retaliation against employees who report harassment or cooperate with investigations and can give rise to separate and additional claims.
Available remedies include back pay, front pay, emotional distress damages, punitive damages, attorneys’ fees, and reinstatement. These numbers add up quickly and can cost an organization significant sums, sometimes hundreds of thousands of dollars, in damages paid to employees. Even if the employer ultimately wins, the employer will still be on the hook for significant legal fees required to conduct an investigation and defend the company through yearslong administrative proceedings and litigation.
Your Best Defense: Policy, Procedures, and Training
The good news is that employers who invest in prevention can substantially reduce their risk. Employers who can show they exercised reasonable care to prevent and promptly correct harassing behavior may successfully defend against sexual harassment claims. But this requires three important steps:
Beyond formal policies, employers must pay attention to workplace culture. Cohesive teams can be a tremendous asset, but when a team culture normalizes inappropriate joking or physical horseplay, it can make employees reluctant to report legitimate concerns and allow problems to fester. Of course, an amiable atmosphere where employees participate in workplace humor is not a problem. In fact, many employees desire this. But businesses should monitor group dynamics to ensure that camaraderie does not come at the expense of professionalism and respect.
Conclusion
The employers who fare best against harassment claims are those who can demonstrate that they took prevention seriously before a complaint was ever filed. Building the operational foundation, with a well-drafted policy, robust reporting channels, practical training, and a culture of accountability, will enable your business to identify and address problems proactively before they become widespread, costly, and damaging.
The attorneys at Luchansky Law are experienced in drafting robust sexual harassment policies and procedures, frequently conduct in-house trainings to supervisors and employees, and defend against harassment and retaliation claims. I would welcome the opportunity to discuss how we can help protect your business. For more information, call me at Luchansky Law 410.522.1020, or email me at ari@luchanskylaw.com.
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