The new Maryland employer survey for reporting sexual harassment settlements is now open on the website of the Maryland Commission on Civil Rights (MCCR).
Context
Maryland was one of the 32 state legislatures to consider #MeToo legislation in the 2017-2018 legislative cycle. Across the country, approaches to addressing workplace harassment include restricting confidentiality agreements, restricting waivers of future claims of sexual misconduct or retaliation, expanding non-retaliation provisions, expanding grounds for attorneys’ fees and other measures which are viewed as encouraging employees to report to workplace issues, promoting fair resolution of reports, and preventing repeat harassers from evading accountability by being cloaked in secrecy.
Maryland’s “Disclosing Sexual Harassment in the Workplace Act of 2018” (HB 1596) addresses waivers of future claims of sexual harassment or retaliation and requires employers with 50 or more employers to report certain settlements to the Maryland Commission on Civil Rights. The law took effect October 1, 2018.
Maryland’s Reporting Requirement
Under the reporting provision, all employers with 50 or more employees must file two electronic reports in the next 5 years. Employers will provide the employer’s contact information and answers to questions drawn directly from the Maryland legislation. Employers will enter:
(1) the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
(2) the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and
(3) the number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.
(4) If an answer is provided to Question 2, the employer will have to answer “Whether the employer took personnel action against an employee who was the subject of a settlement.”
Employer reporting will sunset on June 30, 2023. MCCR is providing limited guidance about the reporting requirement.
MCCR is charged with publishing the aggregate number of paid sexual harassment settlements reported by employers and making an individual employer response of its number of paid sexual harassment settlements available for public inspection upon request. MCCR will further provide the Governor, Senate and House with an executive summary of randomly selected surveys, redacted of any identifying information for specific employers.
Key takeaways for Maryland independent schools and other employers
Educate your leadership, supervisors and employees. Annual sexual harassment training is recommended and should be regularly updated to reflect changing norms and laws. Ensure that those who are responsible for investigating complaints and negotiating or approving settlements are aware of both federal and state laws regarding sexual harassment.
Ascertain whether your school is a covered employer (50 employees or more). MCCR generally follows the EEOC guidelines on counting employees: count all full-time employees at any location of the company and count part-time employees who have worked at least 20 weeks for the employer this calendar year or last. Do not count independent contractors.
Review document retention and collect reportable data on settlements. Designate who is responsible for reporting (for example Director of HR, Business Officer or Head of School) and ensure that relevant data reaches that person.
Submit data using the electronic survey. The survey asks for:
- The employer’s name, address, website and general/centralized email address for the general public to use as a means of contact, if the organization has one.
- Contact information for the survey respondent or primary contact, which may be an attorney.
- The four questions listed above. #1-3 are numerical answers. #4 is a yes/no answer. No further detail is required or permitted.
Resolving sexual harassment complaints in the workplace presents challenges which are increasingly complex as American societal expectations and laws respond to the #MeToo movement.
Contact the attorneys at McMillan Metro Faerber at (301) 251-1180 for more information.
This article is written for general informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
