Employers Face Significant New Challenges Under ... - Venable LLP

LABOR & EMPLOYMENT NEWS E-LERT
OCTOBER 16, 2007
Employers Face Significant New Challenges
Under Maryland’s Amended Anti-discrimination Statute
By Donna M. Glover and Luisa M. Lopez
Effective October 1, 2007, and for the first time in Maryland’s history, Maryland’s legislature granted employees statewide
the right to bring a private cause of action, with the right to ask for jury trials, and receive compensatory and punitive
damages under Maryland’s anti-discrimination law (“Article 49B”). 1
Since the passage of Title VII of the Civil Rights Act of 1964 (“Title VII”), most Maryland employees found themselves in
federal court because employers would typically remove a Title VII case filed in state court to federal court, and because
there was no private right of action for employees under State law. Amended Article 49B gives employees the ability to
file lawsuits under Article 49B, and thus may rewrite the book for employees bringing, and employers defending,
discrimination lawsuits in Maryland. Now, most individuals will likely bring discrimination claims in state court, which may
result in greater challenges for employers defending those claims.
Additionally, Article 49B allows employees to bring discrimination charges and lawsuits because of family status, marital
status, sexual orientation, or discrimination based on genetic information in addition to the protected classes listed in the
federal anti-discrimination law (race, color, national origin, religion, sex, age, disability).
As of October 1, the changes affecting employers under Article 49B are comparatively shown in the chart below. The
relief now available under Article 49B is similar to that found under federal law.
1 Prior to the enactment of amended Article 49B, employees in Baltimore, Howard, Montgomery, and Prince George’s Counties did
have a private cause of action under county anti-discrimination laws.
VALUE ADDED, VALUES DRIVEN. ®

LABOR & EMPLOYMENT NEWS ALERT OCTOBER 16, 2007 2
Article 49B (prior to
October 1, 2007)
Amended Article 49B (effective
October 1, 2007)
State Court Action Not available Available for claims accruing on or
after October 1, 2007. The Maryland
Commission on Human Relations
(MCHR) or the individual may sue in
state court.
Relief Available Back pay (limited to 3
years )
Back pay
Reinstatement
Reinstatement
Private Right of Action and the MCHR’s New Authority
As of October 1, employees have two options for bringing a discrimination claim. Individuals may take the administrative
route, subjecting employers to a quicker, more flexible, and likely less advantageous hearing process. However,
individuals taking the administrative route can still file suit against their employers. Employers may feel pressured by
individuals to settle cases earlier in the process and for more money to avoid a court battle. After 180 days, regardless of
the outcome of the administrative process, individuals may file suit in circuit court. The individual must file suit in the
circuit court of the county where the alleged discriminatory act took place.
The MCHR’s powers include suing on behalf of an individual via the administrative process or suing in circuit court. Both
venues give the MCHR the power to seek expanded damages as described above, and the Office of Administrative
Hearing’s Administrative Law Judges have the power to award those damages. Employees always have the right to opt
out of the administrative process even after that process has begun. Unlike the federal law, employees do not need a
“right-to-sue” letter or any other form of permission from the MCHR to bring suit in Maryland’s circuit courts.
Employers May Face a Bumpy Road in State Court
Compensatory damages, including
emotional distress and front pay, from
$50,000 to $300,000 depending on
employer size;
Punitive damages if the employer
engaged in an unlawful employment
practice with malice (subject to the
statutory cap from $50,000 to
$300,000 depending on employer
size)
Attorneys’ fees, expert witness fees,
and costs
Jury Trial Not Available Available where an individual seeks
compensatory or punitive damages.
Employees will likely file most discrimination suits in state court under amended Article 49B. Maryland’s circuit courts and
its judges are likely less familiar than their federal counterparts with the expansive body of discrimination law that has
developed in federal courts since the passage of Title VII. For Maryland employers, this means that the employer-friendly
stance of the Court of Appeals for the Fourth Circuit may not be what state court judges rely on to develop Maryland’s
body of anti-discrimination law. Plaintiffs’ attorneys will likely seek to bring the best cases forward to Maryland’s court
system to test the legal waters and develop law favorable to their clients. Additionally, employers may find themselves
facing juries in state court because state court judges, for the most part, have not presided over as many discrimination
cases as their counterparts have.
VALUE ADDED, VALUES DRIVEN. ®

LABOR & EMPLOYMENT NEWS ALERT OCTOBER 16, 2007 3
Employers Should Review and Update Their Discrimination Policies
Amended Article 49B is an historic change in Maryland discrimination law. Employers should take this opportunity to
review and update their equal employment opportunity policies to ensure those policies include Maryland’s protected
classifications, train supervisors regarding EEO laws, and educate management about Maryland’s amended Article 49B.
* * *
For more information about the matters discussed in this alert, please contact Donna Glover or Luisa Lopez. Donna Glover can
be reached at 410.244.7694 or dmglover@venable.com. Luisa Lopez can be reached at 202.344.4506 or lmlopez@venable.com.
In addition, you may also contact any member of Venable's Labor and Employment Practice Group listed at
http://www.venable.com/practice.cfmaction=attorneys&practice_id=303.
© 2007 Venable LLP · www.Venable.com · 1.888.VENABLE
This E-lert is published by the Labor and Employment Practice Group of the law firm Venable LLP. It is not intended to
provide legal advice or opinion. Such advice may only be given when related to specific fact situations that Venable has
accepted an engagement as counsel to address.
VALUE ADDED, VALUES DRIVEN. ®