Set to be effective October 1, 2018, and titled “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”), the Act voids any provision in an employment contract, policy, or agreement that waives substantive or procedural rights or remedies relating to a sexual harassment claim that accrues in the future, or to a retaliation claim for reporting or asserting a right or remedy based on sexual harassment (unless prohibited by federal law). Any employer who enforces, or attempts to enforce, such a provision will be liable for the employee’s attorney’s fees and costs. The Act will apply to any employment contract, policy, or agreement executed, “implicitly or explicitly extended,” or renewed on or after the effective date; so, it seems to cover policies and agreements implemented prior to October 1, 2018 that continue in place after that date.
Importantly, Section 2 of the Act requires that employers with 50+ employees electronically submit the following information to the Maryland Commission on Civil Rights:
- the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
- 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
- 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.
This information must be submitted on or before July 1, 2020, and again two years later (on or before July 1, 2022). Bullet point two above is notable for two separate reasons:
- The Act states that employers can report whether any personnel action was taken against an employee who was the subject of a settlement under that section.
- Perhaps more importantly, the Commission apparently will retain the response from a specific employer regarding the number of settlements reported in bullet point two for public inspection on request under the Maryland Public Information Act (though we believe identities of victims will be redacted).
The Commission will also publish and make accessible the aggregate number of responses from employers for each item listed in the bullets above. The Commission will ultimately use the information to review a random selection of surveys, create an executive summary of the randomly selected surveys (after redacting any identifying information), and submit an executive summary to the Governor. Section 2 will remain effective for a period of four years and nine months and, at the end of June 30, 2023, will be abrogated.
If and when this Act is signed by the governor, which seems to be expected, Blank Rome’s attorneys will be available to assist Maryland employers with updating or revising their employment contracts, policies, and agreements to comply with these new requirements, and to ensure that larger employers are prepared to respond accurately to the Commission’s survey. However, now is a good time to review your sexual harassment policies and practices—including employment agreements, for example, waiving the right to a jury trial—to evaluate changes that will be required if (and when) the Act becomes effective.