SB 450 eliminates the ‘severe or pervasive’ standard for harassment claims and creates a new standard for harassment claims in the workplace. The prior ‘severe or pervasive’ standard was traditionally a high bar for potential plaintiffs to meet, requiring that the conduct be so offensive and/or so consistent that the workplace was unbearable. The factors considered by Maryland Courts were “(1) the frequency of the discriminatory conduct, (2) its severity, (3) whether it is physically threatening or humiliating… and (4) whether it unreasonably interferes with an employee’s work performance.”
However, the new standard set by SB 450 creates a ‘totality of the circumstances’ evaluation where conduct that “unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile” can satisfy the test.
The second bill, SB 451, allows for tolling of the statute of limitations for Maryland claims while pending at the Maryland Commission on Human Rights or in the County human rights offices. The typical statute of limitations to file a discrimination claim with the EEOC is either 180 days or 300 days depending on the jurisdiction and with which agency – federal or local/state – the claim is filed with. (For federal employees the time to file can be as short as 45 days). However, the statute of limitations to file a claim in court after seeking an administrative remedy through the EEOC or other state or local agency is still three years from the date the discrimination or harassment occurred. This is significant because the EEOC process can take over a year – sometimes more – and without the tolling of the statute of limitations to file a claim in court, the EEOC process can eat up that time to file. Sometimes, in order to preserve the right to file a lawsuit, potential plaintiffs must pull their claim from the administrative process and file in court without having a final decision from the agency first. SB 451 would change that, tolling the time to file a claim in court based on the initial timely filing with the EEOC or other local or state human rights agency. This would allow the completion of the EEOC/agency investigation and mediation process prior to the filing of a lawsuit in court.
D.C. has already adopted such a provision where “the timely filing of a complaint with the office [of Human Rights] shall toll the running of the statute of limitations while the complaint is pending.” D.C. Code § 2-1403.16(a). The Maryland provision should work the same way, incentivizing potential plaintiffs to use the administrative process – a process which is meant to be more navigable for pro se claimants but which, without the tolling provision in SB 451, potentially punishes the uninitiated or pro se claimant who relies on it, without realizing that their opportunity to file a claim in court expires as that administrative process proceeds. SB 451 will end this confusing predicament.