Articles

Standard Lessened for Actionable Claims of Harassment in Montgomery County

For years, employers have understood that harassment, including sexual harassment, must be “severe or pervasive” to be actionable. However, that recognized standard has now changed in Montgomery County, Maryland. As a chartered county, Montgomery County has the discretion to determine what actionable discrimination is under County law. As such, effective January 15, 2021, the County Council for Montgomery County, Maryland passed Bill 14-20 which updated the County’s Human Rights law to define harassment, including sexual harassment.  However, the most significant change is that the updated law departs from the age-old “severe and pervasive” standard for discriminatory harassment to a lesser standard that merely requires that “a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.” This change affords greater protection to County employees.

As noted above, the updated law has a new definition of harassment, which includes “verbal, written or physical conduct, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims. . . .”  Likewise, the added definition of sexual harassment includes “unwelcome sexual advances, requests for sexual favors, or other verbal, written, or physical conduct of a sexual nature, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims . . . .” 

So what do these changes mean for employers doing business in Montgomery County, Maryland?  The new changes do not affect the definition of employers covered by the law, or the existing damages or penalties allowable in employment discrimination cases. However, employers must change their mindset with regard to harassment claims that historically were more difficult for a complainant to bring unless the complainant had endured a series of extreme and persistent incidents of harassment. This means employers should review and revise their current harassment policies to address this lesser standard to avoid employee complaints being dismissed or ignored under the former “severe or pervasive” standard. Further, employers should be proactive in training supervisors on what constitutes harassment, including sexual harassment, under the updated County law.

Please contact Tiffany M. Releford, Esq. for assistance with reviewing and revising your current policies on harassment and/or for supervisor training on the updated Human Rights law.

---

The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.