Maryland’s House and Senate have passed competing versions of legislation that would ban employment agreement that limit rights to sue for future claims of sexual harassment.
Senate Bill 1010 — the “Disclosing Sexual Harassment in the Workplace Act of 2018” — would make void any provision in an employment contract, policy, or agreement that waives any substantive or procedural right or remedy to a future claim of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment. SB 1010 also prohibits employers from taking adverse action — defined as failing to hire; discharging; suspending; demoting; discriminating against; or retaliating against — an employee because the employee does not or refuses to enter into an agreement that contains a waiver that is void. An employer who enforces or attempts to enforce a provision that violates the Act would be liable for reasonable attorneys’ fees and costs.
More importantly, the Act would require employers with 50 or more employees to report by each July 1 a “short survey” to the Maryland Commission on Civil Rights, which contains: (1) the number of settlements made by or on behalf of the employer after an employee alleges sexual harassment; (2) the number of times the employer has paid a settlement to resolve a sexual harassment allegations 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 mutual confidentiality provision. The survey would also allow employers to report whether they took personnel action against an employee who was the subject of a settlement.
The Act requires MCCR to post on its website the number of employer responses for the categories referenced above. Furthermore, MCCR would make employer-specific data on the number of settlements involving the same employee available for public inspection.
SB 1010 unanimously passed the Senate and will be considered by the House. State and local governments are not subject to the bill’s reporting requirements.
House Bill 1596 contains similar language regarding employment agreements, contracts, and policies, though the reporting requirements have been stricken from the legislation. HB 1596 unanimously passed the House and will be considered by the Senate.
We will monitor the legislation to see how the legislation progresses, including whether the two chambers can agree on the terms of the legislation.