Top 10 Things to Think About from a Defense Perspective With a Private Cause of Action under Article 49B

Darrell VanDeusen
Darrell VanDeusen

Some members of the plaintiff’s bar characterize the creation of a private cause of action under Article 49B as a “leveling of the playing field” after years of fighting for respect in the federal courts.  Not surprisingly, I suspect, I have a different take.  “Employer friendly” decisions from the federal courts often come about because of the quality (or the lack of quality) of the case brought.  The notion that  Maryland’s courts will provide a more plaintiff friendly venue for discrimination claims may ultimately prove wrong if the underlying facts of the complaints filed do not ultimately support the claim.

No doubt, however, defense lawyers who have honed their skills in the federal courts over the past 30 years will need to consider adjusting their approach as the first wave of state law claims are filed.  Here is my “top ten” list of things defense lawyers should think about when a client is served with a complaint filed under Article 49B.

10.   Wishing won’t make it so.  This is not federal court litigation – unless you can get the case specially assigned (good luck with that), you will not have the same judge throughout the case.  Multiple judges handling the various stages of the case generally is not considered a good thing from a defense perspective.  But that is what will happen.

9.   The discovery rules are different.  Unlike Federal Court, a plaintiff’s lawyer does not have to wait for a scheduling order to send out discovery under the Maryland Rules. Your client could wind up getting discovery with the complaint.

8.   The administrative process will have some kinks to iron out.  A charge can be filed with a County (or Baltimore City) HRC, the MCHR, or the EEOC.  If a lawsuit is brought, the law provides that it will automatically terminate the MCHR charge.  It will not do that for the EEOC unless the worksharing agreement is modified, and it will not do it in a County HRC.  Be sure to notify the County HRC of the suit, because it may decide to terminate processing of the charge.

7.   Don’t be too quick to reject a hearing before OAH.  Some defense lawyers will disagree with this one, but remember that although the law permits any party to move a case to Circuit Court, but there may be cases that – from a defense position – are better suited to stay at OAH.  Or maybe there will be an increase in early mediation or other alternative dispute resolution methods.

6.   Do not rely just on Fourth Circuit or even Supreme Court precedent in counseling your clients and defending your case. State Courts are not required to follow federal law at all, and Fourth Circuit cases may not be any more persuasive than any other federal decision.  Because Article 49B has been interpreted in a manner consistent with federal anti-discrimination law, finding the best federal precedent will be important.  But do not be surprised if your opponent is asking the judge to looking to New Jersey or Massachusetts when interpreting the law.  The Maryland Court of Appeals has already evidenced a willingness to look elsewhere, and reject well settled Supreme Court precedent.  In Haas v. Lockheed, 396 Md.  469 (2006), for example, the Court of Appeals rejected the analysis long used to determine when the statute of limitations clock starts to run under Title VII, and adopted the method used in Hawaii.  Really.  So, when advising clients, defense lawyers no longer have the luxury of saying “no problem, the Fourth Circuit has said that’s ok” and leaving it at that.

5.   Speaking of Limitations.  Article 49B provides for a two year statute of limitations from the date of the alleged discrimination. But if the statute of limitations does run out, and the charge was cross-filed, there still may be a federal claim available to the complainant if the EEOC has not yet issued a notice of Right to Sue.

4.   Burdens of Proof may be different.  Particularly in disability cases.  See B&O RR v. Bowen, 60 Md. App. 299 (1984), where the Court of Special Appeals held that in a handicap discrimination case, the burden of proof actually shifts to the employer, something that does not happen in an ADA case.

3.   Is there a federal question in there somewhere?  Removal may be an option if there is a hint of a federal question – FMLA, FLSA, Civil Rights Act of 1866?

2.   There will be lack of  trial court decisions to look to and rely upon.  There is no “F. Supp.” in state court.  Decisions may or may not be circulated among Circuit Court Judges.  Even if they are, it is almost a certainty that they will not hold the same weight that Federal District Court Judges have traditionally ascribed to other Federal District Court decisions.  We are probably four to five years away from any real body case law coming out of the Court of Special Appeals and the Court of Appeals.

1.   Wishing it won’t make it so, part II.  Like it or not, this will not be the motions practice to which those of us who practice regularly in federal court have become accustom. At least not at first.  A lot of it will depend, of course, on the cases that are brought. But be prepared for judges asking you for jury instructions more often.

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