Employment Law Update

On April 15, 2024, the Anne Arundel County Council passed a comprehensive anti-discrimination bill that, among other things, covers private employers and public accommodations.  The bill is an amendment to an existing law prohibiting housing discrimination.
 
The bill provides a mechanism for filing and investigating complaints of discrimination. It also expands the authority of the Anne Arundel County Human Rights Commission (AAHRC), the scope of prohibited activities under the discrimination law, and the categories of protected characteristics. The bill will become effective 45 days after it becomes law. 

Expanded Scope of the AAHRC

The AAHRC will be permitted to hold hearings, issue and enforce subpoenas, conduct mediation, and impose civil penalties.  These enforcement activities cover complaints filed alleging discrimination in housing, employment and by private providers of public accommodations. Additionally, the AAHRC may hold hearings regarding alleged discrimination that is reported to or discovered by the AAHRC in the absence of a complaint. 

The bill permits the AAHRC to apply to the Circuit Court in any County for an Order requiring attendance and testimony of witnesses and the production of books, papers, records and documents. The Court may order the attendance and testimony of a witness or the production of books, papers, records, electronically stored information, documents and tangible property after notice to the person subpoenaed and finding that the subpoenaed information is relevant or necessary for proceedings of the Commission. 

Expanded Definition of “Discrimination”

The bill expands the definitions of “discrimination” to include associational discrimination and retaliation. Specifically, the definition of “discrimination” will now not only apply to membership in a protected class, but also “association” with a member of a protected class.  The anti-retaliation provision prohibits adversely affecting someone in employment, housing and public accommodations because that person “lawfully opposed any discriminatory practice under this title or filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this Title….”

Prohibited activity also includes failing or refusing to make a reasonable accommodation for the known disability of an otherwise qualified employee or applicant and harassment of an employee for membership in a protected class. 

Discriminating against someone for refusing to submit to a genetic test or make available the results of a genetic test also is prohibited. 

Protected Class Also Includes “Perceived” Membership

Significantly, “protected class” includes individuals protected from discrimination based upon actual or perceived age, ancestry, citizenship, color, creed, disability, familial status, gender identity or expression, marital status, national origin, occupation, race, religion (subject to the exceptions in State law), sex, sexual orientation, or source of income. Under federal and Maryland law, “perceived” membership in a protected class only covers disability discrimination.  The bill defines “Gender Identity or Expression” to mean “the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person’s perceived gender identity.”  “Perceived Gender Identity” means the “gender with which a person is perceived to identify based on that person’s appearance, behavior, expression, other gender related characteristics, or sex assigned to the person at birth or identified in documents."

Procedure for Processing a Charge of Discrimination

The bill provides that a complaint must be filed by the later of 300 days after the alleged violation or six months after the complainant discovers the alleged violation. Unlike federal or state law, there is no deadline for providing notice to a respondent of the complaint, but the respondent must file an answer with the AAHRC no later than thirty (30) days after service of the complaint.  Moreover, unlike in the federal or state context, the respondent must file a copy of the answer on the complainant. 

The Human Relations Officer, with the assistance of the Office of Equity and Human Rights, must review the complaint within fourteen (14) days to determine whether the facts alleged are sufficient to support a claim of discrimination. If the Human Relations Officer determines that the allegations are insufficient, the complaint will be dismissed and the reason for dismissal will be explained in writing and served on the parties. The complainant may file a request for reconsideration by the AAHRC.

Complaints not dismissed will be investigated by a Human Relations Officer who will refer sustained complaints to the AAHRC, together with any answer filed by the respondent, within 90 days of the filing of the complaint. The 90-day deadline for referral may be extended for an additional 60 days with prior notice to the AAHRC. After referral, the AAHRC will schedule and conduct a hearing. 
Within 60 days of a hearing, the AAHRC will issue findings of fact and conclusions of law and either dismiss the case, in the absence of a finding of discrimination or, upon finding discrimination, order appropriate relief.

Available Remedies

Upon finding discrimination, the AAHRC may issue a cease and desist order and, for violation of the public accommodation or employment titles, access a civil fine of up to $5,000 per offense.

Duplicative Federal or State Complaints Terminate County Charge 

Until this bill passed, individuals of private employers in Anne Arundel County were limited to state and federal remedies. The bill states that it is not intended to be duplicative or cumulative of federal and state processes, so a County complaint will terminate if a similar or identical complaint is filed under state or federal law.

Conclusion

Given the limited remedies under the new Anne Arundel bill, as compared to federal and Maryland law, it is less likely that aggrieved employees will avail themselves of its provisions.  Nevertheless, this provides another avenue of relief for individuals in Anne Arundel County who believe that they have experienced employment discrimination. 

If you have further questions regarding this topic, please contact: 

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

Melissa Menkel McGuire
410-576-4201 • mmcguire@gfrlaw.com