Last fall, Maryland enacted the “Disclosing Sexual Harassment in the Workplace Act,” joining a number of states—including New York, Washington, and California—that have passed legislation aimed at fostering transparency and preventing sexual harassment in response to the #MeToo movement. In addition to preventing employers from requiring employees to arbitrate claims of sexual harassment, the Maryland statute also requires employers in Maryland with 50 or more employees (across all locations, not just in Maryland) to electronically submit to the Maryland Commission on Civil Rights (the “Commission”) answers to the below questions by July 1, 2020 and July 1, 2022:
- The number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee;
- The number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment (and whether the employer took personnel action against the employee who was subject of a settlement); and
- The number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.
The survey for the July 1, 2020 reporting period is now live. Employers can electronically submit their responses by visiting the commission on Civil Rights website. Any responses submitted now satisfy the reporting period through July 1, 2020. There is no reason for employers to delay providing the information once it is collected. Reporting based on current data gives the employer more certainty, and has the added advantage of identifying any potential problems earlier so the employer can take steps to address systematic issues and, in turn, reduce the number claims for the next reporting period.
The Commission will then publish on its website the aggregate number of responses from employers for each data point. Importantly, employers should not expect their reports to remain anonymous or confidential – the Commission will retain and make available for public inspection (on request) the response from a specific employer regarding the number of settlements in question. The Commission will also create an executive summary from a random selection of surveys which it will submit to the Governor, the Senate Finance Committee and the House Economic Matters Committee on December 15, 2020 and December 15, 2022, respectively.
Employers in Maryland should begin collecting data if they have not already, and reach out to employment counsel with any questions regarding compliance.