Under a 2018 law, Maryland employers with 50 or more employees are required to submit a report by July 1, 2022 to the Maryland Commission on Civil Rights regarding any sexual harassment settlements during the past two years.
In the wake of the #MeToo movement, the Maryland General Assembly passed the “Disclosing Sexual Harassment in the Workplace Act of 2018” that, in part, requires larger employers to submit two reports on sexual harassment settlements – the first of which was supposed to have occurred in 2020, and the second by July 1, 2022 (covering the period from July 1, 2020 to July1, 2022). Specifically, employers must report:
- 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 (notably, each employer’s response to this item – and this item only – is available for public inspection upon request to the MCCR); 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 reporting is done through a Maryland Commission on Civil Rights survey, which may be accessed here. The survey consists of five webpages, and we are providing a pdf of those webpages for employers to see what information is being requested.
According to the survey, the 50-employee count includes employees across all the employer’s locations, and not just those employees in Maryland. The survey does not indicate when the count should take place; we suggest it is the count as of the date of the employer’s submission.
We also note that the survey (and the law) do not specify if the settlements to be reported are only those executed with Maryland employees or across all locations. The MCCR would probably contend that it should be all settlements, not just those in Maryland. We believe there is a reasonable argument, however, that the MCCR and General Assembly only have jurisdiction over Maryland matters, and therefore only Maryland settlements need to be reported. (Of course, this is moot if there were no sexual harassment settlements at all.)
The law requires the MCCR to post on its website the aggregate number of responses from employers for each of the above items. However, in our search of the MCCR’s website, the only data we found was the total number of responses to the July 1, 2020 Survey (for which there were 570) and the total number of responses to date (as of June 16, 2022) for the July 1, 2022 survey (145); presumably, each response covered all three items.
What is more significant, however, is that clearly most covered Maryland employers did not submit the survey in 2020. According to the County Business Patterns data provided by the U.S. Census, there were 8649 Maryland businesses with >50 employees in 2020. This number likely does not include out-of-state businesses with employees in Maryland that would also be covered by the law. We further note that there is no enforcement authority for the MCCR in the statute, nor is there any apparent penalty for failing to complete the survey.
Given the limited response to the 2020 survey, and the likely similar response to the 2022 survey, it is questionable what utility the collected survey responses have. Fortunately, the reporting requirement provision in the law sunsets following the current survey.