Effective October 1, 2007, and for the first time in Maryland’s history, Maryland’s legislature granted employees statewide the right to bring a private cause of action, with the right to ask for jury trials, and receive compensatory and punitive damages under Maryland’s anti-discrimination law (“Article 49B”).1

Since the passage of Title VII of the Civil Rights Act of 1964 (“Title VII”), most Maryland employees found themselves in federal court because employers would typically remove a Title VII case filed in state court to federal court, and because there was no private right of action for employees under State law. Amended Article 49B gives employees the ability to file lawsuits under Article 49B, and thus may rewrite the book for employees bringing, and employers defending, discrimination lawsuits in Maryland. Now, most individuals will likely bring discrimination claims in state court, which may result in greater challenges for employers defending those claims.

Additionally, Article 49B allows employees to bring discrimination charges and lawsuits because of family status, marital status, sexual orientation, or discrimination based on genetic information in addition to the protected classes listed in the federal anti-discrimination law (race, color, national origin, religion, sex, age, disability).

As of October 1, the changes affecting employers under Article 49B are comparatively shown in the chart below. The relief now available under Article 49B is similar to that found under federal law.

Private Right of Action and the MCHR’s New Authority

As of October 1, employees have two options for bringing a discrimination claim. Individuals may take the administrative route, subjecting employers to a quicker, more flexible, and likely less advantageous hearing process. However, individuals taking the administrative route can still file suit against their employers. Employers may feel pressured by individuals to settle cases earlier in the process and for more money to avoid a court battle. After 180 days, regardless of the outcome of the administrative process, individuals may file suit in circuit court. The individual must file suit in the circuit court of the county where the alleged discriminatory act took place.

The MCHR’s powers include suing on behalf of an individual via the administrative process or suing in circuit court. Both venues give the MCHR the power to seek expanded damages as described above, and the Office of Administrative Hearing’s Administrative Law Judges have the power to award those damages. Employees always have the right to opt out of the administrative process even after that process has begun. Unlike the federal law, employees do not need a “right-to-sue” letter or any other form of permission from the MCHR to bring suit in Maryland’s circuit courts.

Employers May Face a Bumpy Road in State Court

Employees will likely file most discrimination suits in state court under amended Article 49B. Maryland’s circuit courts and its judges are likely less familiar than their federal counterparts with the expansive body of discrimination law that has developed in federal courts since the passage of Title VII. For Maryland employers, this means that the employer-friendly stance of the Court of Appeals for the Fourth Circuit may not be what state court judges rely on to develop Maryland’s body of anti-discrimination law. Plaintiffs’ attorneys will likely seek to bring the best cases forward to Maryland’s court system to test the legal waters and develop law favorable to their clients. Additionally, employers may find themselves facing juries in state court because state court judges, for the most part, have not presided over as many discrimination cases as their counterparts have.

Employers Should Review and Update Their Discrimination Policies

Amended Article 49B is an historic change in Maryland discrimination law. Employers should take this opportunity to review and update their equal employment opportunity policies to ensure those policies include Maryland’s protected classifications, train supervisors regarding EEO laws, and educate management about Maryland’s amended Article 49B.