Under New Maryland Law, ‘Disclosure’ Is Not Just a Movie About Sexual Harassment in the Workplace

Section 1 of the Act provides that except as prohibited by federal law, a provision in an employment contract, policy, or agreement that waives any substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment is null and void as being against the public policy of the State.

The Act further provides that an employer cannot take adverse action against an employee because the employee refuses to enter into an agreement that contains such a waiver. “Adverse action” includes discharge, suspension, demotion, discrimination in terms, conditions and privileges of employment, and any other retaliatory action that results in a change in the terms and conditions of employment that would dissuade a reasonable employee from making a complaint, bringing an action, or testifying in an action regarding a violation of this section of the law. An employer who enforces or attempts to enforce a provision that violates the above waiver prohibition will be liable for the employee’s reasonable attorneys’ fees and costs.

Section 2 of the Act requires employers with 50 or more employees to electronically submit a “short survey” to the Maryland Commission on Civil Rights on or before July 1, 2020 and on or before July 1, 2022 that reports on (i) the number of settlements made by the employer after an allegation of sexual harassment by an employee; (ii) 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 (iii) 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 Commission will include in the survey a space for an employer to report whether the employer took personnel action against an employee who was the subject of a reported settlement.

The Commission will publish and make available to the public the aggregate number of responses from employers on each item of the survey and will retain for public inspection on request the response from a specific employer regarding the number of settlements reported in the survey.

Furthermore, on or before December 15, 2020 and on or before December 15, 2022, the Commission will review a random selection of surveys submitted and provide the Governor with an executive summary.

Section 2, the survey section of the Act, will remain in effect for four years and nine months, and at the end of June 30, 2023, with no further action required by the General Assembly, will be abrogated and of no further force or effect.

Maryland employers should make plans to comply with the law by reviewing policies, contracts and agreements and training employees and managers.