Article 49B of the Maryland Code prohibits employment discrimination on the basis of race, color, religion,sex, national oigin, age,disability,marital status,sexual orientation and/or genetic status. Until now, the law has permitted employees in only four Maryland counties(Howard, Montgomery,Prince George’s and Baltimore) to bring a judicial action for violations.

Employees alleging such violations in Baltimore City and the remaining Maryland counties have been limited to pursuing their claims administratively before the Maryland Commission on Human Relations(MCHR). Under that procedure, the MCHR conducts an investigation and if it finds that there is “probable cause” to believe that discrimination has occurred,and if attempts to resolve the matter through conciliation fail, the MCHR files a Complaint and an administrative hearing is conducted before an administrative law judge. If the employer is found to have engaged in employment discrimination,an employee’s remedy is limited to equitable relief, such as reinstatement or hiring,and back pay for lost wages for a maximum of 36 months, reduced by any interim earnings of the employee and amounts which could have been earned by the employee with reasonable diligence.

Other than marital status, sexual orientation and genetic status discrimination,federal laws (such as Title VII,the Americans with Disabilities Act and the Age Discrimination in Employment Act) prohibit the same types of employment discrimination as Article 49B. For many years, the relief available to employees has been substantially greater under federal law than Maryland law. Federal law, in addition to allowing for the recovery of back pay and possibly front pay, permits employees to recover compensatory damages (pain and suffering,emotional distress, etc.)and/or punitive damages in an amount of up to anywhere from $50,000 to $300,000 depending on the size of the employer’s work force. Moreover, federal law gives employees the right to have a jury of their peers ratherthan judges)decide whether they have been subjected to discrimination, as well as the amount of back pay,compensatory damages and/or punitive damages to be awarded. Awards of attorneys’ fees and costs are also available to an employee who prevails in a federal lawsuit. Because of the potential for significant dollar recoveries under federal law, employees and their attorneys have until now been inclined to pursue their claims by filing charges with the Equal Employment Opportunity Commission (EEOC) and proceeding under federal law rather than the Maryland law.

Although Maryland employers have faced greater monetary exposure under the federal discrimination laws, this exposure has been limited to a great extent by decisions of Maryland’s federal districtcourt, which has not been receptive to employment discrimination claims. Maryland federal district court judges,unlike those in many other states, have interpreted the employment discrimination laws conservatively and have not been hesitant to grant summary judgments in favor of employers where other courts would have held otherwise. Their decisions in favor of employers, as a rule, have been affirmed by the United States Court of Appeals for the Fourth Circuit, which is viewed by many as the most conservative appellate court in the country.

The reluctance of plaintiffs’ attorneys to bring discrimination suits in Maryland will most likely change as a result of amendments to the Maryland discrimination law which go into effect on October 1,2007. As of that date, employees in Baltimore City and all Maryland counties will be allowed to bring state court actions in the Maryland courts after at least 180 days have passed since the filing of a discrimination charge with the MHRC, the EEOC or another discrimination agency. Further, as of October 1, 2007, the remedies available under the Maryland statute have been expanded to parallel those existing under federal law. Thus, in addition to being subject to an award of back pay,employers may also be liable for compensatory damages and punitive damages in a maximum amount ranging from $50,000 to $300,000 depending on the size of the employer’s work force. An employee who prevails in state court litigation may be awarded reasonable attorneys’ fees, expert witness fees and costs. In addition, and most importantly, the employee is entitled to have his case tried by a jury.

It should also be mentioned that these expanded remedies are available even if the discrimination charge is processed administratively after a finding of probable cause. Moreover, the MHRC itself may elect to have a case tried by a jury in state court rather than by an administrative law judge.

Based on these expanded remedies and the availability of a jury trial, it is reasonable to predict that employees and their attorneys will be filing more discrimination charges than they have in the past and that such charges will be filed with the MHRC,rather than the EEOC.

Pursuing actions in the Maryland state courts will be appealing to employees and their attorneys because…

1. Maryland judges, in general, do not have a reputation for being as conservative as federal court judges
2. Maryland trial court judges are more reluctant than federal judges to grant summary judgments, and therefore cases will proceed to trial
3. Maryland juries tend to be more generous than federal court juries

In short, employers can anticipate an increase in legal expenses to defend against more employment discrimination cases than in the past, not to mention greater financial liability if discrimination is proven.

Hopefully, as time goes on, the Maryland appellate courts will develop a body of law which parallels that of the Maryland federal district court and the United States Court of Appeals for the Fourth Circuit. If so, the number of employment discrimination cases in Maryland should decline, and only legitimate claims of employment discrimination will be pursued at the MHRC and in state courts. Until then, “the best defense is a good offense.”

Employers and their counsel should regularly review company policies and procedures to make sure they are not discriminatory. Complaint procedures should be instituted and monitored by employers to make sure that any employee concerns of discrimination or harassment are communicated to the proper people for investigation and discipline when necessary. Claims of unfairness or discrimination made by employees should be promptly investigated and addressed before an employee resorts to filing a discrimination charge with the MHRC. Upper level managers or their representatives should regularly meet with supervisors and employees to explain discrimination laws and discuss what types of conduct are not acceptable in the workplace. Performance, conduct and other problems with employees should be documented,and any discipline which is imposed should be consistently applied among all employees. Although not every claim of employment discrimination can be avoided, these proactive steps by an employer can minimize the possibility of such charges, notwithstanding the expanded remedies which soon will be provided under the Maryland discrimination law.