MIDDLE RANGE ISSUE

SUMMARY: Currently, Maryland employees asserting claims and employers defending discrimination charges face a collection of sometimes contradictory procedural avenues and substantive remedies depending upon the jurisdiction where the complaint is filed and the size of the employer's workforce.

During the past decade the General Assembly has considered a number of bills designed to grant the Maryland Human Relations Commission additional remedies in employment discrimination cases, but none of them has been enacted into law. Until the 2000 session the MSBA had either taken no position, monitored or referred the legislation to the Section of Administrative Law or the Section of Labor and Employment Law. Midway through the 2000 session, the MSBA adopted a position of "Support with Amendments" on House Bill 208, and formed a three-person subcommittee of the Committee on Laws to establish underlying principles that would provide a basis for amendments to the legislation. The proposed amendments would have required radical surgery upon House Bill 208 in order to accomplish the reforms recommended by the MSBA.

As originally proposed, House Bill 208 aimed at clarifying confusion in present law by establishing the responsibility and authority of administrative law judges and the courts in employment discrimination cases where there was intentional discrimination and illegal harassment of workers. Under the terms of the legislation any employer in the State, rather than only those with 15 or more employees which is current law, would be subject to the Maryland human relations statute. In addition, where an employer was found to have been engaged in an intentional and unlawful employment practice, Administrative Law Judges (ALJs) would be authorized to require payment of lost wages and assess compensatory damages for lost pay in the future, emotional pain, suffering , inconvenience, mental anguish, loss of enjoyment of life and other noneconomic damages. ALJs also would be empowered to award attorney and witness fees if employers were found to have engaged in unlawful employment practices. Complainants would have the option of having their cases decided in a civil action, and in some circumstances the court would be authorized to assess punitive damages against private (non-governmental) employers, issue injunctions and restraining orders, and take other actions deemed appropriate.

Because MSBA involvement on House Bill 208 was approved after the public hearing on the legislation had been held, the Association did not participate in the public hearings on the bill. The MSBA, however, proposed written testimony asserting that it would support an anti-discrimination bill if it included the following elements:

1.  A private right of action in the state courts;
2.  The right to trial by jury;
3.  Meaningful compensatory damages;
4.  The right to private counsel;
5.  The right of a prevailing party to recover attorney's fees,
     expenses and costs; and,
6.  Elimination of provisions in the bill requiring administrative
      hearings at the Office of Administrative Hearings.

After the MSBA proposed this position, the Chairman of the House Commerce and Governmental Matters Committee accepted the Association's offer to provide assistance in drafting amendments to the legislation. That panel, however, decided to reject the proposal in late March, thereby ending any chance for further involvement.

In 2001 the MSBA entered the employment discrimination issue on several fronts. In addition to supporting with amendments the 2001 version of House Bill 208 from the 2000 session, the MSBA endorsed legislation to ban employment discrimination on the basis of genetic information, and joined a broad coalition in support of a bill to forbid housing and employment bias in cases concerning an individual’s sexual orientation. The General Assembly passed the genetic information and sexual orientation measures, but the bill concerning the Human Relations Commission failed in the Senate Judicial Proceedings Committee by a close margin. The sexual orientation statute is expected to be on the 2002 ballot as a referendum item.

MSBA 2002 POSITION:  Support legislation that would contain the following elements in cases involving anti-discrimination in employment practices:
1.  A private right of action in state courts;
2.  The right to trial by jury;
3.  Meaningful compensatory damages;
4.  The right to private counsel; and
5.  The right of a prevailing party to recover attorney's fees, expenses and costs.

SAMPLE LEGISLATION:
House Bill 208, General Assembly of Maryland, 2000
Senate Bill 2, General Assembly of Maryland, 2001
Senate Bill 104, General Assembly of Maryland, 2001
Senate Bill 205, General Assembly of Maryland, 2001

Return to 2002 Final State Legislative Program Table of Contents

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