May 14th, 2021
Montgomery County Enacts New Standard in Harassment Cases
Author: Darla J. McClure
The U.S. Equal Employment Opportunity Commission (EEOC) had previously issued guidelines, which applied to all employers, stating that employers “should provide [harassment prevention] training to its employees to ensure they understand their rights and responsibilities.” Montgomery County employers, now more than ever, should heed this advice and educate their supervisors and managers as to what constitutes harassment as “harassment” in Montgomery County is now defined more broadly than under state or Federal law.
Previously, in order for workplace harassment to be actionable, it needed to be “severe or pervasive.” Generally, this meant that isolated incidents or casual comments were not enough to sustain a hostile work environment claim. Now, however, Montgomery County has adopted the “reasonable victim” standard in place of the “severe or pervasive” standard. Under the new law, workplace harassment is actionable if “a reasonable person would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”
Specifically, the newly expanded Montgomery County discrimination law broadly defines “harassment” to include verbal, written or physical conduct, even if the conduct does not meet the “severe or pervasive” standard applicable under prior County law, as long as the conduct is:
- Based on a protected characteristic;
- One of the following applies: (1) Submission to the conduct is made a term or condition of employment, (2) Submission to or rejection of the conduct is the basis for employment decisions, or (3) the conduct unreasonably interferes with the individual’s work performance or creates a work environment that is perceived by the individual to be abusive or hostile; and
- A reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.
This new standard is significant because it lowers the bar for employees who want to bring a hostile work environment claim. Montgomery County employers covered by this new law should review their harassment policies and consider harassment training to ensure compliance with the new standard.