against age discrimination. During the 2019 session, the Maryland General Assembly passed a number of bills that will impact employment practices in the state. Of particular note was the Workplace Harassment Bill (HB 679 / SB 872), which amended FEPA to vastly expand liability for employers engaging in age-motivated harassment.34 The bill, which was signed by Governor Hogan and will go into effect in October 2019, promises to substantially enhance Maryland’s protections against ageism in the workplace.35
Gregg Greenberg is a Partner, and Mateo Forero is an Associate, at Zipin, Amster & Greenberg, LLC.
1
Alana Officera & Vania de la FuenteNuñez, A Global Campaign to Combat Ageism, Bulletin of the World Health Organization No. 2018;96:299-300, 295 (Mar. 9, 2019), available at https://www. who.int/bulletin/volumes/96/4/17-202424/ en/.
2
contractors, meaning those persons will be protected from age discrimination perpetrated by their principals.36
Expands the definition of “employer” to include any private
Id. at 296.
4
Id. § 631(a).
6
For a summary of the procedural history in this case, see Baltimore Cty., 904 F.3d at 332.
28
Id. § 630(b). Id. § 630.
8
See id. § 633a(a) (making the ADEA applicable to a variety of executive agencies); 2 U.S.C. § 1301 et seq. (extending the ADEA’s provisions to congressional employees).
EEOC v. Baltimore Cty., 202 F. Supp. 3d 499 (D. Md. 2016).
29
9
Id. § 630. Although the Supreme Court held in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), that state employees cannot sue states for monetary damages under the ADEA, the statute may still be enforced against states by the EEOC, and state employees may still sue state officials for declaratory and injunctive relief.
See City of Los Angeles, Dep’t of Water & Power v. Mannhart, 435 U.S. 702 (1978); Arizona Governing Comm. For Tax Deferred Ammunity & Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983); Florida v. Long, 487 U.S. 233 (1988).
30
10
Adds provisions expressly forbidding employers from harass-
11
ing an employee because of their age.38
12
Baltimore Cty., 904 F.3d at 334.
31
Id. at 335.
32
See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727–28 (2d Cir. 1984); Leftwich v. Harris–Stowe State Coll., 702 F.2d 686, 693 (8th Cir.1983); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988).
33
29 U.S.C. § 630(d), (e). Id. § 623(a).
Adds a provision providing that an employer is liable if its negligence led to the harassment of its employees . 39
Id. § 623(d).
13
The ADEA does not outlaw reverse age discrimination – i.e. favoring protected employees over ones younger than 40 years old. Moreover, the Supreme Court has held that the ADEA does not outlaw discrimination against younger employees within the protected class. See Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004).
ment administrative complaints and lawsuits.40
Continuing The Fight Against Age Discrimination The recent developments in judicial and legislative action toward more robust protections against age discrimination are encouraging. But as the WHO has pointed out, there is still much work left in order to achieve true progress.41 Indeed, more than 50 years after Congress passed the ADEA, a new data analysis by the Urban Institute and ProPublica shows that more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire, suffering financial damage that is often irreversible.42 Meanwhile, data shows that since a 2009 Supreme Court ruling made age discrimination claims harder to prove, the EEOC has only pursued such claims in a low percentage of cases—3.1 percent on average.43 These statistics are staggering, but they should also serve as a call to action both here in Maryland as well as across the United States. The march toward equal justice under law continues. GREGG C. GREENBERG is an employment lawyer. Mr. Greenberg represents employees and counsels small businesses in workplace disputes relating to the rate, method, and sufficiency of employee compensation. The focus of Mr. Greenberg’s practice is litigating claims wherein the central questions are often: (1) determinations of status or classification as employee or independent contractor; (2) questions concerning overtime pay exemptions or exceptions under Federal and State wage laws; (3) questions of compliance with the “tip credit” exception to Federal and State minimum wage requirements; and (4) disputes as to owed or unpaid wages or commissions. In Mr. Greenberg’s career as an attorney, Mr. Greenberg has litigated several hundred Federal and State employment law claims including Class Actions and Collective Actions.
2019 Md. Laws, Chapter 222 at 2.
34
14
Extends the limitations periods to file age-motivated harass-
MSBA.ORG | ISSUE 3 2019
Id.
27
7
business with at least one employee whenever there is an allegation of harassment (meaning small employers will be on the hook for any age-motivated harassment).37
108
747 F.3d 267, 270-72 (4th Cir. 2014) (prior appeal in the litigation describing the facts of the case).
26
Id. 29 U.S.C. § 621.
Expands the definition of “employee” to include independent
EEOC v. Baltimore Cty., 904 F.3d 330 (4th Cir. 2018) cert. denied, 587 U.S. _ (June 17, 2019) (No. 18-781).
25
3
5
Significant Changes to FEPA as a result of the Workplace Harassment Bill
Md. Code Ann., State Gov’t § 20-1202(b), and see Code of Montgomery Cty. § 27-19(a) (outlawing age discrimination in the workplace); Code of Howard Cty. § 12.208(II) (same); Code of Prince George’s Cty. § 2-222 (same).
24
Md. Code Ann., State Gov’t § 20-601(c)(1).
Id. at 10.
35
Id. at 4.
36
Id. at 5.
37
Id. at 7.
38
Id.
39
Id. at 8-9.
40
15
On April 3, 2019, the Maryland General Assembly passed amendments to FEPA. Among the amendments is an expansion of the definition of “employer” to include employers with as few as one (1) employee and expansion of the definition of “employee” to include independent contractors. These amendments (and others) will to take effect on October 1, 2019. See infra.
16
Id. § 20-601(d)(1).
17
Id. § 20-606(b).
18
Id. § 20-601(d)(2).
19
Id. § 20-606(c).
20
Id. § 20-606(a).
21
Id. § 20-801.
22
Id. § 20-606(f).
23
Officera & de la Fuente-Nuñez, supra note 2, at 296.
41
Richard Johnson & Peter Gosselin, How Secure Is Employment at Older Ages?, Urban Institute Research Reports 20 (Dec. 28, 2018), available at https://www.urban. org/research/publication/how-secure-employment-older-ages/view/full_report
42
Dana Wilkie, 50 Years After Age Discrimination Became Illegal, It Persists, SHRM. com (January 22, 2019), available at https://www.shrm.org/resourcesandtools/ hr-topics/employee-relations/pages/ age-discrimination-in-the-workplace-.aspx, and see Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (imposing a higher burden of proof on workers who allege age discrimination than on those who allege race, religion or gender-based discrimination).
43
WEB EXTRA
MSBA CLE: MARYLAND AND FEDERAL EMPLOYMENT LAW UPDATE Learn about the most recent developments in state and federal employment law, including employment laws passed by the Maryland General Assembly during the last legislative session. The panel will also address recent developments at the Maryland Civil Rights Commission. VISIT MSBA.ORG/EMPLOYMENT-LAW-UPDATE