This means that employees can be fired for no reason or any reason, so long as the true reason is not one of the few that are expressly made illegal. This concept comes as a shock to many people, who learn of it for the first time after many years of employment, having assumed that they could keep their jobs as long as they perform well.

As a matter of sound business practice, employers normally prefer to retain enthusiastic, well-trained workers, given the cost of hiring and training, and the negative effect on morale when workers are fired without obvious reasons.  Although most employers are under no obligation to reward loyalty or even exemplary services, they must 

Generally, civil service government employees have statutory or union protections, or both, that require good cause for discharge and discipline. Political appointments, some temporary employees, and quasi-government agencies are examples of exceptions to this rule. 

Some terminations are illegal

An employer may not fire an employee because of his or her race, sex, age, religion, color, national origin, or a disability that does not prevent the employee from doing the job with or without reasonable accommodation. In addition, some local jurisdictions also prohibit discrimination on the basis of sexual orientation. 

Depending on the size of the employer, other forms of discrimination for the forbidden reasons may also be illegal, such as failure to hire, failure to promote, or demotion.

An employee may not be fired in retaliation for exercising rights under the laws described above, or for assisting another employee who is exercising his or her rights.

An employer may not fire an employee on account of the employee's filing of a worker's compensation claim, a bankruptcy petition, or a judgment creditor filing one wage garnishment. 

Large-scale reductions in force may require an employer to give 60 days' notice of the downsizing or plant closing.

Maryland law permits an employee to recover if he or she was induced by fraud or negligent misrepresentations to leave a secure job for a promised position that turned out to be different from the job promised.  For example, if an employee changes jobs and then learns that the promised job does not exist, or was otherwise seriously misrepresented, he or she may sue for the losses caused by leaving the former job.  This rule was announced in a case in which an employee negotiated for several months over the terms of a high-level position; only after he accepted the position and left his former company, however, was he informed that the new employer insisted upon onerous terms in the employment contract, including a covenant not to compete if he left the company. (See below.)

New Sexual Harassment Guidelines are Emerging

The US Court of Appeals for the Fourth Circuit, widely viewed as the most conservative of the Circuit Courts of Appeal, decided in favor of a plaintiff alleging sexual harassment. In Smith v. First Union Bank, The employer had convinced the lower court that because the victim's supervisor had not made sexual advances to her, she had no claim for sexual harassment. On appeal, decided on January 19, 2000, the appeals court reinstated the plaintiff's claim and sent the case back for trial.

The appeals court decided that the lower court had taken too narrow a view of what may constitute sexual harassment. While unwanted sexual advances may be involved, the core of a sexual harassment case under Title VII is the creation of a hostile work environment based on a worker's gender. In Smith, the supervisor's "barrage of threats and gender-based insults" was enough to state a claim of sex discrimination.

The Supreme Court has interpreted sexual harassment claims several times in the past two years. A new set of guidelines is developing for the adequacy of an employer's response to sexual harassment or complaints of sexual harassment. (These rules also apply to harassment based on other types of discrimination forbidden by Title VII of the Civil Rights Act, such as race, national origin and religion). In short, an employer is liable for a supervisor's sexual harassment if (1) the supervisor took tangible job action, such as firing an employee, as a result of the sexual harassment; or (2) the employer knew about or circumstances indicated that it should have known about the harassment, and nothing was done. And in the latter case, if the employer had an effective and well-publicized anti-harassment policy in effect, however, that might have ended the harassment, and the plaintiff unreasonably failed to take advantage of it and alert the employer of the situation, then the employer may limit or eliminate its exposure to damages.

The Supreme Court also has upheld the idea that sexual harassment need not be one sex victimizing the other; so long as the illegal activity occurs because of the victim's sex, the gender of the perpetrator is irrelevant. In Oncale v. Sundowners Offshore Services, Inc., for example, a male worker was the target of offensive behavior, including threats of rape, by his male supervisor. The Supreme Court reinstated the case, which had been dismissed below, calling for the lower courts to apply common sense, and allow cases to go to trial only where there was pervasive offensive conduct that on an objective standard was severely abusive.

This year, the Supreme Court upheld the idea that sexual harassment leading to constructive discharge may be a viable lawsuit.   Constructive discharge occurs when an employer creates an intolerable atmosphere with the intent that an employee will quit his or her job.

Misrepresentations in job offers

Despite the employment at will doctrine in Maryland, the Court of Special Appeals changed the law in one narrow but important respect in 1996. The court permitted an employee to pursue a lawsuit against an employer for fraud and negligent misrepresentation in making a job offer. In the Lubore v. RPM Associates, Inc., case (109 Md. App. 312), an employee who held a secure, well-paying job was recruited by a competitor. Over the period of a few months, the parties discussed the terms of an arrangement. The employer mentioned to Lubore that it expected him to sign a written contract. 

Lubore left his former job, began at the new company, but was presented with a 24-page contract containing some terms that had never been discussed. In particular, the employer wanted Lubore to commit to a covenant not to compete when his employment was finished, which would have prevented Lubore from taking a job in his field for a period of time.

Lubore refused to sign the contract, and the new employer fired him. The employer's lack of candor about the contents of the contract was enough to permit Lubore to take the case to trial. 

Under this theory, an employee claiming to be deceived can seek the lost wages from the previous job, that is, the one given up, and not the expected salary from the new job.

Back to Top

Frequently Asked Questions About Sexual Harassment

What is sexual harassment?

Sexual harassment is a form of sexual discrimination, which is forbidden by Title VII of the Civil Rights Act of 1964. Title VII applies to most workplaces with15 or more employees. Sexual harassment includes behavior such as unwanted and unwelcome sexual advances, touchings, requests for dates or sex, frequent comments, or other behavior that creates an unpleasant atmosphere permeated with demeaning, insulting or pornographic references to one sex.
Courts have identified two forms of actionable sexual harassment, called quid pro quo and hostile work environment. These categories are still useful for discussion, though the categories for employer liability have blurred somewhat. Quid pro quo means that an employee's job or job progression is explicitly tied to sexual favors. A supervisor may state or imply that the employee's job is at stake if his demands for sexual attention are not met. Having a sexual relationship with a supervisor is not a legitimate job condition for any legal job. Hostile work environment harassment occurs when the employer permits, encourages, or causes an atmosphere in which the amount of sexual content becomes intolerable to a reasonable employee. Lewd jokes, gropes, ostracism, pornography, and sexual comments may all contribute to a hostile environment. Unless very serious, one incident or sporadic comments will not be enough to render the work environment "hostile." The courts use the terms "severe or pervasive" in measuring whether the offensive conduct rises to the level of sexual harassment.
Sexual harassment is sometimes, but not always, motivated by sexual desire. Sometimes it is motivated by contempt for or hostility toward one gender.

Should I tell someone if I feel I've been sexually harassed?

You certainly should let the harasser or harassers know that their behavior is offensive. If that does not help, then you need to take your complaints up the ladder. If your employer has an anti-sexual harassment policy, you should make a complaint using that policy's procedure. A recent Supreme Court case relieves the employer of liability if the employee unreasonably ignores the policy. Well-designed policies identify more than one possible person to complain to, and explain the kind of investigation that will be undertaken. Even if the policy does not require it, the best practice is to write out your complaint, so that you don't forget anything important, and you have a record of what you said. Keep your complaint factual, but don't leave out the embarrassing parts. You may want to consider telling at least one trusted work friend about the harassment as well. Sometimes that is regarded later as convincing proof that you are not making up events later.

What if the person harassing me is the one that sexual harassment complaints go to?

Some employers' policies were written without thinking of this possibility. You should let the harasser know that you consider his or her behavior unwelcome, unpleasant, and unacceptable in the workplace. Again, doing this in writing is a good practice and may make it easier on you if it is difficult to confront the harasser. If your complaints have made no difference, you will have to identify the most reasonable alternative, such as a personnel department, the harasser's supervisor, or even the member of a board of directors.

Can my employer fire me for filing a complaint?

Title VII protects employees who make charges of sexual harassment and those who speak up on their behalf. Discipline, including firing, is called retaliation and is illegal. Some policies state that filing a false claim of sexual harassment may lead to an employee's termination. It is unclear how courts would rule on a retaliation claim if the employer proves that the sexual harassment charge was malicious and false. You are protected from retaliation, however, if you make a good faith claim of sexual harassment, even if the employer is unable to corroborate it, even if the behavior is not so severe as to be sexual harassment, and even if you don't win on the claim in court.

Does sexual harassment law apply to men?

Yes. Men who are harassed by women can file claims, and men harassed by men (as well as women harassed by women) are protected by the law, so long as the basis for the harassment is the gender of the victim. The implication is that an "equal opportunity harasser" is immune from suit under this law. The harassment, regardless of the motive for it, has to constitute discrimination on account of one's sex.

Does sexual harassment law apply to harassment by co-workers and customers?

Yes, as long as the employer knows about the offensive behavior, and has a chance to fix the problem. Until you speak up, the employer may not have enough reason to suspect that the company's client is harassing you, and by his behavior altering the terms of your employment.

What can I do if the harassment continues after I complain?

Keep a journal of your experiences, and keep the journal at home, not at your desk. Notice who else is being harassed, if anyone, and who else is in a position to notice the harassment. Keep copies of all of your complaints, and any written harassment (notes, e-mails, etc.) If you feel that the behavior is keeping you from a deserved promotion, write down the reason for that idea. Keep copies of your performance evaluations.
If you are threatened, take care of yourself first. No job is worth being raped or sexually assaulted. If the behavior is adversely affecting your emotional health, raising your blood pressure too high, or otherwise ruining your happiness, consider leaving the situation (inside the company or out). It is difficult to prove "constructive discharge" (meaning the employer caused me to quit), but at some point you need to weigh the job against your own well-being.
If the situation does not improve, contact a lawyer, see a counselor if needed, and most importantly, file a timely charge with the equal employment opportunity commission (federal or local). You have 180 days (sometimes a little more, depending on your state) to file an administrative claim with the commission, dated from the last harassing behavior or the adverse job action. Failure to take this step will prevent you from filing a lawsuit later. You don't need a lawyer to do this, but the equal employment opportunity commissions are too busy to do a thorough investigation on all but a few cases. It is a smart idea to have a consultation with a lawyer, before either of you makes a commitment to pursue a lawsuit.

Can I sue the harasser too?

Not under Title VII as the law currently stands. Sometimes you have state law rights on different theories, such as for assault and battery or intentional interference with emotional distress.

If I have to sue, what can a court do for me?

You can ask for monetary damages for your lost wages and benefits, if you lost or left your job because of the harassment. You can also ask the court to require the employer to give you your old job back. You can seek damages to compensate you for your emotional distress and any physical injuries caused by the harassment. (There are limits on these damages, depending on the size of the employer.) In extreme cases, you may also be awarded punitive damages to punish the employer's bad behavior. If you win, the employer will be required to pay your attorney's fees.

Back to Top

Fringe Benefits

Many employers offer pension or 401(k) plans, health insurance, life insurance, and perhaps benefits choice (cafeteria) plans to permanent full-time employees. Administration of fringe benefits is governed by a federal law, ERISA. 

Neither federal nor state law requires an employer to offer any benefits, or any particular combination of benefits. (If an employer offers health benefits, however, the Maryland Insurance Code has a variety of requirements for health plan coverage.) Once a benefit plan exists, though, it must be administered consistently with its own terms, and subject to certain federal guidelines.

Employees who participate in benefit plans are entitled to obtain a copy of the benefit plan document from the employer or the benefit administrator upon written request and payment of a copying charge, or to review the document after giving reasonable notice. In the event of a dispute over provision of plan coverage or payments, it is important to look at the full benefit document, not merely the brochure or summary plan description.

When an employee disputes a plan administrator's decision to deny or limit benefits, there are administrative appeal rights which the employee must exercise before going to court. Making a good record at the administrative level is crucial, since in many cases a reviewing court can review only the facts before the administrator in deciding whether the decision should be upheld.

Severance plans are often governed by ERISA. In other cases, employers do not have a written severance plan, but may offer a set of payments and benefits on an individual basis to terminated employees. Often a severance package will be made in exchange for an agreement releasing the employer from claims for discrimination. If age discrimination claims are sought to be released, an employer must offer the employee 21 days within which to review the agreement and seek the advice of a lawyer. If the employer fails to give the required time period, the release is ineffective. That is, the employee is not prohibited from suing on an age discrimination claim, even if he or she does not pay back the severance payments.

Back to Top

Court of Appeals Permits Recovery of Commissions under the Maryland Wage Payment Collection Law Despite Employer's Policy.

The Maryland Court of Appeals has extended a series of cases favoring employees’ rights to recover unpaid compensation. Most employers pay hourly or weekly wages without serious argument; when they don’t, the Maryland Wage Payment Collection Law permits the employee to sue for the unpaid wages, and ask for tripled damages and attorney’s fees on top.

The situation was cloudier until November 2002 with respect to commissions. While commissions are specifically covered by the law, some employees were deprived of their compensation when they departed their jobs prior to the payment date for the commissions. This case affects policies which state that an employee must be present on the date the commissions are paid (for example, quarterly). The employee in Medex vs. McCabe was illegally deprived of his commissions by such a policy. The Court found that McCabe had performed all the acts required of him in order to be entitled to the commission, and that Medex was bound to pay him, even though he had left his job prior to the commission payout.

The situation has also arisen with bonuses claimed to be due after an employee leave the job, voluntarily or not. Bonuses are different from commissions in two respects. First, they can be viewed as a mere gift, an extra, unenforceable gratuity to an employee who is already paid for doing his job. Second, they are often determined at the end of a year, depending on how the employer’s finances fared, and the amounts may be subjectively determined on an employee by employee basis. These bonuses may not be recoverable under the Wage Payment Act, in the absence of other factors making the right to receive the bonus more concrete.

On the other hand, bonuses are specified as one type of compensation covered by the Maryland Wage Payment Collection Law. The law and the McCabe decision cover the payment of bonuses, as long as the bonus amount is not discretionary or viewed as an ad hoc gift, but rather governed by a formula. For example, if the bonus was promised in a certain amount or percentage when the employee was hired, or the right to the bonus otherwise vested, the payment will be viewed more as a part of the whole compensation package than as a gratuity. If the bonuses were determined prior to an employee’s departure, then the employee’s right to claim the bonus is also stronger.

Back to Top

Selected New State Law Cases

Last July, the Maryland appeals court stopped an employer from inserting itself into the administrative agency’s investigation of a charge of discrimination. The case decided in July 2002 involved a charge of discrimination against a correctional facility. The Maryland Commission on Human Relations began an administrative investigation. Most Maryland residents charging discrimination under state or federal civil rights laws must first file a charge of discrimination with the federal or state commission, the Equal Employment Opportunity Commission or the Maryland Commission on Human Relations. The two agencies have a worksharing agreement, under which one will lead the investigation. (The exception applies to employees in several counties, which have local agencies.)

When the MCHR or the EEOC does conduct a thorough investigation (which does not happen in every case), it commonly seeks to interview witnesses to the incident or work culture. Since many are current employees of the company charged with discrimination, they are or often perceive themselves as vulnerable if they cooperate with the investigation. This case held that an employer may not prevent coworkers from going to interviews, and may not have their lawyer or manager sit in on the interviews, unless the interviewee is a management level employee.

The court’s decision does not mean that employees can refuse to speak with management afterward. But employees are protected by the anti-retaliation provisions of the civil rights laws from discipline or discharge because of their participation or opposition to illegal practices. This is true for such race, sex, age, disability and religion discrimination, among others.

Wrongful termination in Maryland provides a limited exception to the rule of employment at will. In June 2002, the Maryland Court of Appeals further limited recognition of wrongful termination. The case involved a security officer with 24 years tenure at Sears Roebuck, who was promoted to the Security Manager. He observed a store manager whom he believed was stealing merchandise systematically from the store. He reported his findings to his supervisor, the District Security Manager, and continued the investigation. He was then fired for his treatment of the store manager, which included surveillance of his office.

Although it recognized the public policy in favor of reporting criminal activity, the Court decided that the security manager was not protected since he had reported the theft only to Sears officials, not to appropriate law enforcement officials.

Back to Top