49B to provide practitioners with an in- troductory look at representing plaintiffs in employment discrimination cases. It does not address every aspect of the law in the four counties where a private cause of action is permitted in this article, nor the various limited administrative remedies that exist in other counties.
Protected Characteristics “Protected Characteristics” are those
grounds on which one may file a claim of discrimination. “Discriminating” in the general sense of the word is not unlawful, and happens daily in the em- ployment context (as well as in most areas of life). The United States Congress, the Maryland General Assembly and several counties have said that discriminating based certain specific traits, i.e., protected characteristics, is unlawful because those traits are immutable and/or have no relation to an employee’s professional merits. What constitutes a protected char-
acteristic varies under federal and local law. Congress decided that the protected characteristics are: (1) race, (2) color, (3) religion, (4) sex,7
(5) national origin, (6)
age, (7) disability, and (8) retaliation for protected activity. Article 49B includes several additional protected characteris- tics and redefines some essential terms regarding discrimination based on age and disability. Article 49B adds: (9) ancestry, (10) marital status, (11) sexual orientation and (12) genetic information. Because Article 49B § 42 authorizes specified counties to enact their own anti-discrimi- nation ordinances, Howard, Montgomery and Prince George’s Counties added still more protected characteristics. These include family responsibilities (Mont- gomery), familial status (Prince George’s, Howard), political opinion (Prince George’s and Howard) and occupation
those complaining were left with whatever remedy they might avail themselves through the MHRC. MHRC, 2005 Annual Report. Available on line at:
http://www.mchr.state.
md.us/2005finalannualreport.pdf. On aver- age ten or fewer employment discrimination cases are heard each year. Cases are first heard by the Office of Administrative Hearings, which makes recommended findings of fact and conclusions of law. That decision is final unless a party appeals to a three-member MHRC panel. Final decisions are appealable to circuit court pursuant to the Maryland Administrative Procedures Act.
7
The definition of sex in many of the statutes which are the subject of this article includes discrimination based on pregnancy or preg- nancy-related conditions.
Winter 2007 Trial Reporter 41
(Prince George’s and Howard).8
Balti-
more County includes marital status and creed.9 In addition to adding certain protected
characteristics to the federal definition, the state and county laws also provide additional protections by using broader definitions of certain protected charac- teristics. For example, the definition of disability is broader under Article 49B § 15(g) and Montgomery and Prince George’s County laws10
federal law. The Americans with Dis- 8
Montgomery County Code § 27-19(a); Prince George’s County Code § 2-186(a)(3); Howard County Code § 12-208. I-II. 9 Article 49B § 43.
10 DJG-Trial Reporter Ad 4/1/05 3:45 PM Page 1
Montgomery County Code § 27-6; Prince George’s County Code § 2-186(a)(14.1).
abilities Act (“ADA”)11
defines disability
as a “physical or mental impairment that significantly limits one or more of the major life activities.”12
Federal law also than under
considers anyone having a record of such impairment or being “regarded as hav- ing such an impairment” to be disabled within the meaning of the ADA. Article 49B, on the other hand, defines disabil- ity as “any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any
11 12
For purposes of this article, the authors in- clude in the “ADA,” the Rehabilitation Act, which applies to employees of the federal government and federal contractors. 42 USC § 12102(2).
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