Employment Discrimination: Which is


Better For Plaintiffs, Federal or State Law by Thomas J. Gagliardo and Katherine R. Atkinson


Thomas J. Gagliardo is a solo practitioner at the Gagliardo Law Firm and a former president of the Maryland Employment Lawyers’ Association.


Katherine R. Atkinson is an associate attorney with the Law Offices of Gary M. Gilbert, P.C., which represents employees and employers nationwide in employment discrimi- nation cases. Both authors’ offices are in Silver Spring, Maryland.


Ask Maryland employment lawyers rep-


resenting plaintiffs which forum is best for their clients’ discrimination claims, and you are likely to hear that federal remedies are too often out of reach. Just surviving the employer’s summary judgment mo- tion is considered a success, even though it provides the clients with no tangible vic- tory. The prevailing perceptions are that: (1) state law is more employee-friendly than federal law;1


(2) state courts are less


eager to grant summary judgment and more willing to permit cases to be tried fully; and, (3) the increasingly conserva- tive federal judiciary is often hostile to employment claims. Consequently, filing private civil actions under Article 49B of the Annotated Code of Maryland, when permitted, can be the most prudent course for plaintiffs’ lawyers. A recent Fourth Circuit dissent perhaps explains why plaintiffs’ employment law- yers are eager to find alternatives to federal litigation: “My colleagues of the panel majority … have today concluded that, as a matter of law, it was not reasonable for an African-American employee to think that the on-the-job remark made by his IBM co-worker-‘[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes f[- ] them’-warranted being reported to his employers as a potential Title VII viola- tion…. First, in ruling that Jordan has not stated a Title VII retaliation claim,


1 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e to 2000e-17; Age Discrimination in Employment Act, 29 U.S.C. §621-634; and Americans with Dis- ability Act of 1990, 42 U.S.C. 12101-12213. See also: Equal Pay Act, 29 U.S.C. § 206(d). The authors will refer to “federal law” and “federal statutes” interchangeably when re- ferring to Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, and any other applicable federal employment discrimination statutes collectively.


40


the majority has misconstrued the facts and misapplied the law…. Second, its conclusion … is contrary to controlling Supreme Court precedent.”2


To those who share the dissent’s view,


it should come as no surprise that the Supreme Court has unanimously reversed the Fourth Circuit in a number of dis- crimination cases in the past decade.3 While there are similarities between


the federal statutes, Article 49B, and four county laws enacted pursuant to 49B (Howard, Prince George’s, and Montgomery, and to a limited extent Baltimore County), practitioners must be aware of the significant differences between them. Those differences include the kinds of discrimination which are prohibited (“protected characteristics”), covered employers, exempted employees, exhaustion of administrative remedies, statutes of limitation, venue, removal to federal court, damages, and attorneys’ fees. Determining whether one should file a federal or state claim depends on a proper analysis of those differences. Not every Maryland victim of employ-


ment discrimination has the right to go to state court. Filing a civil action is available only in the four counties listed above which have been authorized by Article 49B to enact their own employ- ment discrimination statutes.4


If the 2 3


Jordan v. Alternative Res. Corp., 447 F.3d 324, 336 (4th Cir. 2006) (King, J., dissenting).


See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (writing for the majority was Justice Clarence Thomas); O’Connor v. Consolidated Coin Caterers, Corp., 517 U.S. 308 (1996) (writing for the majority was Justice Antonin Scalia). Not unpredictably, on remand, a divided Fourth Circuit panel affirmed summary judgment for Consoli- dated Coin on different grounds. 84 F.3d 718 (4th Cir. 1996). Senior Circuit Judge Butzner found disputed material facts and would not have disposed of the case by sum- mary judgment.


4 Article 49B §§ 42, 43. Trial Reporter 6


discrimination did not occur in one of those counties, an employee has no state law private cause of action and must be content with administrative remedies (or federal court).5


But many consider the


administrative process to be an inadequate forum to vindicate important civil rights, perhaps due to relaxed rules of evidence and procedure, limited discovery, and lack of access to a jury. The Maryland Human Rights Commission (“MHRC”), despite budget constraints, performs invaluable services advising claimants, mediating disputes, and providing training for employers and others, but only hears and decides a handful of employment discrimination cases.6 This article seeks to illustrate the most


salient portions of each county’s code and compare them to federal law and Article


5


McCrory Corp. v. Fowler, 570 A.2d 834 (Md. 1990) (finding a Montgomery County statute was not within the power of Mont- gomery County to enact because the creation of a private cause of action for employment discrimination had not been allowed by the General Assembly and the ordinance did not otherwise qualify as a ‘local’ matter within the meaning of the Maryland Constitution). Subsequently, Article 49B was amended to permit private causes of action in Mont- gomery County, now codified in § 42. In 1993, Article 49B was amended to permit private causes of action in Prince George’s and Howard Counties as well. Thereafter, in Edwards Syss. Tech. v. Corbin, 841 A.2d 845 (Md. 2004) the Court of Appeals rejected an attack on Article 49B’s creation of a private cause of action in selected jurisdictions.


In 2005, the Maryland Human Rights Com- mission (“MRHC”) received 710 complaints of employment discrimination, some alleg- ing multiple grounds. Race discrimination was the most common allegation (273 com- plaints), followed by sex (140), age (117), disability (99), retaliation (99), national origin (43), religion (26), sexual orientation (22), marital status (4) and color (1). Only 36% of those complaints arose in one of the four counties where a private cause of action is permitted. The other three-quarters of


Winter 2007


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