degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impair- ment, muteness or speech impediment or physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device; and any mental impairment or deficiency as, but not limited to, re- tardation or such other which may have necessitated remedial or special education and related services.”13


Montgomery and


Prince George’s Counties employ expan- sive definitions similar to Article 49B,14 while Howard and Baltimore Counties adopted the “substantially-limits-one-or- more-major-life-activities” language of the federal statute.15 Rather than require that the impairment substantially limit a major life activity - - a common stumbling block for federal litigants -- Article 49B protects employees with a “disability unrelated in nature and extent so as to reasonably preclude the performance of the employment.”16


The


broader definition specifies particular conditions which the authors interpret as per se protected conditions; however there is case law to the contrary. Although the statutory language of 49B


does not include the ADA’s requirement that a claimed disability significantly im- pair a major life activity, that requirement has been added by Code of Maryland Regulations 14.02.03. While this appears to substantially alter, rather than explain or clarify, the statutory language, the Court of Special Appeals has relied on this regulation to require a prima facie showing of a substantial limitation on a major life activity.17


Because the regulation appears


subject to challenge, we suggest that these cases may have been improperly decided. Under federal law, an employee who is


fired, for example, because she or he has cancer has not stated a prima facie case unless it can be shown that the cancer is substantially impairing her or him in a major life activity. Major life activities include breathing, sleeping, seeing, hear- ing, walking, lifting, eating, and caring for oneself. Accordingly, an employee whose cancer is in remission or who otherwise has no functional impairment will not fall within the ADA’s definition and may be subjected to an adverse employment ac- tion due to discrimination against people with cancer (unless otherwise protected).18 Under Article 49B and the Montgomery and Prince George’s County’s definitions, however, that same employee would be protected if the Court of Appeals struck down the regulation. The federal statute establishes forty as


the minimum protected age. Article 49B and the county ordinances do not specific any minimum age, and thus it appears that persons under the age of forty have an ostensible cause of action.19


Covered Employers Employment discrimination suits may


not be brought against employers with fewer than fifteen employees, under either the federal statutes or the general provi- sions of Article 49B.20


However, all four


Maryland jurisdictions with private causes of action cover smaller employers.21


In Montgomery and Prince George’s Counties, employers with even one em- ployee are covered.22


employers with five or more full or part time employees are covered.23


In Howard County, Baltimore


County permits claims against employ- ers with one or more full- or part-time employees, but excludes employers with fifteen or more employees.24


Baltimore


County’s is the only statute that exempts larger employers from its coverage. It is also the only jurisdiction which does not permit claims to be filed against it.25


All


other jurisdictions waive sovereign im- munity.26


Exempt Employees All of the statutes essentially define All of the statutes also ecempt


employees as individuals employed by an employer.27


persons elected to public office. Notably, as mentioned above, Baltimore County employees do not have a cause of action against the county. Other exemptions include certain employees of religious institutions.


Exhaustion of Administrative Remedies


An administrative complaint must be filed in all cases,28


tion to obtain a final order. There is, however, a minimum time during which a complaint must lie with the Equal Employment Opportunity Commission


18


13 Article 49B § 15(g) (emphasis added). 14


Montgomery County Code § 27.6; Prince George’s County Code § 2-186(a)(14.1) (adding to the “substantially limits” lan- guage, both counties include an extensive list of specific impairments which might properly be read as per se disabilities not included in the federal law.).


15


Howard County Code § 12.201; Baltimore County Code § 29-1-101(i). 16 Article 49B § 16(a)(1).


17


See, e.g., Univ. of Maryland at Baltimore v. Boyd, 612 A.2d 305 (Md. App. 1992) (find- ing significant impairment of a major life activity); Mass Transit Admin. v. Maryland Comm. on Human Relations, 515 A.2d 781 (Md. App. 1986) (finding no significant impairment of a major life activity).


42 21


One might think the employer in this case regards the employee as disabled. While it is irrefutable that the employer regards the employee as “sick,” courts have held that li- ability accrues only if the employer regards the employee as “significantly impaired in a major life activity.” Accordingly, one would have to establish which major life activity the employer thought was impaired and to what degree, then show that it was of a degree sufficient to meet the legal definition of “significantly impaired.”


19 Article 49B § 14-15; Montgomery County


Code § 27-6; Howard County Code § 12.208; Baltimore County Code § 29-1-101 (excluding any definition of age).


20


Title VII § 2000e(b); Article 49B § 15(b) (defining employer as “a person engaged in an industry (in Maryland “or business,” and in Title VII “affecting commerce”) who has fifteen or more employees for each work- ing day in each of twenty or more calendar weeks in the current or preceding calendar year.”).


Montgomery County Code § 27-6; Prince George’s County Code § 2-186(a)(5); How- ard County Code § 12.208.I(d); Baltimore County Code § 29-2-201(c).


Trial Reporter 28 but there is no obliga-


22


Montgomery County Code § 27-6 (includ- ing those who employ volunteers, i.e. non- remunerated employees); Prince George’s County Code § 2-186(5).


23 Howard County Code § 12.208.I(d). 24 Baltimore County Code § 29-2-201(c)(1). 25 Baltimore County Code § 29-2-201(c). 26 Article 49B § 17(K).


27


See, e.g., Article 49B § 15(e); Montgomery County Code § 27-6; Baltimore County Code § 29-2-201(b).


Under federal law, an employee may file with the EEOC or a deferral agency, including the MHRC. However, Article 49B § 42 requires filing with a county agency, however there are some exceptions. The MHRC and the EEOC have a “work-share agreement.” Where a work-share agreement exists, a complaint is considered cross-filed with both agencies. Also, Montgomery County permits filing with any state or federal agency “charged with civil rights enforcement.” Montgomery County Code § 27-7(d). Due to these complexities, caution and care is urged before deciding with which agency or agencies to file.


Winter 2007


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