(a) A person must not because of the race, color, religious creed, ancestry, national origin, age, sex, marital status, sexual orientation, gender identity, family responsibilities, or genetic status of any individual or disability of a qualified individual, or because of any reason that would not have been asserted but for the race, color, religious creed, ancestry, national origin, age, sex, marital status, disability, sexual orientation, gender identity, family responsibilities, or genetic status:
(1) For an employer:
(A) fail or refuse to hire, fail to accept the services of, discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment; or
(B) limit, segregate, or classify employees in any way that would deprive or tend to affect adversely any individual’s employment opportunities or status as an employee; or
(C) subject an individual to harassment, including sexual harassment;
(2) For an employment agency: fail or refuse to refer for employment, assign job classifications to, classify or refer for employment, or otherwise discriminate against, any individual;
(3) For a labor organization:
(A) exclude or expel from its membership, or otherwise discriminate against any individual;
(B) limit, segregate, or classify its membership or classify, or fail or refuse to refer for employment, any individual in any way that would deprive or tend to deprive any individual of equal employment opportunities, or affect adversely the individual's employment opportunities or status as an employee or as an applicant for employment; or
(C) cause or attempt to cause an employer to discriminate against an individual in violation of this section; or
(4) For an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training programs: discriminate against any individual in admission to, or employment in, any program established to provide apprenticeship or other training.
(b) Definitions.
(1) The term “discriminate” in subsection (a) includes excluding, or otherwise denying, equal job opportunity or benefits to, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.
(2) The term “harassment” in subsection (a) includes verbal written, or physical conduct, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims, when:
(A) the conduct is based upon an individual’s race, color, religious creed, ancestry, national origin, age, sex, marital status, sexual orientation, gender identity, family responsibilities, genetic status, or disability;
(B) (i) submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
(ii) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
(iii) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile; and
(C) a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.
(3) The term “sexual harassment” in subsection (a) includes unwelcome sexual advances, requests for sexual favors, or other verbal, written, or physical conduct of a sexual nature, whether or not the conduct would be considered sufficiently severe or pervasive under precedent applied to harassment claims, when:
(A) (i) submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
(ii) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or
(iii) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile; and
(B) a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.
(c) A person must not:
(1) retaliate against any person for:
(A) lawfully opposing any discriminatory practice prohibited under this division; or
(B) filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under this division;
(2) assist in, compel, or coerce any discriminatory practice prohibited under this division;
(3) obstruct or prevent enforcement or compliance with this division; or
(4) attempt directly or indirectly to commit any discriminatory practice prohibited under this division.
(d) (1) Except as provided in paragraph 2, a person must not print, publish, or cause to be printed or published, any notice or advertisement indicating any preference, limitation, or specification based on race, color, religious creed, ancestry, national origin, age, sex, marital status, disability, sexual orientation, gender identity, family responsibilities, or genetic status relating to:
(A) employment by an employer;
(B) membership in or any classification or referral for employment by a labor organization; or
(C) any classification or referral for employment by an employment agency.
(2) This subsection does not prohibit a notice or advertisement from indicating a preference, limitation, or specification that is a bona fide occupational qualification for employment reasonably necessary to the normal operation of the particular business or enterprise.
(e) Notwithstanding any other provision of this division, it is not an unlawful employment practice:
(1) for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs, to admit or employ any individual in any program, on the basis of race, color, religious creed, age, sex, marital status, national origin, ancestry, disability, sexual orientation, gender identity, family responsibilities, or genetic status based on a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise;
(2) for a religious corporation, association, or society to hire and employ employees of a particular religion; or
(3) for an employer to deny employment on the basis of religious creed if the observance, practice, or belief cannot be reasonably accommodated by an employer without causing undue hardship on the conduct of the employer's business.
(f) Notwithstanding any other provision of this division, it is not unlawful for any employer to observe the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, that is not a subterfuge to evade the provisions and purposes of this division, except that an employee benefit plan must not excuse an employer's failure to hire any qualified person.
(g) (1) Except as provided in paragraph (2), an employer must not discharge or in any other manner discriminate or retaliate against an employee because the employee:
(A) has inquired about, discussed, or disclosed the wages of the employee or another employee; or
(B) asserts any right under this subsection.
(2) The prohibition against retaliation for wage disclosure under paragraph (1) does not apply to an employee who has access to wage information of other employees or applicants as part of the employee’s essential job functions and discloses the wages of other employees or applicants to individuals who do not otherwise have access to the information, unless the disclosure is in response to:
(A) a formal complaint or charge;
(B) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer; or
(C) is consistent with the employer’s legal duty to furnish information.
(h) Notwithstanding any other provision of this division, a physician or other licensed medical professional may use genetic information about, and consider the genetic status of, an employee to evaluate whether a disease, medical condition, or disability that is currently manifest is preventing the employee from performing the essential functions of the position if:
(1) the genetic information is provided to the employee in writing as soon as the information is available;
(2) the genetic information is not disclosed to any other person (including the employer) without the employee's voluntary, written consent;
(3) the genetic information is maintained as a medical record separate from the employee's employment records; and
(4) no other law prohibits:
(A) the medical professional from collecting or using the genetic information, or
(B) the employer from considering the disease or disability, or the employee's genetic status.
(i) This division does not prohibit genetic monitoring of biological effects of toxic substances in the workplace if:
(1) the employee has provided prior voluntary, informed consent in writing to participate in the monitoring;
(2) the employee receives the results of the monitoring, including both aggregate information and any information regarding the specific employee, as soon as results are available;
(3) the monitoring complies with all other laws, such as regulations protecting human subjects in research; and
(4) the employer (other than a licensed medical professional involved in the genetic monitoring) receives results of the monitoring only in aggregate terms that do not disclose the identity of any specific employee.
(j) An employer must not require an employee to obtain or reveal any genetic information that the employer is prohibited from considering under this division.
(k) An employer may require an employee to adhere to reasonable workplace appearance, grooming, and dress standards that are nondiscriminatory and not precluded by any provision of state or federal law. However, an employer must allow an employee to appear, groom, and dress consistent with the employer’s gender identity. (1974 L.M.C., ch. 9, § 1; 1974 L.M.C., ch. 34, § 1; 1975 L.M.C., ch. 18, § 2; 1977 L.M.C., ch. 30, § 9; 1978 L.M.C., ch. 6, § 8; 1979 L.M.C., ch. 52, § 2; 1984 L.M.C., ch. 26, § 15; 1994 L.M.C., ch. 11, § 1; 2000 L.M.C., ch. 36, § 3; 2001 L.M.C., ch. 9, § 1; 2004 L.M.C., ch. 3, § 7; 2007 L.M.C., ch. 18, § 1; 2015 L.M.C., ch. 3, § 1; 2020 L.M.C., ch. 29, §1.)
Editor’s note—Sections 27-8, 27-9, 27-19, and 27-20 are cited, and Sections 27-8 and 27-9 are quoted in Edgewood Management Corp. v. Jackson, 212 Md. App. 177, 66 A.3d 1152, cert. denied, 434 Md. 313, 75 A.3d 318 (2013). The Court interpreted Section 27-8 as governing the penalties and relief that may be awarded by a case review board after an administrative finding of a discriminatory act under the Montgomery County Code.
This Section is discussed in Belfiore v. Merchant Link LLC, 236 Md. App. 32, 180 A.3d 230 (2018). In Prince of Peace Lutheran Church v. Linklater, 421 Md. 664, 28 A.3d. 1171 (2011), the Court cited Section 27-19, comparing it to its federal counterpart. Section 2-19 is quoted in Hawkins v. Rockville Printing & Graphics, Inc., 189 Md. App. 1, 983 A.2d 531 (2009) and in Gasper v. Ruffin Hotel Corp. of Maryland, Inc., 183 Md. App. 211, 960 A.2d 1228 (2008). Section 27-19 is cited in Doe v. Montgomery County Board of Elections, 406 Md. 697, 962 A.2d 342 (2008). Section 27-19 is quoted in Jacob v. Didlake Corp., 2007 U.S. Dist. LEXIS 4095 (Jan. 19, 2007). Section 27-19 is cited in Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007). Section 27-19 is cited, interpreted, and compared with Haw. Rev. Stat. § 378-2 in Haas v. Lockheed Martin Corp.. 396 Md. 469, 914 A.2d 735 (2007). Section 27-19 is cited in Archdiocese of Washington v. Moersen, 399 Md. 637, 925 A.2d 659 (2007); in Jordan v. Alternative Resouces Corp., 447 F.3d 324 (4th Cir. 2006) (vacated on hearing); and in Heiko v. Colombo Savings Bank, 434 F.3d 249 (4th Cir. 2006), in which the complaint involved a claim under the Montgomery County Code and the Americans with Disabilities Act. Section 27-19 is interpreted and quoted in Haas v. Lockheed Martin Corp., 396 Md. 469, 494 (2007), where the court held that the statute of limitations for employment claims under Montgomery County law runs from the date the discharge actually occurred and not from the earlier date on which the complainant was notified of the termination. Section 27-19 is cited in Ridgely v. Montgomery County, 164 Md. Appl 214, 883 A.2d 182 (2005), where the court held that firefighter’s narcolepsy prevented him from performing his duties but did not prevent him from working a different job and, therefore, did not support a claim of disability based on a disability. Section 27- 19 is quoted in Cohen v. Montgomery County Health and Human Services, 149 Md. App. 578, 817 A.2d 915 (2003), where the Court held that the employee’s claim that the County’s delay in providing reasonable accommodation for her disability stated a cause of action for employment discrimination based on disability. A portion of Section 27-19 was held to be constitutionally invalid and the words “to perform purely religious functions” were severed from the section in Montrose Christian School Corp. v. Carver and Walsh, 363 Md. 565, 770 A.2d 111 (2001). The above section is described and interpreted in Broadcast Equities v. Montgomery County, 123 Md. App. 363, 718 A.2d 648 (1998), vacated, Montgomery County v. Broadcast Equities, Inc., 360 Md. 438, 758 A.2d 995 (2000) (Broadcast Equities, Inc. failed to exhaust its administrative remedies before the Human Relations Commission). The above section is interpreted in Weathersby v. Kentucky Fried Chicken Nat’l. Mgt. Co., 86 Md.App. 533, 587 A.2d 569 (1991) and quoted in Hanna v. Emergency Medicine Associates, P.A., 77 Md.App. 595, 551 A.2d 492 (1989). Section 27-19 is cited in Hopkins v. Baltimore Gas and Electric Company, 77 F.3d 745 (4th Cir. 1996), a sexual harassment case, as an example of the enactment of local laws addressing sexual orientation. Section 27-19(b) is cited in Weathersby v. Kentucky Fried Chicken Nat’l. Mgt. Co., 804 F.Supp. 756 (D.Md. 1992).
See County Attorney Opinion dated 9/19/05 explaining that the Office of Human Rights does not have jurisdiction to handle employment discrimination complaints against private employers who operate on federal enclaves.
2000 L.M.C., ch. 36, §§ 1, 2, 4 and 5, read as follows:
Sec. 1. Short Title. This Act may be cited as the Genetic Information Employment Rights Act of 2000.
Sec. 2. Findings. The County Council finds that:
(a) Genetic status can be used as a proxy for otherwise illegal grounds for discrimination, such as discrimination based on religion, race, nationality, sex, or age, providing a loophole in employment protections previously guaranteed by County law.
(b) The threat of discrimination in employment based on the actual or perceived genetic status of an employee (including an applicant for employment) discourages genetic testing that could prevent or reduce disease or disabilities, provide peace of mind for individuals at risk for certain genetic conditions, and improve medical knowledge through genetic research.
(c) Montgomery County, as home to the Human Genome Project of the National Institutes of Health, the Food and Drug Administration, Celera Genomics, and other public and private institutions at the cutting edge of genetic research, is an international center for the discovery of genetic knowledge to improve public health and welfare that depends on clinical research volunteers who live and work in the County.
(d) Other than an Executive Order protecting federal employees, federal, state, and local employment laws generally have not kept pace with recent, rapid advances in genetic testing and therapies.
Sec. 4. Regulations. All County regulations in effect when this Act becomes law [March 21, 2001] continue in effect, except that any reference in a regulation to employment discrimination includes discrimination based on genetic status, as provided in this Act. Within 120 days after this Act becomes law [March 21, 2001], the County Executive and the Human Relations Commission must submit to the Council, for approval under method (2), any amendments to their respective regulations necessary to implement this Act.
Sec. 5. Public Education Program. The Human Relations Commission must, within 90 days after this Act becomes law [March 21, 2001], propose to the County Council and County Executive a public education program to inform employers, employees, genetic research and testing organizations, and the general public about County law regarding employment discrimination based on genetic information. In developing the proposed program, the Commission should consider the advice of employee and employer groups, genetics researchers, human rights organizations, and other interested individuals and organizations. This Section does not limit any authority or duty of the Commission under Chapter 27 of the County Code.