Agenda Item 8
December 2, 2014
Public Hearing
MEMORANDUM
November 26, 2014
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative Attorney
tf;;)
SUBJECT:
Public Hearing: Bill 51-14, Discriminatory Employment Practices - Retaliation
for Wage Disclosure Prohibited
Bill 51-14, Discriminatory Employment Practices - Retaliation for Wage Disclosure ­
Prohibited, sponsored by Vice President Leventhal and Councilmembers Navarro, EIrich,
Riemer, and Berliner, was introduced on October 28, 2014. A Health and Human Services
Committee worksession is tentatively scheduled for January 15,2015 at 9:30 a.m.
Background
Women continue to
earn
less pay than men for similar work in the workplace. Although,
equal pay for equal work is mandated by Federal, State, and County law, an employee's ability
to assert a right to equal pay may
be
impeded by lack of infonnation. In certain circumstances,
an employee may suffer retaliation by an employer for discussing the employee's salary or the
salary of another employee.
Bill 51-14 would prohibit an employer from retaliating against an employee for
disclosing the wages of the employee or another employee. It would also establish certain
exceptions to the prohibition against retaliation for wage disclosures. For example,
an
employer
would still be pennitted to discipline a human resources employee who has access to the wages
of other employees as part of his or her position for disclosing this infonnation if it was not done
for an appropriate business purpose. Bill 51-14 would add this prohibition to the County
employment discrimination laws. The County Office of Human Rights would enforce this
provision as
it
does other employment discrimination laws.
This packet contains:
Bill 51-14
Legislative Request Report
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Bill No.
51-14
Concerning: Discriminatory Emplovment
Practices - Retaliation for Wage
Disclosure - Prohibited
Revised: October 28, 2014 Draft No.
L
Introduced:
October 28, 2014
Expires:
April 28, 2016
Enacted: _______________
Executive: _ _ _ _ _ _ _ __
Effective: _____________
Sunset Date: _ _ _-..,._ _ __
Ch. _ _, Laws of Mont.
Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Vice President Leventhal and Councilmembers Navarro, EIrich, Riemer, and Berliner
AN
ACT to:
(1)
(2)
(3)
prohibit an employer from retaliating against an employee for certain disclosures of
wages ofthe employee or another employee;
establishing certain exceptions to the prohibition against retaliation for wage
disclosures; and
generally amending the law concerning discriminatory employment practices.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Section 27-19
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original hill.
Deletedjrom existing law by original bill.
Added by amendment.
Deletedjrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves thefollowing Act:.
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BILL
No.
51-14
1
Sec. 1. Section 27-19 is amended as follows:
27-19. Discriminatory employment practices.
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(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:
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(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 ofemployment; or
(B)
limit, segregate, or classifY employees in any way that
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would deprive or tend to affect adversely any individual's
employment opportunities or status as an employee;
(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
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CD
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Sill No.
51~14
28
adversely the individual's employment opportunities or
status as an employee or as an applicant for employment;
or
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(C)
cause or attempt to cause an employer to discriminate
against an individual in violation ofthis 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
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m,
any
program
established
to
provide
apprenticeship or other training.
(b)
The tenn "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.
(c)
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A
person must not:
(1 )
retaliate against any person for:
(A)
lawfully opposing any discriminatory practice prohibited
under this division; or
(B)
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46
filing a complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this division;
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(2)
assist in, compel, or coerce any discriminatory practice prohibited
under this division;
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(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.
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BILL
No.
51-14
55
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(d)
{l)
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)
(B)
employment by an employer;
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:
{l)
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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,
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BILL
No. 51-14
82
marital status, national ongm, 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 ofthe employer's business.
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(t)
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.
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(g)
ill
[Reserved] Except as provided in paragraph
m
an employer
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must not discharge or in any other manner discriminate or
retaliate against an employee because the employee:
®
ill.)
has inquired about, discussed, or disclosed the wages of
the employee or another employee; or
asserts any right under this subsection.
ill
The prohibition against retaliation for wage disclosure under
paragraph
ill
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
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BILL
No.
51-14
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(h)
of other employees or applicants to individuals who do not
otherwise have access to the infonnation, unless the disclosure
is in response to:
®
~
fonnal complaint or charge;
an
(Q
in furtherance of an investigation, proceeding, hearing, or
action, including an investigation conducted
Qy
the
contractor; or
is consistent with the contractor's legal duty to furnish
infonnation.
Notwithstanding any other provision of this division, a physician or
other licensed medical professional may use genetic infonnation 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 perfonning the essential functions of the
position if:
(1 )
the genetic infonnation is provided to the employee in writing as
soon as the infonnation is available;
(2)
the genetic infonnation is not disclosed to any other person
(including the employer) without the employee's voluntary,
written consent;
(3)
the genetic infonnation 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 usmg the
genetic information, or
(B)
the employer from considering the disease or disability, or
the employee's genetic status.
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BILL
No. 51-14
136
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(i)
This division does not prohibit genetic monitoring of biological effects
oftoxic substances in the workplace if:
(l)
the employee has provided prior voluntary, informed consent in
writing to participate in the monitoring;
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Approved:
(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.
0)
An
employer must not require an employee to obtain or reveal any
genetic information that the employer is prohibited from considering
underthls 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.
158
Craig
1.
Rice, President, County Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 51-14
Discriminatory Employment Practices Retaliation/or Wage Disclosure
-
Prohibited
DESCRIPTION:
Bill 51-14 would prohibit an employer from retaliating against an
employee for certain disclosures of wages of the employee or another
employee.
It
would also establish certain exceptions to the
prohibition against retaliation for wage disclosures.
Women continue to earn less pay than men for similar work.
Although, equal pay for equal work is mandated by Federal, State,
and County law, an employee's ability to assert a right to equal pay
may be impeded by lack of information. In certain circumstances, an
employee may suffer retaliation by an employer for discussing the
employee's salary or the salary of another employee.
The goal of this Bill is to promote equal pay for equal work.
County Attorney, Human Rights Office
To be requested.
To be requested.
To be requested.
To be researched.
Robert
H.
Drwnmer, Senior Legislative Attorney
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Compensatory damages and equitable relief.
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