Retaliation in the workplace—a guide for Maryland employees

Since 1990, the Americans with Disabilities Act (ADA) has prohibited workplace disability discrimination. But hiring bias, harassment, and failures to reasonably accommodate disabilities remain all to common in Maryland.
At the Employment Law Center of Maryland, we represent victims of ADA discrimination in every Maryland federal, state, and administrative court. To speak with a Maryland disability discrimination lawyer, contact us today.
Federal Disability DISCRIMINATION LawS (ADA)
The most important federal law prohibiting disability discrimination is the Americans with Disabilities Act of 1990 (the ADA). The ADA was amended in 2008 by the ADA Amendments Act (ADAAA), and other federal statutes such as the Rehabilitation Act of 1973 (RA) apply to some instances of disability discrimination; however, ADA lawyers generally refer to all disability discrimination in shorthand simply as ADA discrimination.
The ADA's goal, as stated by Congress, is to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with disabilities. A Maryland ADA lawyer furthers this goal by pursuing civil claims against employers engaging in ADA discrimination.
Importantly, the ADA only applies to employers with at least 15 employees.
The Americans with Disabilities Act (ADA) only applies to employers with at least 15 employees.
The ADA protects individuals with "disabilities." It defines "disability" in three main categories:
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An individual with a physical or mental impairment that substantially limits one or more major life activities;
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An individual with a record of such an impairment; or,
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An individual who is regarded as having such an impairment.
An individual is considered to have a disability under the ADA if any of these three categories apply. A Maryland ADA discrimination lawyer can help determine which of these categories may apply to your specific circumstances.
A "disability" under the Americans with Disabilities Act (ADA) must substantially limit a major life activity.
A major life activity under the ADA can be any of the following (not exhaustive):
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Caring for oneself
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Performing manual tasks
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Seeing
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Hearing
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Eating
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Sleeping
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Walking
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Standing
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Sitting
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Reaching
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Lifting
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Bending
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Speaking
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Breathing
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Learning
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Reading
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Concentrating
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Thinking
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Communicating
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Interacting with others
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Working
Importantly, if an impairment is temporary, it usually does not qualify as a disability under the ADA. A Maryland ADA discrimination lawyer can help you determine whether a condition qualifies as a disability.
A temporary condition (e.g., a cold or the flu) generally does not qualify as a disability under the Americans with Disabilities Act (ADA).
To qualify for the ADA's protections, an individual with a disability must still be "qualified" for the job in question. This means that the individual with a disability must be able to perform the "essential functions" of the job, with or without an accommodation. The burden is on the individual to show that they can perform the essential functions of the job.
To qualify for the ADA's protections, you must be able to perform the essential functions of the job, with or without an accommodation.
In Dahlman v. Tenenbaum, Civil Action No. DKC 10-2993,(D. Md. Aug. 9, 2011), the court outlined a two-part test to determine whether an individual is qualified for a job under the ADA:
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Can the individual perform the essential functions of the job in question; and,
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If not, would reasonable accommodations made by his employer enable him to perform those functions?
ADA discrimination generally takes one of three forms:
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Taking an adverse action (e.g., firing, not promoting, or demoting) because of an individual's disability;
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Failing to grant a reasonable accommodation; or
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Enacting policies or practices that have a disparate impact on individuals with disabilities.
A Maryland employer may not take an adverse action (e.g., hiring, failing to promote, or not hiring at all) against an individual because of their disability (or, as discussed above, because the employer perceives them to have a disability or the individual has a record of a disability).
In Ridgely v. Montgomery County, 164 Md. App. 214, 232 (Md. Ct. Spec. App. 2005), the court outlined a three-part test for adverse action ADA discrimination:
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Individual has a disability as defined by the ADA;
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Individual is qualified for the job, with or without a reasonable accommodation; and
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Individual was excluded from employment (e.g., fired, not hired) based solely on their disability
It's also possible to bring a "hostile work environment" claim related to the ADA, in situations where an individual with a disability is being harassed at work because of their disability. An ADA hostile work environment claim has slightly different requirements than those mentioned above, so you should contact a Maryland ADA discrimination lawyer if you're being harassed at work because of your disability.
In addition to ADA discrimination claims where an employer takes an adverse action against an individual with a disability, a Maryland employer can also violate the ADA by failing to provide a reasonable accommodation to an employee or job applicant.
A Maryland employer can engage in ADA discrimination by failing to provide a reasonable accommodation to an employee or a job applicant.
Under the ADA, a reasonable accommodation includes the following:
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making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
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job restructuring;
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part-time or modified work schedules;
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reassignment to a vacant position;
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acquisition or modification of equipment or devices;
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appropriate adjustment or modifications of examinations;
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training materials or policies;
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provision of qualified readers or interpreters; and,
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other similar accommodations for individuals with disabilities.
Modifying your workspace, changing your schedule, and purchasing assistive equipment are all reasonable accommodations under the ADA.
But as the term itself suggests, an accommodation must be reasonable. This is often the crux of ADA discrimination disputes, as there's no clear-cut line for what accommodations are reasonable, and what accommodations are unreasonable.
As a general rule, an accommodation is unreasonable if it would cause the employer "undue hardship," which often means it would be prohibitively expensive or difficult for the employer to enact.
An employer does not have to provide an accommodation that would cause the employer "undue hardship."
At the Employment Law Center of Maryland, we enforce the disability discrimination provisions of the ADA by bringing ADA discrimination lawsuits in Maryland's federal district court. If you need a skilled Maryland disability discrimination lawyer, get in touch today.
State Disability DISCRIMINATION Laws (Title 20)
Disability discrimination in Maryland is prohibited by Md. Code, State Gov't § 20-606 (known as Title 20), which operates similarly to the ADA in most respects. Title 20 prohibits discrimination based on "[a] disability unrelated in nature and extent so as to reasonably preclude the performance of the employment..."
Title 20 defines a disability as a physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect, or illness, including epilepsy, or a mental impairment or deficiency. Generally, the same conditions that qualify as a disability under the ADA will qualify under Maryland's Title 20.
Generally, the same conditions that qualify as a disability under the ADA qualify as disabilities under Maryland's Title 20.
While the ADA and Title 20 are very similar in how they operate, the Court of Appeals of Maryland recently noted that Maryland regulations require “an individualized assessment by the employer of the employee's abilities to perform the essential functions of a job,” a process according “stronger protection for the employee than the federal ‘interactive process' regulation.”
In Adkins v. Peninsula Reg'l Med. Ctr., 119 A.3d 146, 164 (Md. Ct. Spec. App. 2015), the court noted that Maryland's Title 20 requires an "individualized assessment" of an employee's abilities to perform the essential functions of a job, giving Title 20 "stronger protection for the employee" than the ADA.
Because of Title 20's stronger protections, it may be advisable in some situations to pursue a disability discrimination under Maryland's Title 20, rather than the ADA. At the Employment Law Center of Maryland, we review a potential client's disability discrimination claims under federal, state, and local law to determine the best path for success. If you need a skilled Maryland disability discrimination lawyer, contact us today.
LOCAL Disability DISCRIMINATION Laws
Maryland's Title 20 specifically permits five Maryland counties or cities to provide for disability discrimination claims to be made under county law.
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The following Maryland counties or cities allow disability discrimination actions to be brought under county law:
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Baltimore City. The Baltimore City Code prohibits disability discrimination by employers of any size, but does not provide for a private right of action (i.e., you can't file a disability discrimination lawsuit in court, but you can pursue a complaint and investigation through the Baltimore Community Relations Commission).
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Baltimore County. The Baltimore County Code prohibits disability discrimination by employers of any size.
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Howard County. The Howard County Code prohibits disability discrimination by employers with at least 5 employees, and is very similar to the ADA in its operation.
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Montgomery County. The Montgomery County Code (specifically, the Human Relations Law) prohibits disability discrimination by employers of any size.
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Prince George's County. The Prince George's County Code prohibits disability discrimination by employers of any size.
While Baltimore City prohibits disability discrimination in employment, the City Code does not allow you to file a disability discrimination lawsuit in court.
The Howard County Code section prohibiting disability discrimination in employment only applies to employers with at least 5 employees.
A Maryland disability discrimination lawyer will review federal, state, and county law when evaluating your claim. If you need a skilled Maryland ADA lawyer, reach out to us today.
SUING FOR Disability DISCRIMINATION
When you sue for disability discrimination in Maryland, you need to "administratively exhaust" your claim. This means that you need to file an administrative complaint of disability discrimination before you can file a lawsuit in state or federal court. Like most employment discrimination cases under federal or state law, you must comply with strict deadlines and filing requirements. A skilled Maryland ADA lawyer or disability discrimination lawyer can help you file the necessary complaints, and keep track of the relevant deadlines.
Under the Americans with Disabilities Act (ADA), you must file an administrative complaint of ADA discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) within 300 days of the disability discrimination.
Under the Americans with Disabilities Act (ADA), you must file your administrative complaint of disability discrimination within 300 days of the disability discrimination.
Once the EEOC has investigated your administrative complaint, they will issue you a "notice of right to sue." Once you receive that notice, you have 90 days to file an ADA discrimination lawsuit in federal U.S. District Court for the District of Maryland.
Once the EEOC issues you a "notice of right to sue," you must file your ADA discrimination lawsuit in federal court within 90 days.
Under Maryland's Title 20, you must file an administrative complaint of disability discrimination with the Maryland Commission on Civil Rights within 180 days of the disability discrimination.
Under Maryland's Title 20, you must file your administrative complaint of disability discrimination within 180 days of the disability discrimination.
Depending on whether you filed your administrative complaint of disability discrimination with a state or county agency, you must wait either 45 or 180 days to file a disability discrimination lawsuit in a Maryland circuit court.
Depending on where you filed your administrative complaint, you must wait either 45 or 180 days to file a lawsuit in Maryland circuit court under Title 20.
Because of the strict deadlines required to pursue an ADA or disability discrimination claim, it is vital that you speak with a Maryland ADA lawyer or disability discrimination lawyer as quickly as possible after the discrimination occurs.
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What is an example of age discrimination in the workplace?Age discrimination in the workplace generally takes one of three forms: direct age discrimination, indirect age discrimination, and harassment age discrimination. Direct age discrimination occurs when an employer treats you differently than another person who is in a similar situation as you, but is a different age (usually, younger). Examples of direct age discrimination would be rejecting job applications from older applicants, denying promotion opportunities to older workers, or denying employment benefits (e.g., trainings or other job perks) to older workers. Direct age discrimination's most common example is an employer firing an older, more experienced worker, to hire a younger, cheaper, less-experienced worker. Indirect age discrimination in the workplace occurs when a company's policies or practices operate in such a way as to disadvantage people in certain age groups. For example, if an organization requires that only individuals with a master's degree are eligible for an employment benefit, this could disadvantage younger workers who are less likely to have a post-graduate degree. Lastly, harassment age discrimination in the workplace occurs when employers or co-workers humiliate or degrade you because of your age. Comments about someone being "over the hill," "ancient," or "retirement age" are examples of harassment age discrimination. Harassment age discrimination claims are common in many workplaces, but can be difficult to prove, because you may need to show that your employer knew about the harassment, but did nothing to prevent or stop the age discrimination harassment. If you're unsure whether you've been a victim of age discrimination in the workplace, you should contact an age discrimination lawyer near you.
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What is considered workplace age discrimination?Workplace age discrimination occurs when an employer treats an employee or job applicant more or less favorably because of their age. But not all age discrimination is illegal. Under both the Age Discrimination in Employment Act (ADEA) and Maryland's Title 20, an exception exists for employers who discriminate based on age when age is an essential part of a particular job. This is known as a "bona fide occupational qualification," and is a very narrow exception. To use this exception, an employer must be able to sow that the age discrimination is required for the job to be performed safely and properly. For example, states are generally allowed to discriminate on the basis of age when it comes to hiring firefighters and law enforcement officers. If you're unsure whether you're a victim of workplace age discrimination, contact a Maryland age discrimination lawyernear you.
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Can I be fired or not hired because a younger employee costs less?There's no clear-cut rule when it comes to hiring younger, cheaper workers. Companies often make hiring decisions based on wage or salary history (e.g., a less experienced worker may be asking for a lower salary), and this is not illegal age discrimination. However, basing hiring or firing decisions solely on age is illegal age discrimination if the employer cannot show a reasonable justification for the employment action. For example, if an employer terminates older workers to avoid paying them their benefits, pensions, etc., this runs afoul of the 1990 Older Workers Benefit Protection Act (OWBPA). Whether a hiring or firing decision constitutes illegal age discrimination in the workplace is different in every situation, and you should contact a Maryland age discrimination lawyer near you to discuss the specifics of your case.
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Can an employer ask my age on a job application?Yes, a Maryland employer can ask your age on a job application; however, there are strict limits on when a Maryland employer can ask for your age on a job application, as well as how an employer can use that information. While federal and state age discrimination laws do not technically prohibit prospective Maryland employers from asking about your age, they must have a lawful purpose for doing so. This could include: Completing a background check Enforcing a lawful minimum age requirement for a position (for example, states can discriminate based on age when it comes to firefighters and law enforcement officers) Under both the Age Discrimination in Employment Act (ADEA) and Maryland's Title 20, a prospective employer can discriminate based on (and ask about) age if they can demonstrate that (1) that the age-based employment requirement is reasonably necessary to the essence of the business, and (2) that an individualized approach would be pointless or impractical. This is known as the "bona fide business qualification" exception, and applies in cases where age is highly relevant to the position. While it's not strictly necessary, smart employers tend to, at a minimum, keep your age or other demographic data separate from the information used to evaluate your job application. Regardless, asking a job applicant's age is always risky for an employer. If you're not sure whether a prospective employer engaged in age discrimination in the workplace, contact a Maryland age discrimination lawyer near you.
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Can my employer make me retire?Generally, no, your employer cannot make you retire. Under the Age Discrimination in Employment Act (ADEA), workers age 40 or older are protected from workplace age discrimination, which includes requiring employees to retire upon meeting a specific age. However, there are exceptions to the ADEA's protections, as well as Maryland's Title 20's similar age discrimination protections. A Maryland employer may discriminate based on age if they can show a "bona fide occupational qualification" reasonably necessary “to the normal operation of the particular business.” In order to demonstrate a bona fide occupational qualification, the employer must demonstrate (1) that the age-based employment requirement is reasonably necessary to the essence of the business, and (2) that an individualized approach would be pointless or impractical. This exception is often used by states for the hiring, firing, and compulsory retirement of firefighters and law enforcement officers. If you've been forced to retire, and you're concerned about illegal age discrimination in the workplace, contact a Maryland age discrimination lawyer near you.
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Can you sue for age discrimination in the workplace?Yes. You can sue a current, former, or prospective Maryland employer for age discrimination in the workplace. There are a variety of federal, state, and local/county laws that prohibit age discrimination at work in Maryland. The Age Discrimination in Employment Act (ADEA) protects workers age 40 and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, and terms, conditions, or privileges of employment. Md. Code, State Gov't § 20-606 (Title 20) also prohibits Maryland employers from discriminating on the basis of age. Further, the following Maryland counties/cities have age discrimination in the workplace statutes in place: Baltimore County Baltimore City Frederick County Harford County Howard County Montgomery County Prince George's County Suing an employer for age discrimination in the workplace requires you to comply with strict filing requirements and timelines. A Maryland age discrimination lawyer near you will help you file the appropriate documents, as well as keep track of the relevant deadlines.
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How do I sue my employer for workplace age discrimination?To sue your Maryland employer for age discrimination in the workplace, you'll need to (1) file an administrative complaint and (2) file a lawsuit in a Maryland circuit court. Under both the Age Discrimination in Employment Act (ADEA) and Md. Code, State Gov't § 20-606 (Title 20), you need to "administratively exhaust" your age discrimination in the workplace claim before you can file a lawsuit in court. This means that you'll need to file an administrative complaint with one or both agencies, and wait either 60 or 180 days (depending on which agency you file with) for them to investigate your age discrimination in the workplace complaint. Once the requisite time has passed, or the agency has completed its investigation and issued you a "notice of right to sue," you have 90 days to file an age discrimination in the workplace lawsuit in either federal District Court for the District of Maryland or a Maryland circuit court. Suing an employer for age discrimination in the workplace is a complicated, lengthy process. A Maryland age discrimination lawyer near you will help you file the appropriate complaints, as well as keep track of the relevant deadlines.
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What is the average settlement for age discrimination?The average settlement for age discrimination in the workplace lawsuits in Maryland can range from the tens of thousands of dollars to hundreds of thousands of dollars—but every case is different. A 2010 study done by Lawyers for Civil Justice found that an average out of court settlement for age discrimination in the workplace is about $40,000, and that approximately 10% of cases resulted in a settlement of at least $1 million. As you can see, this is a wide range. The following factors tend to influence the settlement amount of an age discrimination in the workplace case: The facts of the case (e.g., was the discrimination particularly outrageous or egregious?) The evidence available (documents, text messages, emails, etc.) Your credibility The skill and work ethic of your age discrimination lawyer At the Employment Law Center of Maryland, we litigate every single age discrimination in the workplace case as if it's going to trial, putting our clients in the strongest possible position to settle or win their case.
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What are the criteria for age discrimination in the workplace?In a Maryland age discrimination in the workplace case, an employee must generally show the following criteria (or "elements" of the age discrimination claim): That he or she was within the protected class of age forty or over (under the Age Discrimination in Employment Act; this does not apply to state law claims under Title 20); That he or she was performing his job to the employer's legitimate expectations; That he or she was discharged (i.e., fired); and That the employer replaced him or her with someone substantially younger or treated someone more favorably who is substantially younger, or provide other evidence that indicates that it is more likely than not that his or her age was the reason for the adverse employment action. These criteria are slightly different depending the facts of each particular case, as well as whether the case is brought under federal, state, or local law. A Maryland age discrimination lawyer near you can help you identify which criteria apply to your particular case.
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How do you prove age discrimination in firing?Age discrimination in the workplace claims are civil claims—meaning that they are subject to civil "discovery" procedures allowing for the review of documents, deposition of witnesses, and subpoena of other evidence. Generally, an experienced age discrimination lawyer will seek to obtain a great deal of employee data to show the disparate treatment of his or her client, including: the number of employees over age 40 employed by the employer; the number of employees over age 40 in supervisory or management positions with the employer; the salary range for the relevant job category; the average salaries of employees under age 40 and those over age 40 at the employer; and, the average starting salary of an employee over age 40 and of an employee under age 40 in each job category. In addition, an experienced age discrimination lawyer will request documents, interview and/or depose witnesses, and force the employer to testify under oath regarding the age discrimination in the workplace.
Blog Posts
For more on ADA discrimination in Maryland, check out the most recent disability discrimination blog post by the Center team:
Helpful Links
For additional resources on ADA/disability discrimination in the workplace in Maryland, check out the following helpful links: