Text of MD HB 295 (2019)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb0295* HOUSE BILL 295 D5, F1, P1 9lr2179 HB 1565/18 – W&M CF 9lr2218 By: Delegates Wilkins, D. Barnes, Fennell, W. Fisher, and Palakovich Carr Introduced and read first time: January 28, 2019 Assigned to: Ways and Means A BILL ENTITLED AN ACT concerning 1 Nonpublic Elementary and Secondary Schools – Discrimination – Prohibition 2 FOR the purpose of prohibiting a nonpublic elementary or secondary school that receives 3 State funds from refusing enrollment of, expelling, withholding privileges from, or 4 otherwise discriminating against any student or prospective student because of 5 certain factors; making certain provisions of law prohibiting discrimination in 6 employment applicable to nonpublic elementary and secondary schools that receive 7 State funds; authorizing a certain person to elect to have certain claims determined 8 in a certain civil action brought by the Commission on Civil Rights; authorizing the 9 Commission to elect to have certain claims determined in a certain civil action; 10 making certain remedies and procedures regarding discrimination applicable to 11 certain discriminatory acts by certain nonpublic schools; requiring the Commission 12 to file a certain civil action in a certain circuit court within a certain time period; 13 authorizing a certain person to bring a civil action alleging a certain discriminatory 14 act by a certain nonpublic school under certain circumstances; authorizing the 15 Commission to bring an action to obtain a temporary injunction under certain 16 circumstances; altering the definition of a certain term; defining a certain term; 17 providing for the application of certain provisions of this Act; providing for the 18 construction of certain provisions of this Act; and generally relating to discrimination 19 in nonpublic schools. 20 BY adding to 21 Article – Education 22 Section 26–601 through 26–603 to be under the new subtitle “Subtitle 6. 23 Discrimination in Education” 24 Annotated Code of Maryland 25 (2018 Replacement Volume and 2018 Supplement) 26 BY repealing and reenacting, without amendments, 27 Article – State Government 28 Section 20–101(a) 29 2 HOUSE BILL 295 Annotated Code of Maryland 1 (2014 Replacement Volume and 2018 Supplement) 2 BY repealing and reenacting, with amendments, 3 Article – State Government 4 Section 20–101(d), 20–604, 20–1001, 20–1006, 20–1007, 20–1009, 20–1012, 20–1013, 5 and 20–1017 6 Annotated Code of Maryland 7 (2014 Replacement Volume and 2018 Supplement) 8 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 9 That the Laws of Maryland read as follows: 10 Article – Education 11 SUBTITLE 6. DISCRIMINATION IN EDUCATION. 12 26–601. 13 THIS SUBTITLE DOES NOT APPLY TO: 14 (1) WITH RESPECT TO DISCRIMINATION ON THE BASIS OF SEX, A 15 SCHOOL THAT LIMITS, AND CONTINUALLY SINCE THE TIME OF ITS ESTABLISHMENT 16 HAS LIMITED, ADMISSION TO STUDENTS OF ONLY ONE SEX; AND 17 (2) WITH RESPECT TO DISCRIMINATION ON THE BASIS OF RELIGION, 18 A SCHOOL THAT IS AFFILIATED WITH A RELIGIOUS INSTITUTION. 19 26–602. 20 THIS SUBTITLE DOES NOT REQUIRE A SCHOOL TO ENROLL, RETAIN, OR 21 EXTEND PRIVILEGES TO A STUDENT OR PROSPECTIVE STUDENT WHO DOES NOT 22 MEET THE USUAL AND REGULAR QUALIFICATIONS, REQUIREMENTS, AND 23 STANDARDS OF THE SCHOOL, PROVIDED THAT THE DENIAL IS NOT BASED ON 24 DISCRIMINATION ON THE GROUNDS OF RACE, COLOR, RELIGION, SEX, AGE, 25 NATIONAL ORIGIN, MARITAL STATUS, SEXUAL ORIENTATION, GENDER IDENTITY, OR 26 DISABILITY. 27 26–603. 28 A NONPUBLIC ELEMENTARY OR SECONDARY SCHOOL THAT RECEIVES STATE 29 FUNDS MAY NOT REFUSE ENROLLMENT OF, EXPEL, WITHHOLD PRIVILEGES FROM, 30 OR OTHERWISE DISCRIMINATE AGAINST ANY STUDENT OR PROSPECTIVE STUDENT 31 BECAUSE OF THE INDIVIDUAL’S RACE, COLOR, RELIGION, SEX, AGE, NATIONAL 32 HOUSE BILL 295 3 ORIGIN, MARITAL STATUS, SEXUAL ORIENTATION, GENDER IDENTITY, OR 1 DISABILITY. 2 Article – State Government 3 20–101. 4 (a) In Subtitles 1 through 11 of this title the following words have the meanings 5 indicated. 6 (d) “Discriminatory act” means an act prohibited under: 7 (1) Subtitle 3 of this title (Discrimination in Places of Public 8 Accommodation); 9 (2) Subtitle 4 of this title (Discrimination by Persons Licensed or Regulated 10 by Department of Labor, Licensing, and Regulation); 11 (3) Subtitle 5 of this title (Discrimination in Leasing of Commercial 12 Property); 13 (4) Subtitle 6 of this title (Discrimination in Employment); 14 (5) Subtitle 7 of this title (Discrimination in Housing); [or] 15 (6) Subtitle 8 of this title (Aiding, Abetting, or Attempting Discriminatory 16 Act; Obstructing Compliance); OR 17 (7) TITLE 26, SUBTITLE 6 OF THE EDUCATION ARTICLE 18 (DISCRIMINATION IN EDUCATION). 19 20–604. 20 (A) [This] EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, THIS 21 subtitle does not apply to: 22 (1) an employer with respect to the employment of aliens outside of the 23 State; or 24 (2) a religious corporation, association, educational institution, or society 25 with respect to the employment of individuals of a particular religion, sexual orientation, 26 or gender identity to perform work connected with the activities of the religious entity. 27 (B) IF A NONPUBLIC ELEMENTARY OR SECONDARY SCHOOL RECEIVES 28 STATE FUNDS, THIS SUBTITLE APPLIES WITH RESPECT TO THE EMPLOYMENT OF 29 INDIVIDUALS WHO ARE NOT MINISTERIAL EMPLOYEES. 30 4 HOUSE BILL 295 20–1001. 1 (A) In this part[, “unlawful] THE FOLLOWING WORDS HAVE THE MEANINGS 2 INDICATED. 3 (B) “UNLAWFUL EDUCATION PRACTICE” MEANS AN ACT THAT IS 4 PROHIBITED UNDER § 26–603 OF THE EDUCATION ARTICLE. 5 (C) “UNLAWFUL employment practice” means an act that is prohibited under § 6 20–606 of this title. 7 20–1006. 8 (a) On the making of a finding under § 20–1005(c)(2) of this subtitle that an 9 agreement to remedy and eliminate the discrimination cannot be reached, the entire file, 10 including the complaint and any findings, shall be certified to the general counsel of the 11 Commission. 12 (b) The Executive Director of the Commission shall cause a written notice to be 13 issued and served in the name of the Commission, together with a copy of the complaint, 14 requiring the respondent to answer the charges of the complaint at a public hearing: 15 (1) before an administrative law judge at a time and place certified in the 16 notice; or 17 (2) if the complaint alleges an unlawful employment practice OR AN 18 UNLAWFUL EDUCATION PRACTICE, in a civil action elected under § 20–1007 of this 19 subtitle. 20 20–1007. 21 (a) (1) When a complaint alleging an unlawful employment practice OR AN 22 UNLAWFUL EDUCATION PRACTICE is issued and served under § 20–1006 of this subtitle, 23 a complainant or respondent may elect to have the claims asserted in the complaint 24 determined in a civil action brought by the Commission on the complainant’s behalf, if: 25 (i) the Commission has found probable cause to believe the 26 respondent has engaged in or is engaging in an unlawful employment practice OR AN 27 UNLAWFUL EDUCATION PRACTICE; and 28 (ii) there is a failure to reach an agreement to remedy and eliminate 29 the unlawful employment practice OR THE UNLAWFUL EDUCATION PRACTICE. 30 (2) An election under paragraph (1) of this subsection shall be made within 31 30 days after the complainant or respondent receives service under § 20–1006(b) of this 32 HOUSE BILL 295 5 subtitle. 1 (3) If an election is not made under paragraph (1) of this subsection, the 2 Commission shall provide an opportunity for a hearing as provided under § 20–1008(a) of 3 this subtitle. 4 (b) When a complaint alleging an unlawful employment practice OR AN 5 UNLAWFUL EDUCATION PRACTICE is issued and served under § 20–1006 of this subtitle, 6 the Commission may elect to have the claims asserted in the complaint determined in a 7 civil action brought on the Commission’s own behalf, if: 8 (1) the Commission has found probable cause to believe the respondent has 9 engaged in or is engaging in an unlawful employment practice OR AN UNLAWFUL 10 EDUCATION PRACTICE; and 11 (2) there is a failure to reach an agreement to remedy and eliminate the 12 unlawful employment practice OR THE UNLAWFUL EDUCATION PRACTICE. 13 (c) (1) If a complainant or respondent makes an election under subsection (a) 14 of this section, that party shall give notice of the election to the Commission and to all other 15 complainants and respondents. 16 (2) If the Commission makes an election under subsection (b) of this 17 section, the Commission shall give notice of the election to all complainants and 18 respondents. 19 20–1009. 20 (a) If, after reviewing all of the evidence, the administrative law judge finds that 21 the respondent has engaged in a discriminatory act, the administrative law judge shall: 22 (1) issue a decision and order stating the judge’s findings of fact and 23 conclusions of law; and 24 (2) issue and cause to be served on the respondent an order requiring the 25 respondent to: 26 (i) cease and desist from engaging in the discriminatory acts; and 27 (ii) take affirmative action to effectuate the purposes of the 28 applicable subtitle of this title. 29 (b) (1) If the respondent is found to have engaged in or to be engaging in an 30 unlawful employment practice OR AN UNLAWFUL EDUCATION PRACTICE charged in the 31 complaint, the remedy may include: 32 6 HOUSE BILL 295 (i) enjoining the respondent from engaging in the discriminatory 1 act; 2 (ii) ordering appropriate affirmative relief, including the 3 reinstatement or hiring of employees, with or without back pay; 4 (iii) awarding compensatory damages; or 5 (iv) ordering any other equitable relief that the administrative law 6 judge considers appropriate. 7 (2) Compensatory damages awarded under this subsection are in addition 8 to: 9 (i) back pay or interest on back pay that the complainant may 10 recover under any other provision of law; and 11 (ii) any other equitable relief that a complainant may recover under 12 any other provision of law. 13 (3) The sum of the amount of compensatory damages awarded to each 14 complainant under this subsection for future pecuniary losses, emotional pain, suffering, 15 inconvenience, mental anguish, loss of enjoyment of life, or nonpecuniary losses, may not 16 exceed: 17 (i) $50,000, if the respondent employs not fewer than 15 and not 18 more than 100 employees in each of 20 or more calendar weeks in the current or preceding 19 calendar year; 20 (ii) $100,000, if the respondent employs not fewer than 101 and not 21 more than 200 employees in each of 20 or more calendar weeks in the current or preceding 22 calendar year; 23 (iii) $200,000, if the respondent employs not fewer than 201 and not 24 more than 500 employees in each of 20 or more calendar weeks in the current or preceding 25 calendar year; and 26 (iv) $300,000, if the respondent employs not fewer than 501 27 employees in each of 20 or more calendar weeks in the current or preceding calendar year. 28 (4) If back pay is awarded under paragraph (1) of this subsection, the 29 award shall be reduced by any interim earnings or amounts earnable with reasonable 30 diligence by the person discriminated against. 31 (5) In addition to any other relief authorized by this subsection, a 32 complainant may recover back pay for up to 2 years preceding the filing of the complaint, 33 where the unlawful employment practice that has occurred during the complaint filing 34 HOUSE BILL 295 7 period is similar or related to an unlawful employment practice with regard to 1 discrimination in compensation that occurred outside the time for filing a complaint. 2 (c) (1) (i) Except as provided in subparagraph (ii) of this paragraph, if the 3 respondent is found to have engaged in or to be engaging in a discriminatory act other than 4 an unlawful employment practice OR AN UNLAWFUL EDUCATION PRACTICE, in addition 5 to an award of civil penalties as provided in § 20–1016 of this subtitle, nonmonetary relief 6 may be granted to the complainant. 7 (ii) An order may not be issued that substantially affects the cost, 8 level, or type of any transportation services. 9 (2) (i) In cases involving transportation services that are supported 10 fully or partially with funds from the Maryland Department of Transportation, an order 11 may not be issued that would require costs, level, or type of transportation services different 12 from or exceeding those required to meet U.S. Department of Transportation regulations 13 adopted under 29 U.S.C. § 794. 14 (ii) An order issued in violation of subparagraph (i) of this paragraph 15 is not enforceable under § 20–1011 of this subtitle. 16 (d) If, after reviewing all of the evidence, the administrative law judge finds that 17 the respondent has not engaged in an alleged discriminatory act, the administrative law 18 judge shall: 19 (1) state findings of fact and conclusions of law; and 20 (2) issue an order dismissing the complaint. 21 (e) Unless a timely appeal is filed with the Commission in accordance with the 22 Commission’s regulations, a decision and order issued by the administrative law judge 23 under this section shall become the final order of the Commission. 24 20–1012. 25 (a) Within 60 days after an election is made under § 20–1007 of this subtitle, the 26 Commission shall file a civil action in the circuit court for the county where the alleged 27 unlawful employment practice OR UNLAWFUL EDUCATION PRACTICE occurred. 28 (b) If the court finds that an unlawful employment practice OR AN UNLAWFUL 29 EDUCATION PRACTICE occurred, the court may provide the remedies specified in § 30 20–1009(b) of this subtitle. 31 (c) If the Commission seeks compensatory damages under this section: 32 (1) any party may demand a trial by jury; and 33 8 HOUSE BILL 295 (2) the court may not inform the jury of the limitations on compensatory 1 damages imposed under § 20–1009(b)(3) of this subtitle. 2 20–1013. 3 (a) In addition to the right to make an election under § 20–1007 of this subtitle, a 4 complainant may bring a civil action against the respondent alleging an unlawful 5 employment practice OR AN UNLAWFUL EDUCATION PRACTICE, if: 6 (1) the complainant initially filed a timely administrative charge or a 7 complaint under federal, State, or local law alleging an unlawful employment practice OR 8 AN UNLAWFUL EDUCATION PRACTICE by the respondent; 9 (2) at least 180 days have elapsed since the filing of the administrative 10 charge or complaint; and 11 (3) the civil action is filed within 2 years after the alleged unlawful 12 employment practice OR UNLAWFUL EDUCATION PRACTICE occurred. 13 (b) A civil action under this section shall be filed in the circuit court for the county 14 where the alleged unlawful employment practice OR UNLAWFUL EDUCATION PRACTICE 15 occurred. 16 (c) The filing of a civil action under this section automatically terminates any 17 proceeding before the Commission based on the underlying administrative complaint and 18 any amendment to the complaint. 19 (d) If the court finds that an unlawful employment practice OR AN UNLAWFUL 20 EDUCATION PRACTICE occurred, the court may provide the remedies specified in § 21 20–1009(b) of this subtitle. 22 (e) (1) In addition to the relief authorized under subsection (d) of this section, 23 the court may award punitive damages, if: 24 (i) the respondent is not a governmental unit or political 25 subdivision; and 26 (ii) the court finds that the respondent has engaged in or is engaging 27 in an unlawful employment practice OR AN UNLAWFUL EDUCATION PRACTICE with 28 actual malice. 29 (2) If the court awards punitive damages, the sum of the amount of 30 compensatory damages awarded to each complainant under subsection (d) of this section 31 and the amount of punitive damages awarded under this subsection may not exceed the 32 applicable limitation established under § 20–1009(b)(3) of this subtitle. 33 HOUSE BILL 295 9 (f) If a complainant seeks compensatory or punitive damages under this section: 1 (1) any party may demand a trial by jury; and 2 (2) the court may not inform the jury of the limitations on compensatory 3 and punitive damages imposed under § 20–1009(b)(3) of this subtitle. 4 (g) When appropriate and to the extent authorized under law, in a dispute arising 5 under this part, in which the complainant seeks compensatory or punitive damages, the 6 parties are encouraged to use alternative means of dispute resolution, including settlement 7 negotiations or mediation. 8 20–1017. 9 (a) At any time after a complaint has been filed, if the Commission believes that 10 a civil action is necessary to preserve the status of the parties or to prevent irreparable 11 harm from the time the complaint is filed until the time of the final disposition of the 12 complaint, the Commission may bring an action to obtain a temporary injunction. 13 (b) The action shall be brought in the circuit court for the county where: 14 (1) the place of public accommodation that is the subject of the alleged 15 discriminatory act is located; 16 (2) the unlawful employment practice is alleged to have occurred or to be 17 occurring; [or] 18 (3) the dwelling that is the subject of the alleged discriminatory housing 19 practice is located; OR 20 (4) THE UNLAWFUL EDUCATION PRACTICE IS ALLEGED TO HAVE 21 OCCURRED OR TO BE OCCURRING. 22 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 23 October 1, 2019. 24