Both states' laws will now offer three ways in which plaintiffs can proceed if they feel they have been discriminated against. In Maryland, for instance, plaintiffs can still file a claim with a state agency, and if the agency determines the claim is valid, it will be heard by an administrative law judge, who can confer injunctive relief, back pay, reinstatement, and compensatory damages. If the state agency finds that the plaintiff was discriminated against but cannot determine proper restitution, the plaintiff also has the option of taking the case to state court and requesting a jury trial. "Third, a complainant may bring a civil action if 180 days have passed since filing an administrative charge or complaint under federal, state, or local law."
Unsurprisingly, management-side attorneys have already attempted to devise ways to get around these new laws, including attempting to get the cases immediately moved from state to federal court.
Of course, every state law differs, and each can present unique challenges. In Pennsylvania, for instance, employees must first file a claim with the Human Rights Commission, which has up to one year to consider it. After that time, the plaintiff is free to proceed with legal action in state court. In New Jersey, plaintiffs do not have to go through an agency and can file their suits immediately in state court.
Many argue that submitting claims to a state's administrative agency first helps to prevent ludicrous claims from going to court. On the other hand, plaintiff's attorneys argue that the merits of a case should not be determined by a third party and instead should be determined by a judge or jury during a trial.
