Legal Updates
Tuesday, February 16, 2021
- HUD 2/11/2021 Press Release: “The U.S. Department of Housing and Urban Development (HUD) today announced that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity”
- First Circuit: In affirming (remitted) $500,000 jury award for plaintiff in disability employment discrimination claim arising out of employer’s failure to accommodate employee’s request for an automatic door at its public entrance, the court held that plaintiff’s direct employer and a second entity were liable under the “integrated-enterprise test” (without adopting the test for all disability discrimination cases), the fact that plaintiff was able to enter his workplace (at the risk of bodily injury) despite difficulty opening the door and to perform the duties of his position once inside did not necessarily mean he did not require an accommodation, employer was liable for punitive damages where it did not respond to plaintiff’s accommodation request on three occasions; a new trial was not warranted based on the trial judge’s exclusion of previously undisclosed testimony of one of employer’s witnesses, plaintiff’s counsel’s brief violation of the “Golden Rule” (which prohibits attorneys from suggesting that jurors place themselves in the shoes of the plaintiff) during her closing, and plaintiff’s counsel plain error in suggesting during closing how much the jury should award in damages (disallowed in the First Circuit) because there was no showing of prejudice (here a reasonable probability that the jury would have returned a different damage award otherwise); and further remittitur of the damages to the statutory minimum was not justified because the jury’s finding that employer had over 500 employees was supported by evidence that it consisted of forty-five hotels and resorts (payroll records were not required)
- Third Circuit: “At the pleading stage, an age-discrimination plaintiff does not have to know his replacement’s exact age. That age can come out in discovery.”
- Seventh Circuit: Deciding a matter of first impression in the courts of appeals, court held that the Uniformed Services Employee and Reemployment Rights Act mandate that military leave be accorded the same “rights and benefits” as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences, such as jury duty and sick leave
- First Circuit: Summary judgment for employer on FMLA retaliation claim because there was no evidence that when decisionmaker decided to eliminate plaintiff’s position he thought of her as impaired in any way or knew of her plan to take any leave
- US District Court ME: Following remand from First Circuit (see 10/18/2020 blog post), summary judgment for chief of police and municipal police department denied on § 1983 claims arising out of alleged sexual abuse by subordinate officer because, in part, while plaintiff had to prove a constitutional deprivation by subordinate officer despite those claims being time-barred in order to lay the groundwork for his claims against the other defendants, there was a jury question whether the subordinate officer was acting under color of state law when he engaged in the alleged abuse even though it occurred off duty and was not the product of physical intimidation
- US District Court Me: Leave to amend complaint to include Title VII claim against company president denied because individual employees are not liable under Title VII
- Maine Legislature: Public hearing before Labor and Housing Committee scheduled for February 17th on LD 97, which would prohibit a person, either in the public or private sector, from being required to join a labor organization or pay any labor organization dues or fees as a condition of employment or continuation of employment, notwithstanding any state law to the contrary
- Maine Legislature: Public hearing scheduled for February 18th before Judiciary Committee on LD 233, An Act To Provide Electronic Access to Confidential Juror Information
- MHRC: Minutes of February 8th meeting include Jill Duson’s nomination to fill one of the two vacant Commissioner seats
Thursday, January 28, 2021
- Maine Legislature: Public hearing scheduled for February 3rd before Labor and Housing Committee on LD 61, which would allow a grandparent to request employee family medical leave in order to care for a grandchild who has a serious health condition
- Maine Legislature: Public hearing scheduled for February 10th before Labor and Housing Committee on LD 225, which would amend 26 M.R.S. § 626 so that on cessation of employment all accrued vacation pay must be paid to an employee
- First Circuit: Qualified immunity for police officer affirmed on excessive force claim because there was insufficient evidence that a reasonable officer in the officer’s position would have known his conduct (using the pepper spray) was unlawful under the circumstances.
- EEOC: Commissioner Charlotte A. Burrows appointed Chair of the EEOC
Tuesday, January 19, 2021
- EEOC: Compliance Manual Section on Religious Discrimination revised January 15, 2021
- Ninth Circuit: Divided panel holds under the Family and Medical Leave Act of 1993, “[w]hen an employee working a ‘one week on, one week off’ schedule takes continuous leave, an employer may count both the on and off weeks against the employee’s FMLA leave entitlement”
- First Circuit: Maine statute, 26 M.R.S. § 626, which states that “[a]n employee leaving employment must be paid in full no later than the employee’s next established payday. . . . [and w]henever the terms of employment or the employer’s established practice includes provisions for paid vacations, vacation pay on cessation of employment has the same status as wages earned,” does not create a substantive right to payment for unused vacation time at the cessation of employment
- First Circuit: Summary judgment affirmed on Fourth Amendment claim arising out of fatal shooting of criminal suspect where use of force by police officer was objectively reasonable and officer was entitled to qualified immunity
- Law Court: Interlocutory appeal from denial of of motion to dismiss medical malpractice claim denied where appeal would require court to undertake a complex application of state and federal laws to the facts presented in order to determine whether plaintiff’s malpractice claims are precluded
- MHRC: Video public service announcement posted titled, “Covid19 and Discrimination”
- MHRC: Minutes of January 11, 2021, Commission meeting include that Governor Mills’ Biennial Budget does not propose personnel cuts to the Commission
Thursday, December 31, 2020
- Maine Supreme Judicial Court: Effective December 14th, all Maine courts began accepting the filing by email of certain documents in all cases, including in civil, criminal, juvenile, family matters, and appellate cases
- First Circuit: In affirming $762,525 jury verdict for plaintiff on False Claims Act (“FCA”) retaliation claim, the court held as a matter of first impression that the “but for” causation standard applies to FCA claims, but the trial judge did not commit plain error by giving a “substantial motivating cause” jury instruction without objection by defendant at trial
- First Circuit: In granting summary judgment for employer, court, on disability employment termination claim, focused on the lack of discriminatory animus, despite an apparent showing of pretext; and on disability harassment claim, found that the two timely employer actions that plaintiff claimed anchored his otherwise untimely hostile work environment claim did not do so because they were not substantially related to the prior incidents and were not based on disability
- US Supreme Court: “Appropriate relief” available under the Religious Freedom Restoration Act of 1993 includes claims for money damages against Government officials in their individual capacities
- MHRC: December 14th meeting minutes include that the Commission has submitted an agency-initiated bill to the Maine Legislature that mirrors LD 1703, An Act To Improve Consistency within the Maine Human Rights Act, from the 129th Legislature and died in spring 2020 during the pandemic shortened session (LD 1703 would have added familial status as a protected class in employment; included adult family members dependent for care in the definition of “familial status”; added age as a protected class in public accommodations; provided that public entities cannot discriminate on the basis of protected class; clarified the scope of the Maine Human Rights Act’s education provisions; clarifed the protections provided to pregnant persons in employment; and clarified that the sexual orientation provisions in the Act extend to gender identity)
- EEOC: New section K to technical assistance document on COVID-19 and federal non-discrimination laws addresses “ADA and Title VII Issues Regarding Mandatory Vaccinations,” including, if an employer requires vaccinations when they are available, how it should respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability or a sincerely-held religious belief
Monday, December 7, 2020
- First Circuit: Dismissal affirmed of § 1983 suit seeking retrospective relief by state employees who were not members of union but were forced to pay “agency fees” to it prior to the United States Supreme Court’s 2018 decision holding that such arrangements violate the First Amendment
- First Circuit: Judgment as a matter of law for employer affirmed on age discrimination claim where alleged comparator employees were not similarly situated and plaintiff failed to offer sufficient evidence of pretext for age discrimination
- EEOC: Interactive tool launched that visualizes aggregate data from employer EEO-1 reports
Saturday, November 21, 2020
- First Circuit: Reversing summary judgment for police officers on qualified immunity grounds, court held that–despite this being the first time the First Circuit joined nine other circuits in recognizing a theory of substantive due process liability when officers fail to protect plaintiffs from danger created or enhanced by their affirmative acts–the widespread acceptance of this so-called state-created danger theory was sufficiently clearly established; and a circuit split did not alter that conclusion because the defendants could not have reasonably believed that the First Circuit would follow the minority approach
- First Circuit: Harvard’s race-conscious admissions program does not violate Title VI of the Civil Rights Act of 1964
- Maine Supreme Judicial Court: Effective November 30, 2020, eFiling will be mandatory in the Bangor District Court, Penobscot County Superior Court, and the statewide Business and Consumer Docket for attorneys and self-represented parties filing more than six non-emergency cases in a calendar year
- US District Court ME: Effective November 17, 2020, the Clerks’s Office is closed to in-person visits due to COVID-19
- MHRC: November 16th Commission Meeting minutes posted
Thursday, November 5, 2020
- Maine Supreme Judicial Court: Statement of Acting Chief Justice includes that civil jury trials will not be held until well into 2021, if not later.
- EEOC: Final procedural regulations for issuing guidance, effective December 2, 2020, make guidance documents readily available to the public; ensure that guidance will be treated as non-binding; require a notice and public comment period for significant guidance; and establish a public petition process for the issuance, amendment, or repeal of guidance
- Tenth Circuit: En banc decision held that an adverse employment action is not a requisite element of an Americans with Disabilities Act failure-to-accommodate claim (the First Circuit has already so held)
- US District Court ME: Federal employees do not have a private right of action under the Family and Medical Leave Act
- Law Court: Separation of powers does not prevent a court from enjoining the Maine Department of Corrections from violating inmates’ due process rights by placing or keeping prisoners in segregation solely for the purpose of coercing an admission to wrongdoing; or from holding inmates in segregation without developing, communicating, and applying objective criteria for the inmate to obtain release from segregation
- US District Court ME: The court denied school district’s motion to dismiss Title IX, § 1983, and state tort claims against it arising out of sexual harassment former high school student alleged the school principal committed against her
- US District Court ME: Court COVID-19 entrance protocols updated
- MHRC: Minutes of October 19th meeting include that the Commission will be submitting during the Maine Legislature’s first biennial term that commences on December 2, 2020, at least one proposal to pursue the MHRA amendments that were approved in the last Legislative session, returned to the Legislature by the Governor, and left incomplete due to the Legislature’s untimely closure due to COVID-19
Sunday, October 18, 2020
- EEOC: Proposed conciliation rule (comments due 11/9/2020) would require the EEOC to provide respondents with certain information supporting its reasonable cause finding during conciliation if it had not previously done so
- EEOC: Procedural rule amendments were adopted regarding the digital transmission of documents and updating no-cause determination procedures; and the EEOC Dismissal and Notice of Rights letter after a no-reasonable-cause finding will now include language that the finding “does not mean the claims have no merit” and “does not certify that the respondent is in compliance with the statute”
- First Circuit: In reversing summary judgment for police chief on § 1983 claims arising out alleged sexual abuse by subordinate officer, the court clarified the federal “discovery rule,” under which an otherwise expired statute of limitations may be extended; and held that plaintiff’s voluntary dismissal as untimely of claim against the subordinate officer did not compel dismissal of supervisory and municipal liability claims premised on that officer’s alleged constitutional violations
- First Circuit: Summary judgment for employer affirmed (over dissent) on racial discrimination and retaliation claims brought by black employee who was twice denied promotions to two supervisor positions
- Law Court: Plaza to police department was an appurtenance to a public building and failure to treat snow and ice fell within public building maintenance exception to Maine Tort Claims Act
- US District Court ME: Motion to dismiss denied on Due Process and state tort claims against high-school social worker brought by former student allegedly sexually harassed by school principal
- MHRC: October 19th Commission Meeting Agenda posted
- EEOC: Jocelyn Samuels sworn in as EEOC Commissioner (following 54-42 Senate vote)
Thursday, October 1, 2020
- Maine Supreme Judicial Court: Planned October 5th rollout of the Maine eCourts system in the Bangor courts and BCD postponed until further notice due to a security breach at the eFiling vendor
- Law Court: The physician-patient privilege in Maine Rule of Evidence 503 prevents the disclosure during discovery of even redacted (meaning patient identifying information has been removed) and relevant medical records of a nonparty patient who has not waived the privilege
- Law Court: A bystander may recover for a claim of negligent infliction of emotional distress when that bystander hears (as opposed to sees) an accident occur and then in its immediate aftermath witnesses a close relative severely injured
- Law Court: In upholding legal malpractice jury verdict for plaintiff, the court clarified the “modified” or “failure to plead” proximate cause standard
- US District Court ME: Magistrate Judge granted defendant’s motion to stay court action against jail officials in claim arising out of inmate’s death until state court determined the officials’ coverage under Maine Health Security Act
- MHRC: Minutes of September 14th meeting include that the Commission submitted a budget curtailment of almost $100,000 in response to the Governor’s requirement that state agencies cut 10% of General Fund monies
- EEOC: Keith E. Sonderling sworn in as Commissioner and Vice Chair for a term expiring July 1, 2024, following a 52-41 Senate vote
Tuesday, September 15, 2020
- Maine Department of Labor: Rules implementing new Maine paid leave law, effective January 1, 2021, include clarification that part-time and per diem employees must be included in calculating the 10-employee threshold for employer coverage under the law
- Fourth Circuit: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes.”
- Seventh Circuit: Joining the Ninth Circuit and departing from the Tenth, the court held that the First Amendment “ministerial employee” exception to Title VII liability bars claims by ministerial employees challenging tangible employment actions but not hostile environment discrimination claims
- Maine Supreme Judicial Court: Revision to COVID-19 Phased Management Plan states that Phase 5, which includes jury trials, will commence November 9, 2020
- EEOC: Updated guidance on COVID-19 (D.15) answers “no” to the question, “Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?”
- MHRC: Link to September 14, 2020, Commission Zoom Meeting posted
