Legal Updates
John Gause monitors what’s happening in employment discrimination, civil rights, and tort law. He shares some of what he finds on this page.
Friday, June 22, 2018
- Third Circuit: In rejecting claim that public school policy of allowing transgender students to use bathrooms and locker rooms consistent with their gender identity violated constitutional “right to privacy” and Title IX rights of cisgender students (those who identify as being the same sex they were determined to have at birth), the court held that school policy serves a compelling state interest in not discriminating against transgender students and was narrowly tailored to that interest; the policy does not discriminate based on sex because it allows all students to use bathrooms and locker rooms that align with their gender identity; and the presence of transgender students in bathrooms and locker rooms did not create a “hostile environment” for cisgender students; and the court noted support (without deciding issue) for the school’s argument that barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX
- First Circuit: In affirming $2.6 million jury verdict in employment discrimination claim based on race, the court held that there was ample direct evidence of racial discrimination; despite plain error by trial court in limiting evidence at trial to what was submitted by defendant in its request to lift default, defendant failed to make any offers of proof at trial as to what it would have presented as evidence absent the sanction; defendant failed to object at trial to judge allowing plaintiff to add hostile work environment theory on last day of trial; and defendant waived argument that First Circuit decision disallowing § 1981 claims against state actors applied
- EEOC: Comprehensive report identifies barriers to women in federal public safety positions (they occupy only 13% of positions), including misperceptions that women are uncomfortable with carrying firearms, misperceptions that women are uncomfortable with physically strenuous job functions, hiring officials’ concerns that women cannot meet rigorous fitness exam requirements, and too few initiatives that are aimed at the recruitment of women
- US District Court ME: $5 million settlement approved in Route Sales Drivers’ class action claim for unpaid wages
- First Circuit: the court rejected constitutional challenge to Maine “Wrongful Birth Statute,” which barred plaintiff’s medical malpractice action for damages stemming from birth of a healthy child due to failed contraceptive implant
- Maine Department of Labor: Daniel Bolduc hired as Director of the Bureau of Labor Standards
Saturday, June 16, 2018
- Law Court: The court held that an employer is not required to pay for medical marijuana under Workers’ Comp because doing so would constitute criminal aiding and abetting (marijuana distribution is still illegal under federal law), and a state requirement that an employer commit a federal crime is preempted
- US Supreme Court: Amendments to Federal Rules of Civil Procedure, effective December 1, 2018, include amendments to Rule 5 (service) to account for more widespread use of electronic court filings, including the elimination of the certificate of service requirement when a paper is served by filing it with the court’s electronic-filing system; and amendments to Rule 23 (class actions), Rule 62 (stay of proceedings to enforce a judgment), and Rule 65.1 (proceedings against a surety)
- First Circuit: In reversing summary judgment for employer on sex discrimination claim that employer transferred plaintiff and filled her former position with a male in violation of Title VII, the court held that plaintiff’s experience and reputation should have been considered in comparing her qualifications with the male’s despite the male having superior educational credentials; and that job transfer was an “adverse employment action” despite it not having a decrease in rank, benefits, or pay because transfer left her with “significantly different responsibilities” by rendering useless her prior experience and knowledge in the field of radio communications
- US District Court ME: The court, in part, denied summary judgment on failure to accommodate disability claim by installing push-button access to the heavy wooden doors because, while maybe not needed for plaintiff to perform the essential functions of his job, there was sufficient evidence that without it he did not enjoy equal benefits and privileges of employment by making it difficult for him to enter and exit the workplace
- US District Court ME: Motion to dismiss Maine Human Rights Act claim granted where complaint alleged employer “fired [plaintiff] in November of 2015 for reasons that demonstrate disability discrimination similar to the allegations set forth above,” which was a legal conclusion without factual allegations that demonstrate a basis for relief
- MHRC: June 25th Commission Meeting Agenda and Consent Agenda published
Friday, June 8, 2018
- US Supreme Court: Without deciding whether the US constitution permits a baker to violate a state nondiscrimination law by refusing on religious grounds to create a wedding cake for a gay couple, the Court reversed judgment for couple because the baker’s religious freedom argument was not considered by the Colorado Civil Rights Commission “with the neutrality that the Free Exercise Clause requires” (based on a member of the Commission–without objection from the other Commissioners–commenting during a public meeting that freedom of religion had been used to justify discrimination throughout history, as well as to justify slavery and the holocaust)
- Law Court: Oral arguments on June 13th and June 14th will include Ken-17-453 (whether the Court should adopt the “Prisoner Mailbox Rule,” making a prisoner’s “filing” with the court effective upon the prisoner depositing with prison authorities mail addressed to the court); Cum-17-511 (whether the Superior Court erred when it confirmed an arbitration award and two amended awards because, in part, the arbitrator should have recused himself after the losing party’s attorney accused the arbitrator of violating an ethical rule and the arbitrator threatened to sue the attorney for libel); Pen-17-374 (whether trial court erred in unsuccessful ADEA claim by (1) excluding evidence; (2) refusing to instruct the jury that a claim of employment discrimination made to an employer can be “protected activity”; (4) admitting certain records created by supervisors; and (4) declining to waive costs)
- US District Court ME: The court denied motion for summary judgment on assistant manager’s claim for failure to accommodate his disability (Lyme disease) by modifying his work schedule to avoid late-afternoon shifts, finding working the shifts was not “solidly anchored in the realities of the workplace” where there were no schedule requirements in the position description; and denied summary judgment on Family and Medical Leave Act and Maine Family Medical Leave Requirements interference claims because employer authorized intermittent leave in the face of manager’s request for reduced schedule leave
- US District Court ME: In denying motion for summary judgment on age and disability employment discrimination claims, the court found that firing plaintiff purportedly for food safety violation without obtaining a statement from him violated employer’s established policy and was therefore evidence of pretext, and that boss asking plaintiff if he could “handle” a major remodeling showed boss’s concern about plaintiff’s ability to perform his job because of his age and medical condition
- US District Court ME: Adopted amendments to Local Rules effective December 1, 2017, include change to Local Rule 6 that makes clear that Federal Rule of Civil Procedure 6 applies to any period of time provided for in the Local Rules
- Maine Superior Court: Following jury-waived trial, the court entered judgment for school department on former assistant principal’s Maine Human Rights Act retaliation claims because plaintiff had not engaged in protected activity, and, even if she had, the court credited employer’s nondiscriminatory explanation for its allegedly retaliatory actions (the court applied McDonnell Douglas because the parties agreed to it but noted that the Law Court would likely not use McDonnell Douglas for retaliation claims in light of Brady v. Cumberland County)
- MHRC: July 23rd Commission Meeting Agenda posted
Tuesday, May 29, 2018
- First Circuit: In wrongful death action under Federal Tort Claims Act, the court vacated and remanded dismissal for lower court to determine whether plaintiffs’ administrative notice of claim was “presented” to the appropriate federal agency within the two-year statute of limitations when the US Postal Service attempted delivery on the last day of the limitations period after the close of business when no authorized recipient was available, so the agency did not come into actual possession of the notice until the following day
- First Circuit: In medical malpractice action under Federal Tort Claims Act, the court held that discovery rule extended two-year statute of limitations only until date of death certificate and not until autopsy report because death certificate together with other known circumstances suggested the probable cause of the injury sufficient to trigger an obligation to investigate whether it resulted from medical malpractice
- First Circuit: The court held that even if district court in medical malpractice trial erroneously admitted hearsay evidence under the residual exception and business records exception, the error would have been harmless because the jury heard similar evidence from other sources
- MHRC: May 21st Meeting minutes include that the Commission has sought approval from the Governor’s office to fill an Investigator vacancy since March 28th
Friday, May 18, 2018
- First Circuit: In affirming summary judgment for employer on Maine Whistleblowers’ Protection Act (“WPA”) claim, the court held that–despite the Law Court’s interpretation that the McDonnell Douglas framework is inapplicable to WPA cases–a close temporal proximity between WPA-protected activity and a termination (here four days) is not alone enough to establish causation in the face of an employer’s asserted legitimate non-retaliatory reason for the adverse employment action; rather, “the employee must adduce some evidence that the employer’s proffered reason is pretextual”
- MHRC: May 21st Commission Meeting Agenda and Consent Agenda posted
Monday, May 14, 2018
- US Courts: Judicial news feature story recognizes Clerk for the District of Maine Christa Berry for taking photos of new citizens attending naturalization ceremony and posting images on the court’s website
- Law Court: The court held that the informant identity privilege in Maine Rule of Evidence 509 may be claimed by a civil law enforcement body (here the Department of Agriculture, Conservation and Forestry), thereby making the identity of an informant (a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer conducting an investigation) not subject to disclosure under the Maine Freedom of Access Act
- Law Court: Oral arguments for Wednesday, May 16th, will include Chauncey W. Clark v. Benton, LLC, which will decide whether company formed solely to hold real estate for Hammond Lumber is the “alter ego” of Hammond Lumber for purposes of immunity under the Workers’ Compensation Act in personal injury lawsuit brought by Hammond Lumber employee against holding company
- MHRC: May 21st Commission Meeting Agenda posted
Tuesday, May 8, 2018
- First Circuit: In affirming summary judgment for employer on First Amendment retaliation claim, the court held that employer’s knowledge plaintiff’s protected expression could not be be inferred from the temporal proximity of an adverse employment action; email that criticized plaintiff was not an “adverse employment action”; and seven months between protected activity and other adverse employment actions was too long to infer causal connection
- First Circuit: In reversing summary judgment for hospital on Emergency Medical Treatment and Active Labor Act claim based on an inability to join necessary parties (additional heirs) under Federal Rule of Civil Procedure 19(b), the court held that the district court failed to explain why the absent heirs could not be joined
- MHRC: June 25th Commission Meeting Agenda posted
- Maine DOL: No-charge impairment detection courses offered to employers are designed to help owners, managers and supervisors recognize and respond appropriately to employee impairment in the workplace in order to reduce worker accidents and injuries
Tuesday, May 1, 2018
- Seventh Circuit: Disparate impact provision in the Age Discrimination in employment Act, § 623(a)(2), protects outside job applicants in addition to current employees
- Maine Supreme Judicial Court: Comments due May 8th on a package of amendments to Maine Rules of Civil Procedure that would require represented parties to serve pleadings and other papers electronically upon one another or pursuant to Rule 5(b)(1) following service of the summons and complaint under Rule 4
- US District Court ME: In granting summary judgment on state and federal unpaid overtime claims for plaintiffs who worked in homes for people with disabilities seven days on followed by seven days off, court held that employer failed to establish that it fit within either of the sleep time exceptions and must be held to the general rule that sleep time is compensable
- EEOC: Suit filed by EEOC against Walmart under Americans with Disabilities Act for allegedly failing to offer employee whose disability prevented her from performing her sales associate job in Augusta store one of two available fitting room associate positions in Waterville store for which she was qualified, where Walmart’s policy was to only search for open positions in the store in which an employee had been working
- EEOC: Latest quarterly Digest of EEOC Law contains summaries of noteworthy decisions issued by EEOC, including cases involving attorneys’ fees, class complaints, compensatory damages, complaint processing, dismissals, findings on the merits, mixed motive, remedies, sanctions, settlement agreements, stating a claim, summary judgment, and timeliness; as well as an article that recommends ways to prevent workplace harassment
- MHRC: April 23rd meeting minutes reflect that the Commission has 682 cases pending and the average age of cases in the agency is 276 days
- MHRC: May 7th free employment seminar in Augusta will address topics of interest to veterans and service members, including discrimination made unlawful by the Maine Human Rights Act, disability, service animals, and reasonable accommodation
Sunday, April 22, 2018
- US District Court ME: Temporary restraining order against National Endowment for the Arts granted to permit Maine high school winner of Poetry Out Loud competition, who is an asylum seeker from Zambia, to compete in national competition, where eligibility rule limiting competition to U.S. citizens or permanent residents was subject to strict scrutiny because it implicated the denial of a curricular aspect of the student’s public education, and the court was unconvinced that the eligibility rule furthered a substantial government interest in maintaining the NEA’s appropriations from Congress and the funding it receives from private partners
- US District Court ME: In denying summary judgment on disability employment discrimination claims under the Americans with Disabilities Act and Maine Human Rights Act, court found that the ability to work unscheduled hours at unpredictable times was an essential function of store manager position, but jury could find plaintiff qualified where he requested accommodation of working “some hours” beyond the scheduled hours; employer failed to participate in good faith in the interactive process where it failed to contact plaintiff’s doctor to seek further clarification of the accommodation request; there was “direct evidence” of disability discrimination where employer admitted that it excluded plaintiff from work because of his requested scheduling accommodation; and jury could find for plaintiff on retaliation claim despite employer’s argument that it was a “repackaging” of failure to accommodate claim
- MHRC: May 21st Meeting Agenda posted
- ME DOL: Dates for April and May no-cost Wage and Hour Compliance Assistance courses for employers posted
Tuesday, April 17, 2018
- MHRC: New guidance document, “Student Rights Under the Maine Human Rights Act,” offers examples of unlawful education discrimination such as a dress code prohibiting girls from wearing short skirts and dresses but allowing boys to wear shorts; a policy requiring students to use the restroom matching their assigned gender at birth rather than their gender identity; and failing to provide reasonable accommodation based on national origin (examples of reasonable accommodations include providing worksheets in another language or arranging for tutoring so students can become proficient in English)
- Ninth Circuit: Noting that the gender wage gap costs women in the U.S. over $840 billion a year, en banc decision holds that an employer may not avoid liability under the Equal Pay Act by relying on prior salary to justify a wage differential between male and female employees
- US District Court ME: In denying motion to hold a separate trial on whether the statute of limitations had tolled before reaching liability and damages, the court held, in part, that the exemption from statutes of limitations in 14 MRS § 752-C for actions based on sexual acts toward minors applied to claims brought under the Maine Tort Claims Act (instead of two-year SOL)
- US District Court ME: Comments due May 10th on proposed amendments to Local Rules, which include a change to Local Rule 26 that would require the party seeking a hearing to confer with opposing counsel and agree on the relevant discovery materials that should be submitted to the Court with a new form Request for Conference
- US DOJ: Three-part initiative announced to combat sexual harassment in housing includes the creation of an interagency task force between the Department of Justice and the Department of Housing and Urban Development
- US DOL: Opinion letter from the Wage and Hour Division states that employer is not required to pay employees for Family and Medical Leave Act qualifying 15-minute breaks every hour that are necessary for their own continuing serious health conditions
- MHRC: April 23rd Agenda and Consent Agenda posted
