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.
Saturday, January 20, 2018
- First Circuit: The court upheld District Court’s award of $500/hr rate for Boston-based ERISA attorney versus $375/hr for Kentucky-based ERISA attorney in successful ERISA case heard in Boston, finding that courts may base attorney’s fee award on counsel’s standard rate, or the prevailing market rate in the forum, or a reasonable rate in between
- First Circuit: Petition for rehearing en banc granted in claim brought by former House Speaker against Maine Governor
- EEOC: Latest edition of The DIGEST Of Equal Employment Opportunity Law published
Saturday, January 13, 2018
Saturday, January 6, 2018
- Third Circuit: In holding that employee who was fired by hospital for refusing to be inoculated against the flu did not state a claim for religious discrimination under Title VII, where the employee did not belong to any religious organization but held strong personal beliefs opposing the flu vaccine, the court defined religion as follows: “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief- system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.”
- Maine Legislature: LD 1768 would make several changes to the Maine Substance Abuse Testing law, including replacing the “probable cause” prerequisite for an employer to require an employee to submit to a substance abuse test with an “impairment detection” standard, and broadening the circumstances under which employers may conduct random or arbitrary substance abuse testing of employees
- US DOL: Press release states that going forward the Wage and Hour Division will update its enforcement policies to align with recent case law that rejected its six-part test for determining whether interns and students are employees under the Fair Labor Standards Act
- MHRC: January 8th Commission Meeting Agenda and Consent Agenda posted
Tuesday, January 2, 2018
- National Law Review: Tax Reform Act Denies Deductions for Some Sexual Harassment Settlements
- US DOJ: Citing “the ongoing government-wide effort to reduce regulatory burdens and improve the quality of guidance documents offered to the public,” the DOJ announced ADA technical assistance and guidance documents that were withdrawn 12/31/2017, including “Common ADA Problems at Newly Constructed Lodging Facilities” (November 1999); Title II and Title III Highlights (2008); “Commonly Asked Questions About Service Animals in Places of Business” (July 1996); and “Americans with Disabilities Act Questions and Answers” (co-authored by EEOC) (May 2002)
- Law Court: In finding mandatory arbitration agreement between law firm and client unenforceable, the court held that to enforce a contractual provision that prospectively requires a client to submit malpractice claims against a law firm to arbitration, an attorney must have first obtained the client’s informed consent as to the scope and effect of that provision; and, to obtain the client’s informed consent, the attorney must effectively communicate to the client that malpractice claims are covered under the agreement to arbitrate
- Law Court: The court held, in part, that the Maine Freedom of Access Act required the Maine Department of Corrections to disclose portion of final written decision related to disciplinary action that contained a description of a past incident of misconduct by other employees and allegations of misconduct of another employee involved in the incident that resulted in the discipline, as well as the name of the person making the accusation of misconduct against the subject employee
- US District Court ME: The court held that landlord owed a negligence duty to police officer injured while responding a party on landlord’s property, and refused to apply the “Firefighter’s Rule” (prohibiting recovery by a firefighter or police officer injured in the course of duty by perils they are employed to confront) because it has not yet been adopted by the Law Court
- Fourth Circuit: Patron has standing to bring ADA Title III claim where he plausibly alleges his intent to return to place of public accommodation; he is not required to allege specific goods, services, and conveniences that he would seek or the precise dates and arrangements for his return
- US Supreme Court: Chief Justice Roberts’ 2017 Year-End Report on the Federal Judiciary noted that there will be a careful evaluation of the federal judiciary in 2018 to ensure adequate procedures are in place to investigate allegations of misconduct in light of “the depth of the problem of sexual harassment in the workplace”; during the 2016 Term, 71 cases were argued and 68 were disposed of in 61 signed opinions, compared to 82 cases argued and 70 disposed of in 62 signed opinions in the 2015 Term; and civil case filings in the U.S. district courts fell eight percent in 2017 compared with 2016
Monday, December 18, 2017
- 11th Circuit: The court reaffirmed that plaintiffs may establish Title VII disparate treatment even absent a showing of differential treatment of similarly situated comparators if they show “a convincing mosaic of circumstantial evidence” that would allow a jury to infer intentional discrimination
- Law Court: Under deferential standard of review, the court held that Workers’ Compensation Appellate Division did not err in concluding that mileage reimbursement paid to volunteer driver did not constitute remuneration (which is necessary for someone to be an “employee” under the Act) even though it exceeded the volunteer’s immediate expenditures for driving, although the court left open the possibility that it would reach a different conclusion in another case
- Maine Superior Court: Summary judgment denied on Maine Whistleblowers’ Protection Act hostile work environment claim where complaint adequately pled a hostile work environment despite the fact that it did not explicitly include claim, and only a few weeks passed between report of suspected illegal activity and start of hostile environment
- Kennebec Journal: Panel vote supports retired Jay teacher’s age discrimination, retaliation claims
- Press Herald: Lawsuit alleges pattern of abuse at Maine’s juvenile detention center that goes back decades
Friday, December 8, 2017
- First Circuit: In granting summary judgment for employer on religious discrimination and retaliation complaint, the court held that temporal proximity between plaintiff starting to wear headscarf, her filing two EEOC complaints, and adverse employment actions was insufficient to show pretext for employer’s proffered legitimate reasons, “especially if the surrounding circumstances undermine any claim of causation”
- First Circuit: Federal Tort Claims Act’s discretionary function exception barred the maintenance of action to recover damages for unauthorized cutting of trees
- MHRC: December 11th Agenda posted
- Maine Public: Two lawyers and Bowdoin professor discuss “Why does sexual harassment happen, and what can be done on an individual basis or as a culture?”
- Press Herald: Judge rejects motion to dismiss shooting victim’s lawsuit against Biddeford
Saturday, December 2, 2017
- Maine Legislature: New laws effective November 1, 2017, include Chapter 61 (An Act To Protect Landlords from Lawsuits for Damage or Harm Caused by Assistance Animals), Chapter 162 (An Act To Coordinate and Enforce Existing Workplace Training Requirements), and Chapter 219 (An Act To Update the Statutes Governing the Bureau of Labor Standards To Promote Clarity for Workers and Employers)
- Maine Supreme Judicial Court: Court seeks comments on proposed amendment to Maine Rules of Professional Conduct to state specifically that unlawful harassment or unlawful discrimination constitutes professional misconduct
- US Supreme Court: Cert granted to decide question presented, “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine”
Monday, November 27, 2017
- First Circuit: The court affirmed denial of motion to compel arbitration of wage and hour complaint where employee never signed the agreement containing the arbitration clause and had no idea that the agreement even existed (it was between company for whom plaintiff was a delivery driver and vendor with whom plaintiff was required to associate)
- First Circuit: The court granted summary judgment on gender-based or retaliatory hostile work environment claims because the conduct occurring within the statute of limitations was insufficiently severe or pervasive, even taken together with the conduct occurring outside of the statute of limitations
- Press Herald: Reported claims of sex harassment in Maine on the decline
- Press Herald: Patron files race discrimination lawsuit against Boone’s Fish House
Sunday, November 19, 2017
- US Supreme Court: Certiorari granted to decide the question presented whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law
- US District Court ME: In employment discrimination case, Magistrate Judge denied defendants’ motion to compel production of plaintiff’s psychotherapy records with licensed clinical social worker despite plaintiff’s earlier expert designation of social worker and production of mental-health causation letter from social worker, where plaintiff later retracted expert designation and asserted psychotherapist-patient privilege
- US District Court ME: The court granted summary judgment for corrections officers on inmate’s § 1983 assault claim, finding that officers use of force in placing plaintiff in his cell was justified where plaintiff defied an order to remain in his pod, ran toward the cafeteria, refused to be placed in handcuffs, physically resisted efforts to place him in a cell, and kicked when corrections officers were attempting to subdue him
- US District Court ME: On § 1983 claim arising out of fatal shooting, the court granted police officer summary judgment based on qualified immunity finding officer reasonably determined that the decedent posed an immediate threat to police when he pointed his gun over their heads, and that no other remedial action was feasible given the tense, rapidly evolving situation and the various failed attempt s at deescalation
- EEOC: FY 2017 Performance Report includes that the EEOC filed 184 merits lawsuits, including 124 suits on behalf of individuals, 30 non-systemic suits with multiple victims, and 30 systemic suits, which is more than double the number of suits filed in FY 2016
- MHRC: November 13th Commission Meeting minutes posted
- MHRC: December 11th Commission Meeting Agenda posted
- Kennebec Journal: Human rights panel sides with employee in discrimination complaint
Friday, November 10, 2017
- Ninth Circuit: The court followed the Third, Seventh, and Tenth Circuits in holding that plaintiff in an employment discrimination claim may recover a “gross up” of a back-pay award if he is pushed into a higher tax bracket from receiving a lump sum back-pay award than he would have occupied had he received his pay incrementally over several years
- US Supreme Court: Federal Rule of Appellate Procedure 4(a)(5)(C), limiting extensions of time to file appeal to 30 days, is not jurisdictional and is subject to forfeiture if not properly raised by the appellee
- US District Court ME: After bench trial Judge ruled in favor of school district on unlawful retaliation claims, finding teacher failed to demonstrate that the true reason for the district’s adverse actions was related to her advocacy on behalf of disabled students
- MHRC: November 13th Commission Meeting Agenda and Consent Agenda posted
