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.
Sunday, July 25, 2021
- Maine Legislature: Public Law 476, enacted without the Governor’s signature and which will become effective October 18, 2021, adds seeking and receiving a protection from abuse order to the categories protected from discrimination in employment and housing
- Eleventh Circuit: Consistent with all other circuits to decide the issue, the court held that sexual harassment is a form of sex discrimination prohibited by the Fair Housing Act
- First Circuit: Circumstances of case before it did not warrant the court’s adoption of the “single filing rule,” which permits a Title VII or Age Discrimination in Employment Act plaintiff who has not exhausted administrative remedies to join an existing discrimination suit, provided one or more of the named plaintiffs in that suit did exhaust such remedies
- US District Court ME: Cross motions for summary judgment denied on disability discrimination, failure to accommodate, and retaliation claims by former nurse with neurogenic cough (a reaction to fragrances) because, in part, evidence would allow a factfinder to conclude that plaintiff’s neurogenic cough substantially limits her ability to perform multiple major life activities as compared to most people
- MHRC: Attached to August 23rd Agenda is the Commission’s newly adopted Policy Regarding Remote Participation in Public Proceedings of the Maine Human Rights Commission
- MHRC: Minutes from July 19, 2021, Commission meeting include that there were 16 predetermination settlement agreements in the past month totaling $457,000
- EEOC: Press release announced that Wisconsin jury awarded $125 million in punitive damages in disability employment discrimination case in which Walmart changed work schedule of longstanding employee with Down syndrome, failed to act on her reasonable accommodation request to be returned to previous schedule, and then fired her
Sunday, June 27, 2021
- Maine Legislature: Public Law 366, approved by the Governor June 24th, amends the Maine Human Rights Act to, in part, add “familial status” as a protected class in employment and list “gender identity” as a standalone protected class instead of a subcategory of “sexual orientation”
- Maine Legislature: Public Law 348, “An Act To Discontinue the Use of the Terms ‘Handicap,’ ‘Handicapped’ and ‘Hearing Impaired’ in State Laws, Rules and Official Documents,” was signed by the Governor on June 24th
- Maine Legislature: Public Law 337, “An Act To Provide for Remote Notarization,” signed by the Governor on June 24th, continues the effect of Executive Order 37 FY 19/20 as amended by Executive Order 37-A FY 19/20
- Maine Legislature: Public Law 301, signed by the Governor on June 21st, lifts all statutes of limitations for actions based upon sexual acts toward minors regardless of the date of the sexual act and regardless of whether the statute of limitations on such actions expired prior to its effective date
- EEOC: New technical assistance document, “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” provides, in part, that ¶ 10, “if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities”
- HUD: Press release announces that the US Department of Housing and Urban Development will publish in the Federal Register a notice of proposed rulemaking entitled, “Restoring HUD’s Discriminatory Effects Standard,” which proposes to rescind the Department’s 2020 disparate impact rule and restore the 2013 discriminatory effects rule
- HUD: New rule published, “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications”
- MHRC: Minutes of June 14th Commission meeting reflect that the Commission continues to operate mostly remotely per the Governor’s order to continue doing so until July 1
- MHRC: July 19th Commission Meeting Agenda posted
Saturday, June 5, 2021
- MHRC: Webinar describes potential unlawful discrimination issues that may arise under the Maine Human Rights Act involving COVID-19 in employment, public accommodations, housing, and education
- EEOC: Updated COVID-19 guidance includes (K.1) “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations,” (K.3) “under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21,” and (K.4) “the ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination”
- Maine Supreme Judicial Court: Post-Pandemic Management Order-SJC-1 rescinds Pandemic Management Order-SJC-2(B) (relating to electronic filing of criminal motions), but leaves the remainder of PMO-SJC-2 intact, including PMO-SJC-2(F), requiring that depositions shall be conducted via remote means unless there is agreement to be in person, and PMO-SJC-2(G), that attorneys and parties may electronically sign documents filed in court or served on opposing parties unless otherwise ordered
- First Circuit: Summary judgment for employer reversed on age employment discrimination claim where there was “direct evidence” of age discrimination, namely, the decisionmaker stating that employer was terminating plaintiff because it “wanted to ‘rejuvenate’ the team/management/region and lower costs,” which a reasonable jury could construe as an admission that employer decided to terminate plaintiff’s employment because of his age inasmuch as it wanted a younger workforce
- First Circuit: Summary judgment for university reversed on Title VII failure to hire race discrimination claim where plaintiff offered sufficient evidence that the proffered reason for decision to hire arguably less experienced white applicant (that she was more qualified and better suited for the position) was pretextual (because there was evidence that plaintiff, who is Black, was evaluated under different criteria from white applicant) and “the same evidence used to show pretext can support a finding of discriminatory animus if it enables a factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action”
- First Circuit: Dismissal affirmed of due process complaint by fired town police officer against district attorney who allegedly issued a “Giglio” letter concerning officer to the town’s police chief that led to officer’s termination without providing officer meaningful notice and opportunity to dispute those allegations, because, in part, officer did not have a protected liberty or property interest in the district attorney’s charging decisions, decisions regarding what materials are disclosed to criminal defendants during discovery, or decisions as to who to call to testify at trial
- MHRC: Minutes of May 17th Commission meeting include that Julie O’Brien has been sworn in as a Commissioner
Wednesday, May 12, 2021
- Law Court: The court for the first time clearly endorsed civil liability for aiding and abetting another’s tortious conduct, provided 1) the aider and abettor has actual—and not merely constructive—knowledge that the principal tortfeasor is engaged in tortious conduct, and 2) the defendant committed acts constituting substantial assistance in the commission of the underlying tort
- First Circuit: Summary judgement on § 1983 First Amendment claim by firefighter vacated where a jury could find that his unfitness for duty was not the true reason for his firing, but, rather, was as a reprisal for his complaints of discrimination and retaliation; and, with respect to his claims against the individual defendants, his interest in speaking against racial discrimination in the fire department was not outweighed by the town’s interests in the efficient discharge of public services
- US District Court ME: In denying motion to dismiss, the court held, in part, that individual liability exists under § 1981 and an independent contractor may be an “employee” for purposes of the Maine Whistleblowers’ Protection Act
- Fourth Circuit: “[I]t is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position”
- Maine Legislature: Public hearing scheduled before Judiciary Committee for May 14th on LD 1688, which would amend the Maine Human Rights Act to, in part, add familial status as a protected class in employment and age as a protected class in public accommodations
- MHRC: May 17th Agenda and Consent Agenda posted
Saturday, April 24, 2021
- First Circuit: Summary judgment affirmed for police department and police chief on detective’s First Amendment speech-retaliation claim because defendants met their burden to prove an independent non-retaliatory basis for detective’s discipline in that they would have taken the actions despite his protected speech and detective provided no evidence of pretext
- MHRC: Minutes from April 12, 2021, Meeting include that there were 39 settlements with over $1.4 million in payments to Complainants over the past quarter
- Maine Legislature: Public hearing scheduled for April 29th before the Judiciary Committee on LD 1416, An Act To Limit Qualified Immunity of Law Enforcement Officers in Maine Civil Rights Act Claims
- Maine Legislature: Public hearing scheduled for April 30th before the Labor and Housing Committee on LD 965, An Act Concerning Nondisclosure Agreements in Employment, which would limit the scope of nondisclosure provisions in pre-employment and settlement, separation and severance agreements
Monday, April 5, 2021
- Law Court: Provision in Maine Whistleblowers’ Protection Act (“WPA”) that the WPA shall not be construed “to diminish or impair the rights of a person under any collective bargaining agreement” resulted in plaintiff’s WPA claim against his former employer being preempted by the federal Labor Management Relations Act (“LMRA”) because his WPA claim as framed would compel the court to determine whether a collective bargaining agreement (“CBA”) gave employer the right to enforce a last-chance agreement (“LCA”) in terminating his employment, and, if employer had that right, plaintiff’s WPA claim would “diminish or impair” employer’s rights under the CBA to enforce the LCA, a result prohibited by section 837
- Sixth Circuit: False Claims Act’s anti-retaliation provision protects former employees alleging post-termination retaliation
- US Supreme Court: The application of physical force to the body of a person with intent to restrain is a Fourth Amendment seizure, even if the force does not succeed in subduing the person
- First Circuit: In light of provision in arbitration agreement that expressly required that any disputes about arbitrability be referred to an arbitrator to decide, the decision on whether a dispute is arbitrable belongs to the arbitrator and not to the court
- Law Court: Offsetting Social Security old-age insurance benefits must be treated as primary payments of workers’ compensation, and the “date of the most recent payment” for purposes of the statute of limitations is therefore the date of most recent payment of offsetting Social Security old-age insurance benefits
- US District Court ME: Motion to continue employment discrimination trial denied where out-of-state witnesses could testify remotely despite COVID-19 pandemic, and defendant did not demonstrate that video testimony would be unfairly prejudicial
- US District Court ME: Prison inmates’ procedural due process claims arising out of Maine Governor’s instruction that the Department of Labor withhold COVID-19-related unemployment benefits they would have otherwise received as a part of their work-release program dismissed where inmates could have appealed decision (the fact that the state government provides prisoners with the essentials necessary to sustain life meant they were not entitled to a pre-termination hearing)
- US District Court ME: Motion to dismiss Federal Tort Claims Act medical malpractice case denied where plaintiff adequately alleged medical provider negligently failed to notify parent of signs of physical abuse of her infant that parent could not detect
- US District Court ME: Granting plaintiff’s motion to amend complaint removed from state to federal court to assert only state-law claims and plaintiff’s motion to remand amended complaint to state court for lack of federal jurisdiction
- US District Court ME: In light of defendants’ failure to fully comply with Magistrate’s order enlarging the deadline to file supplemental initial disclosures or fully answer plaintiff’s discovery requests, defendants were foreclosed from presenting at trial and in response to or in support of any dispositive motion any evidence that they were required to, but did not, provide, unless it was otherwise known to the plaintiff
- Maine Legislature: Hearing before Labor and Housing Committee set for April 7th on LD 1167, which would prohibit an employer from requesting criminal history record information on an initial employee application form or stating on an initial employee application form or advertisement or specifying prior to determining a person is otherwise qualified for the position that a person with a criminal history may not apply or will not be considered for a position
- US DOJ: Statement by the Principal Deputy Assistant Attorney General for Civil Rights Leading a Coordinated Civil Rights Response to Coronavirus
- MHRC: Minutes of March 15th meeting include that Jill Duson joined the Maine Human Rights Commission as Commissioner
- MHRC: April 12th Commission Meeting Agenda posted
Tuesday, March 16, 2021
- US Supreme Court: “This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.”
- First Circuit: Summary judgment for employer reversed on racial employment discrimination claim where district court erred in excluding documents creating a trialworthy issue on grounds that plaintiff had not authenticated them (the parties agreed that summary judgment materials must admissible at trial, but the court left that issue open), noting that “[w]hen a party in response to discovery requests points to a document that appears on its face to be a business record of the producing party, the other parties should be able to treat the document as authentic unless someone offers some reason to think otherwise, before it is too late to do something about it”
- First Circuit: In analyzing Fourth Amendment excessive force claim involving officers pushing plaintiff onto a sofa-recliner (the “push”), which toppled over, then one of the officers kneeling on his back (the “kneel”), the court found that there was clearly a change in circumstances between the push and the kneel that was relevant to the reasonableness inquiry, and it made sense for the district court to segment its qualified immunity analysis of the push and the kneel; the push was not a clearly established violation of plaintiff’s right to be free of unreasonable seizures (and therefore qualified immunity shielded the officers from liability); and there was just enough evidence from which a reasonable jury could have found it was more likely than not that the kneel caused plaintiff some injury additional to that caused by the push
- First Circuit: Summary judgment for employer affirmed on disability discrimination claim because plaintiff stated on his application for Social Security Disability Insurance benefits that he “became unable to work because of [his] disabling condition” on a date prior to his termination and that he was “still disabled” on a date after his termination; he had not given the explanation to the Social Security Administration that he later gave in court that he had fully recovered from his initial disability at the time of his termination but that his mental health and physical condition deteriorated after his termination; and he was therefore judicially estopped from proving that he was a “qualified individual” for purposes of his disability discrimination claim
- First Circuit: $4.25 million age discrimination and retaliation jury verdict for plaintiff vacated, in part, because (on age discrimination claim) younger employees who were not demoted were not similarly situated to plaintiff because they occupied lower positions, performed different duties, and reported to different supervisors; and (on retaliation claim) plaintiff voluntarily forfeited her eligibility for promotion by refusing to participate in a component of the application process
- Maine Legislature: Public hearing scheduled for March 24th before the Labor and Housing Committee on LD 553, An Act To End At-will Employment
- MHRC: 2020 Annual Report includes that within the 775 newly-filed complaints in FY 2020, disability discrimination was filed in 48.5%, Maine Human Rights Act retaliation in 39.4%, whistleblower retaliation in 31.2%, and sex discrimination in 19.1% (they add up to more than 100% because multiple bases are often alleged in a single complaint); and Investigators wrote reports after completed investigations in 34% of cases processed
Tuesday, March 2, 2021
- First Circuit: As a matter of first impression in the First Circuit, the court held that “tester” status does not defeat standing under the Americans with Disabilities Act; but the court affirmed the denial of the testers’ request for attorney’s fees because, although defendant voluntarily agreed to make substantial changes in response to their complaint, the testers failed to demonstrate the requisite judicial imprimatur on that outcome to make them prevailing parties
- Fourth Circuit: Plaintiff in Rehabilitation Act disability employment discrimination case who jury found was denied a reasonable accommodation but awarded zero damages was still a prevailing party entitled to attorney’s fees because employer provided the accommodation after the judgment despite the trial judge not having enjoined it to do so
- US Supreme Court: Federal Tort Claims Act judgment bar applied to lower court order that it lacked subject-matter jurisdiction
- First Circuit: Dismissal affirmed of 42 U.S.C. §§ 1981, 1983, and 1985 racial discrimination and retaliation claims against individual defendant where no facts were pled sufficient to ground a reasonable inference that defendant was liable for any of the wrongs alleged
- First Circuit: Summary judgment affirmed for town on free speech retaliation claim by police officer fired for alleged dishonesty, where officer submitted no evidence that town applied differential standards to officers charged with dishonesty or that other officers were less severely disciplined for similar conduct
- Maine Superior Court: Summary judgment granted (Kelly v. World Kitchen, LLC, 4/18/2020) for store owner in personal injury action arising out of patron tripping on misaligned wheel stop in parking lot because property manager (not store owner) retained exclusive control over parking lot
- Maine Superior Court: Summary judgment denied (McCue v. Enterprise Rent-A-Car Company, 3/16/2020) for rental car company in personal injury action arising out of customer falling on snow-covered parking lot because, although landlord retained almost absolute control over parking lot, that was not necessarily dispositive
- Maine Superior Court: Motion in limine granted (Toto v. Knowles, 3/6/2020) to exclude Optometrist’s expert testimony as to the visual injuries plaintiff sustained in auto accident, but summary judgment denied because plaintiff’s testimony as to her injuries (including visual) were sufficient to establish causation
- EEOC: Press release describing 2020 enforcement and litigation data identifies retaliation as the leading charge basis alleged (55.8 percent of all charges filed), followed by disability (36.1 percent), race (32.7 percent), sex (31.7 percent), and age (21.0 percent) (they add up to more than 100 percent because some charges allege multiple bases)
- Maine Legislature: Public hearing before Judiciary Committee scheduled for March 18th on LD 598, which would amend the Maine Human Rights Act to prohibit discrimination in employment and education based on hair texture or hairstyle
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
