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, January 30, 2015
- Seventh Circuit: In addition to finding successor liability on Title VII claim, the court joined the Third and Tenth Circuits in allowing an additional award of damages to compensate plaintiff for the increased taxes he will have to pay by being bumped into a higher tax bracket as a result of receiving a lump sum award on his successful discrimination claim
- US DOL: Office of Federal Contract Compliance Programs’ guidelines implementing Executive Order 11246, which prohibits companies with federal contracts and subcontracts from sex discrimination in employment, updated to, in part, clarify that adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is unlawful discrimination; leave for childcare must be available to men on the same terms as it is available to women; contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related medical conditions comparable to those for disabilities or occupational injuries; include hostile-environment sexual harassment; and clarify that discrimination based on gender identity is unlawful sex discrimination
- US District Court ME: Magistrate Judge recommended denial of inmate’s lawsuit based on failure to exhaust grievance procedure at Maine State Prison because there was no evidence that inmate was aware of grievance procedure
- MHRC: Minutes of January 26th meeting includes notation concerning a pending bill that aims to provide protections for complainants’ medical records and the identities of minor children named in MHRC cases by exempting that information from production of closed MHRC investigations under the Freedom of Access Act
- Bangor Daily: Shaw’s Supermarkets discriminated against older workers, Maine Human Rights Commission found
- Press Herald: Court dismisses lawsuit by pregnant worker stabbed at Maine psychiatric hospital
Wednesday, January 28, 2015
- Sixth Circuit: In reversing summary judgment for employer on FMLA claim, the court held that, although public employers with less than 50 employees within a 75-mile radius of plaintiff’s worksite are not covered by the FMLA, defendant was equitably estopped from raising lack of coverage because its personnel manual stated that its employees were covered and plaintiff relied on manual
- Ninth Circuit: In reversing summary judgment for defendants on inmate’s Eighth Amendment claim, the court found sufficient evidence that the undermanned escort by one prison guard of three mutually hostile, half-restrained, high-security inmates through an isolated prison passage posed a substantial risk of harm and that the escorting officer was subjectively aware of the risk involved and acted with deliberate indifference to the inmate’s safety
- US District Court ME: In age discrimination case, court denied motion to exclude testimony of plaintiff’s 63-year-old former coworker who was also fired by defendant because the testimony would be admissible to “show a defendant’s state of mind through circumstantial evidence, including through evidence of the employer’s prior incidents of discrimination or the employer’s discriminatory atmosphere”
- US District Court ME: In age discrimination case, court denied motion to exclude employee roster from year of plaintiff’s termination showing the names, date of birth, date hired and date of termination of each employee because statistical evidence showing disparate treatment by an employer of members of plaintiff’s protected class may be used to demonstrate pretext
- First Circuit: In affirming summary judgment for employer on FMLA retaliation claim, court held that plaintiff failed to show under the “cat’s paw” theory that supervisors who reported plaintiff’s time-card violations to decisionmaker did not report others who engaged in similar violations
- First Circuit: After affirming dismissal of Fourth Amendment claim brought by one town official against another for falsely telling Sheriff’s Department plaintiff had attended public meetings drunk and driven while intoxicated, the court remanded case to state court to resolve conflict between Maine’s Anti-SLAPP statute and Maine’s state constitution
- EEOC: $102,048 settlement announced in ADA claim in which job applicant could not provide a urine sample for employer’s mandatory pre-employment drug screening due to his kidney disease and dialysis, and employer denied reasonable accommodation such as a blood test, hair test, or other drug test that did not require a urine sample
- EEOC: $15,000 consent decree entered on ADA claim that employer harassed employee who walks with an abnormal gait due a stroke by referring to employee as “a cripple,” mockingly imitating the way she walked, and telling her that she was being a “hysterical basket case” when she objected
- Maine Legislature: LD 188 would provide a civil cause of action for employees who have been harmed psychologically, physically or economically by exposure to abusive work environments
- Maine Legislature: LD 160 would increase the mileage reimbursement for jurors from 15¢ per mile to 44¢ per mile and the per diem compensation to $32 per day
- MHRC: February 23, 2015, Commission Meeting Agenda posted
- Press Herald: Maine human rights panel upholds findings of discrimination, retaliation
Friday, January 23, 2015
Wednesday, January 21, 2015
- US Supreme Court: In holding that devout Muslim inmate had the right under the Religious Land Use and Institutionalized Persons Act of 2000 to grow a 1/2-inch beard in accordance with his religious beliefs, the Court held that the fact that the Arkansas Department of Corrections permits 1/4-inch beards for prisoners with medical conditions suggested that its interests in preventing contraband and aiding prisoner identification could be “achieved by narrower ordinances that burdened religion to a far lesser degree”
- First Circuit: The court affirmed summary judgment for public employer on First Amendment claim because a jury could not reasonably infer that any of the defendants were aware of the workers’ political affiliations
- Maine Legislature: LD 12 would add “rock climbing, ice climbing, bouldering, rappelling” to the list of “recreational or harvesting activities” that are exempt from a landowner’s duty of care
- Maine Legislature: LD 57 would increase the mileage reimbursement for jurors from 15¢ per mile to 44¢ per mile and per diem rate from $10/day to $20/day
Friday, January 16, 2015
- Maine DOL: Press release describing the results of an employer survey on Maine’s drug testing statute states that the department is considering proposed legislation to reform the statute
- Second Circuit: In reversing summary judgment for police department on lieutenant’s First Amendment claim, the court found sufficient direct evidence of retaliation where the department disciplined lieutenant for emailing CNN and Newsday about department policy “in a manner tending to bring discredit to the Police Department,” and, in rejecting the department’s Mount Healthy defense that it would have taken the same action anyway, the court stated that “inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense”
- Third Circuit: In reversing dismissal of First Amendment claim, the court held that, under recent Supreme Court precedent, a public employee’s speech does not lose its protection simply because it concerns or is related to the employee’s job duties; rather, it is not protected if it is “within the employee’s ordinary job duties” to engage in the speech
- Eleventh Circuit: The court answered the following FLSA unpaid overtime question in the negative: if an employer knew its employee underreported his hours, can it still assert equitable defenses based on the employee’s own conduct in underreporting as a total bar to the employee’s FLSA claim?
- Bangor Daily: Settlement talks underway in Brunswick Junior High School bullying case
- NY Times: Supreme Court Seeks Compromise on Equality Cases
Wednesday, January 14, 2015
- EEOC: “Chair’s Message” will be a series of articles by Chair Jenny Yang providing the public with information about the work of the EEOC, including best practices and insights on how to prevent, stop and remedy workplace discrimination, among other information
- EEOC: Title VII suit filed by EEOC on behalf of former Rastafarian delivery driver who refused to remove head covering (a “crown”) while working due to sincere religious belief that he must keep his head covered to prevent his spiritual energy from escaping into the atmosphere
- Eleventh Circuit: In reversing summary judgment, the court held that a federal prisoner who is a Santeria priest presented sufficient evidence of a violation of the Religious Freedom Restoration Act where his religious beliefs require him to wear a unique set of beads and shells that are infused with the spiritual force Ache (by soaking the beads and shells in animal blood) and to receive them in prison from his goddaughter, a Santeria priestess
- Seventh Circuit: In reversing summary judgment for employer, the court found sufficient evidence that publicly traded company retaliated against former employee for filing EEOC complaint against it by listing her by name in its SEC filing and referring to her complaint as meritless a few months after the EEOC stated its intention to seriously pursue her charge (but 14 months after the EEOC complaint was filed)
- First Circuit: In affirming summary judgment for landlord on Fair Housing Act claim, the court held, in part, that (1) housing authority who administered Section 8 program (who was not named) rather than landlord may have unlawfully denied request for reasonable accommodation for disability to continue Section 8 subsidy in 3-bedroom apartment, and (2) landlord’s alleged adverse actions were apparently motivated by Section 8 status and not disability
- Law Court: Court vacated and remanded Superior Court judgment that placement on sex offender registry did not violate the Bill of Attainder Clause for offenses that were added to the statutory list of covered sex offenses after sentencing
- US District Court ME: The court held that complaint did not plead sufficient medical malpractice claim after disregarding conclusory statements that defendant’s treatment was “negligent and in breach of the applicable standards of care,” “improper,” and “unnecessary”
- HUD: Agency-filed charge alleges landlord violated Fair Housing Act by denying tenant with psychiatric disability’s request to keep an emotional support animal
- MHRC: January 26th Agenda and Consent Agenda published
- Press Herald: Settlement reached in federal suit against Maine in document-shredding case
- Bangor Daily: Former Gouldsboro resident sues multiple agencies, officials over 2007 rape case
Friday, January 9, 2015
- DC Circuit: The court held that the six-year statute of limitations in 28 U.S.C. § 2401(a) does not apply to claims brought by federal employees under Title VII
- US District Court ME: Chief Judge Nancy Torresen Begins Term
- US District Court ME: In a matter of first impression, the court held that a private action for severance pay pursuant to 26 M.R.S. § 625-B(4) terminates when the Maine Director of Bureau of Labor Standards files its own suit seeking severance pay for the private plaintiffs
- Seyfarth Shaw: January 8th blog post points out that federal courts are currently split on the question of whether the anti-retaliation provisions of the federal Dodd-Frank Act apply to employees who disclose their employer’s alleged securities violations to company officials but do not report the claimed violations to the Securities and Exchange Commission
Monday, January 5, 2015
- Law Court: The court held that plaintiff, who was injured in a motorcycle accident caused by a third-party driver, could not recover against his $1 million umbrella insurance policy because the policy did not expressly include coverage and Maine’s uninsured motorist statute, requiring that the amount of uninsured coverage “may not be less than the amount of coverage for liability for bodily injury or death in the policy offered or sold to a purchaser unless the purchaser expressly rejects such an amount,” does not apply to umbrella policies
- US District Court ME: In affirming hearing officer’s conclusion that student did not have a “specific learning disability” entitling her to coverage under the Individuals with Disabilities in Education Act (“IDEA”), the court held, in part, that the case did not present the opportunity to determine the validity of the requirement in the Maine special education regulations that a student may only be found to have a “specific learning disability” if she has taken “a peer-reviewed, scientifically-documented test of psychological processing” (the “empirical proof requirement”)
Monday, December 29, 2014
- First Circuit: In affirming dismissal of Title VII claim based on forum selection clause in employment contract that precluded adjudication in federal court, the court held, in part, that defendant did not waive issue by raising it 11 months after complaint was filed because motion to dismiss based on a forum-selection clause may be raised at any time in the proceedings before disposition on the merits
- Eighth Circuit: In reversing and remanding order that the EEOC pay $4.6 million in attorney’s fees and costs to defendant employer in Title VII claim, the court held, in part, that dismissal of 67 claims due to the EEOC’s failure to conduct a reasonable investigation and bona fide conciliation was not “on the merits” and therefore did not trigger defendant’s right to collect attorney’s fees against EEOC
- Fourth Circuit: The court held that North Carolina statute that requires a physician to perform an ultrasound, display the sonogram, and describe the fetus to a woman seeking an abortion even if the woman actively “avert[s] her eyes” and “refus[es] to hear” was compelled speech in violation of the First Amendment
- Law Court: The court held that public employees’ work-issued cellular telephone numbers are exempt from the disclosure requirements of the Maine Freedom of Access Law
- US District Court ME: Magistrate Judge dismissed inmate’s 8th Amendment claim after conducting evidentiary hearing and determining that inmate failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act
- EEOC: $85,000 consent decree entered in disability discrimination case in which woman with a prosthetic leg was removed from her job inspecting televisions because of concerns she would be bumped into or knocked down
- MHRC: Amended January 26th Agenda posted
Monday, December 22, 2014
- NLRB: The National Labor Relations Board Office of General Counsel has issued consolidated complaints against McDonald’s USA, LLC, and its franchisees alleging they are a joint employer
- First Circuit: In an en banc decision, the court held that the Massachusetts Department of Correction did not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment by refusing to provide sex reassignment surgery for an inmate with gender identity disorder
- First Circuit: In affirming summary judgment for employer in ADA reasonable accommodation and constructive discharge claims brought by EEOC on behalf of former employee with diabetes, the court held that employee failed to participate in good faith in the interactive process by resigning rather than exploring employer’s offer to look for alternative accommodations after it informed employee that it could not accommodate her request to work a set 9-5 schedule
- First Circuit: In affirming summary judgment for insurer in reach and apply claim following $100,000 judgment against insured selectman on slander and due process claims brought by former plumbing inspector, the court held that “employment-related practices” exclusion barred plumbing inspector’s recovery against insurer even if he was an independent contractor because, as the district court properly held, “although the ordinary person unschooled in the law or in insurance appreciates that there is a distinction between being an employee and an independent contractor, the ordinary person also appreciates that either status is a form of employment”
- US District Court ME: In denying, in part, motion to dismiss pro se complaint, the court held that plaintiff sufficiently alleged a violation of the Fourth Amendment (illegal arrest and excessive force) where officer arrested plaintiff for refusing to sign summons for misusing 911 emergency call system but plaintiff alleged that repeated prior 911 calls were for actual emergencies; rejected claim that individuals may be liable under the ADA or the public accommodations provisions of the Maine Human Rights Act (“MHRA”); and found sufficient ADA and MHRA allegations against police department because the arresting officer may have wrongly arrested plaintiff, a person with a disability, because he misperceived the effects of her disability as criminal activity
- Fifth Circuit: In reversing denial of attorney’s fees to plaintiff who prevailed on constitutional claim, the court held that court must award attorney’s fees under 42 USC § 1988 (despite discretionary language in § 1988) to prevailing plaintiff unless “special circumstances” are present, and limited nature and scope of injunctive relief and limited injury to rights play no role in the special-circumstances analysis, although they are relevant to the reasonableness of a fee request
- MHRC: January 26th Commission meeting Agenda posted
