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.
Thursday, October 2, 2014
- MHRC: Effective September 24, 2014, the Maine Human Rights Commission repealed and replaced its Employment Regulations (Chapter 3) and amended its Procedural Rule (Chapter 2). The Chapter 3 changes update the Rule to include the employment provisions of the Maine Human Rights Act and provisions in the Equal Employment Opportunity Commission regulations interpreting Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. The Chapter 2 changes allow parties to complaints to pay for mediations conducted through the Commission’s Third-Party Neutral Mediation Program.
- US Supreme Court: Among cases to be decided during 2014-2015 term, which opens Monday:
- Young v. United Parcel Service: Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
- US v. Wong: Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.
- US v. June: Whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.
- Mach Mining v. Equal Employment Opportunity Commission: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
- US DOJ: New technical assistance publication issued, “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities”
- US District Court ME: Proposed Amendment to Local Rule 16.1 posted (public comment deadline October 31), which would remove forclosure actions from the Standard Track and add Fair Labor Standards Act and False Claim Act cases; personal injury litigation; and civil rights cases other than prisoner civil rights
- EEOC: Second EEOC lawsuit filed directly challenging an employer-provided wellness program under the Americans with Disabilities Act on the grounds that employees were penalized (including payment of full health insurance premium compared with 25%) for refusing to complete health risk assessment and submit to biometric testing, which were “disability-related inquiries and medical examinations”
- Bangor Daily: Jury awards ex-Bangor mall beautician more than $100,000 in damages
- Bangor Daily: Judge considering sex assault lawsuit against Cherryfield businessman
Saturday, September 27, 2014
- EEOC: First of two lawsuits filed by EEOC alleging employer who fired worker because she was transgender violated Title VII because, consistent with a 2012 EEOC decision, firing someone because she does not conform to an employer’s expectations or stereotypes concerning how a person born a certain sex should live or look is discrimination because of sex
- First Circuit: In reversing on qualified immunity grounds $47,500 judgment for pretrial detainee who was housed in segregation unit after stabbing two guards and holding a nurse hostage (he was serving a sentence on an earlier crime when he attacked them), the court held that reasonable prison officials in these circumstances would not necessarily have understood that the continuing disciplinary sanction violated plaintiff’s constitutional right to substantive or procedural due process
- US District Court ME: The court dismissed FMLA complaint against State of Maine because claim under self-care provisions of FMLA (employee taking leave for her own medical condition as opposed to caring for a family member) are barred by Eleventh Amendment sovereign immunity, but denied motion to dismiss defamation and First Amendment claims brought by former Maine CDC Director who alleged that she was ordered to shred public documents that would have disclosed irregularities and possible illegal activity by the CDC
- MHRC: Third-Party Neutral Mediation Program rules amended to require parties to pay $200 each to participate in mediation, in order to sustain the program
- MHRC: October 6th Agenda and Consent Agenda posted
- HUD: $2.8 million compliance agreement reached with agency to retrofit 140 units as well as common areas in 22 properties to make them fully accessible to people with disabilities
Wednesday, September 24, 2014
- Seventh Circuit: The court upheld FMLA verdict for employee whose primary employer had only 33 employees but including “joint employer” resulted in FMLA coverage; the court also upheld $325,000 in attorney’s fees despite only $43,200 verdict, in light of defendant’s “blunderbuss” defense
- EEOC: Title VII interference suit filed over employer requirement that each prospective employee sign a mandatory arbitration agreement as a condition of employment stating that all employment-related claims–which would otherwise allow resort to the EEOC–shall be submitted to and determined exclusively by binding arbitration
Friday, September 19, 2014
- EEOC: Winter 2014 edition of Digest of Equal Employment Opportunity Law published
- EEOC: Suit filed under the Genetic Information Nondiscrimination Act against employer that required post-offer, pre-hire applicants to complete family medical history form that asked for any illnesses experienced by family members, including health conditions such as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer
- Law Court: Audio of recent oral arguments posted
- Fifth Circuit: In affirming denial of summary judgment on First Amendment claim on qualified immunity grounds, the court held that university art gallery director who was fired for telling a member of a U.S. Representative’s staff that he believed the Rep. was a “fear monger” was speaking as a citizen on a matter of public concern (not pursuant to his official duties) because spoke about concerns entirely unrelated to his job and from a perspective that did not depend on his job as a university employee, but rather emanated from his views as a citizen; therefore, reasonable officials in the defendants’ position should have known the speech was protected
- Portland Press Herald: Bar Harbor couple suing Portland police officer who arrested them
Tuesday, September 16, 2014
- EEOC: New guidance issued, “Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds,” discussing the most common dismissal mistakes made by federal agencies initially processing equal employment opportunity complaints brought by federal employees and applicants, which lead to a 1/3 reversal rate by the EEOC on appeal
- US Dept of Labor: Proposed rule would prohibit federal contractors from discharging or discriminating in any other way against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant
- US District Court ME: The court denied defendant’s motion for summary judgment on punitive damages claim despite fact that First Amendment forbids award of punitive damages for words spoken without actual malice on matters of public concern, where there was sufficient evidence from which a jury could reasonably find that defendant deliberately ignored evidence that called into question his published statements and that he relied on highly questionable sources
- First Circuit: The court granted summary judgment on inmates’ Eighth and Fourth Amendments, ADA, and Rehab Act claims arising out of prison’s practice of having inmates receive HIV medication in single doses at dispensing window rather than providing them with extended doses to be used in their cells, finding that inmates did not show a serious risk of serious harm under the Eighth Amendment; that, assuming the Fourth Amendment guaranteed that prisoners have at least a limited constitutional right against gratuitous disclosures of medical information, and that policy here resulted in inmates’ inadvertent and sporadic disclosure of their HIV status to other inmates while waiting in line at the window, the policy was reasonable based on its cost savings; and inmates did not establish ADA or Rehab Act claim because policy was motivated by cost savings and not HIV status
- HUD: Settlement announced in lending discrimination case alleging discrimination based on race and national origin (Native American), where bank denied loan because property was located on a Native American reservation (property was held in “fee simple,” meaning that the couple held the title to the property, without restriction, in the same way that land is generally held throughout the United States)
Friday, September 12, 2014
- Sixth Circuit: In reversing grant of summary judgment, the court held that Federal Tort Claims Act judgment bar (judgment under FTCA bars all other claims based on same subject matter) did not bar plaintiff’s Eighth Amendment claim because FTCA claim was dismissed based on lack of subject-matter jurisdiction so there was not a “judgment”
- US District Court ME: Magistrate Judge denied summary judgment on prisoner Eighth Amendment claim, finding sufficient evidence of deliberate indifference by jail’s medical providers when they failed to provide medical services that were reasonably appropriate in light of two medical request forms suggesting urine retention and significant pain when voiding
- US District Court ME: Magistrate Judge granted motion to amend to include additional party after deadline to amend in scheduling order where new party’s involvement was unclear prior to depositions
- US District Court ME: Summary judgment granted in employment discrimination claim where court found that employee failed to show that employer’s legitimate nondiscriminatory reason for termination was a pretext for race discrimination
- US District Court ME: Summary judgment granted in Whistleblower Protection Act claim where employee failed to show that employer’s legitimate nondiscriminatory reason was a pretext for whistleblower retaliation; court rejected employer’s argument, however, that summary judgment should be based on judicial estoppel for plaintiff’s failure to disclose whistleblower claim in bankruptcy proceeding
- EEOC: Lawsuit filed under ADA challenging employer practice of requiring employee to sign overbroad release as a part of fitness-for-duty examination
Tuesday, September 9, 2014
Wednesday, September 3, 2014
- First Circuit: The court affirmed summary judgment for employer on ADA retaliation and §1983 First Amendment claim because it found that plaintiff did not show that employer’s reason for her termination was a pretext or that her protected speech (the court assumed without deciding that complaints of disability discrimination are protected by both §1983 and the ADA) was a substantial or motivating factor in her termination
- EEOC: President Appoints Jenny R. Yang EEOC Chair
- EEOC: New guide published: Preserving Access to the Legal System: A Practical Guide to Providing Employees with Adequate Information about Their Rights under Federal Equal Employment Opportunity (EEO) Laws and Regulations
- MHRC: October 6th Agenda and Consent Agenda posted; all cases from September 8th Agenda moved to October
Friday, August 29, 2014
- MHRC: Arnold Clark has been named chair of the Commission
- Eleventh Circuit: In affirming $5,000 jury verdict and $100,000 in attorney’s fees on Fair Housing Act disability discrimination claim that condominium association unlawfully enforced its pet weight policy and demanded that condominium owner with PTSD remove his emotional support dog from his condominium, the court held, in part, that plaintiff met his burden of showing that his dog was a “necessary” accommodation because having the dog would affirmatively enhance his quality of life by ameliorating the effects of his disability, even though some other arrangement, such as having a lighter-weight dog permitted by the Association’s policy, might have similarly alleviated his symptoms
- Third Circuit: In reversing summary judgment for employer, the court found sufficient evidence to support FMLA interference claim where employer told employee that she needed full use of all ten fingers before she could be reinstated despite the fact that there was no essential function of her job that she could not perform, even though statement was made the day before employee’s FMLA leave was approved (employer argued that it could not have interfered with her FMLA rights before leave was approved)
- Ninth Circuit: The court held that FedEx drivers, although characterized as “independent contractors, were actually employees under California’s “right to control” test where they must wear FedEx uniforms, drive FedEx-approved vehicles, groom themselves according to FedEx’s appearance standards, and follow FedEx instructions on what packages to deliver, on what days, and at what times; even though they may operate multiple delivery routes and hire third parties to help perform their work, with FedEx’s consent
