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.
Tuesday, January 19, 2021
- EEOC: Compliance Manual Section on Religious Discrimination revised January 15, 2021
- Ninth Circuit: Divided panel holds under the Family and Medical Leave Act of 1993, “[w]hen an employee working a ‘one week on, one week off’ schedule takes continuous leave, an employer may count both the on and off weeks against the employee’s FMLA leave entitlement”
- First Circuit: Maine statute, 26 M.R.S. § 626, which states that “[a]n employee leaving employment must be paid in full no later than the employee’s next established payday. . . . [and w]henever the terms of employment or the employer’s established practice includes provisions for paid vacations, vacation pay on cessation of employment has the same status as wages earned,” does not create a substantive right to payment for unused vacation time at the cessation of employment
- First Circuit: Summary judgment affirmed on Fourth Amendment claim arising out of fatal shooting of criminal suspect where use of force by police officer was objectively reasonable and officer was entitled to qualified immunity
- Law Court: Interlocutory appeal from denial of of motion to dismiss medical malpractice claim denied where appeal would require court to undertake a complex application of state and federal laws to the facts presented in order to determine whether plaintiff’s malpractice claims are precluded
- MHRC: Video public service announcement posted titled, “Covid19 and Discrimination”
- MHRC: Minutes of January 11, 2021, Commission meeting include that Governor Mills’ Biennial Budget does not propose personnel cuts to the Commission
Thursday, December 31, 2020
- Maine Supreme Judicial Court: Effective December 14th, all Maine courts began accepting the filing by email of certain documents in all cases, including in civil, criminal, juvenile, family matters, and appellate cases
- First Circuit: In affirming $762,525 jury verdict for plaintiff on False Claims Act (“FCA”) retaliation claim, the court held as a matter of first impression that the “but for” causation standard applies to FCA claims, but the trial judge did not commit plain error by giving a “substantial motivating cause” jury instruction without objection by defendant at trial
- First Circuit: In granting summary judgment for employer, court, on disability employment termination claim, focused on the lack of discriminatory animus, despite an apparent showing of pretext; and on disability harassment claim, found that the two timely employer actions that plaintiff claimed anchored his otherwise untimely hostile work environment claim did not do so because they were not substantially related to the prior incidents and were not based on disability
- US Supreme Court: “Appropriate relief” available under the Religious Freedom Restoration Act of 1993 includes claims for money damages against Government officials in their individual capacities
- MHRC: December 14th meeting minutes include that the Commission has submitted an agency-initiated bill to the Maine Legislature that mirrors LD 1703, An Act To Improve Consistency within the Maine Human Rights Act, from the 129th Legislature and died in spring 2020 during the pandemic shortened session (LD 1703 would have added familial status as a protected class in employment; included adult family members dependent for care in the definition of “familial status”; added age as a protected class in public accommodations; provided that public entities cannot discriminate on the basis of protected class; clarified the scope of the Maine Human Rights Act’s education provisions; clarifed the protections provided to pregnant persons in employment; and clarified that the sexual orientation provisions in the Act extend to gender identity)
- EEOC: New section K to technical assistance document on COVID-19 and federal non-discrimination laws addresses “ADA and Title VII Issues Regarding Mandatory Vaccinations,” including, if an employer requires vaccinations when they are available, how it should respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability or a sincerely-held religious belief
Monday, December 7, 2020
- First Circuit: Dismissal affirmed of § 1983 suit seeking retrospective relief by state employees who were not members of union but were forced to pay “agency fees” to it prior to the United States Supreme Court’s 2018 decision holding that such arrangements violate the First Amendment
- First Circuit: Judgment as a matter of law for employer affirmed on age discrimination claim where alleged comparator employees were not similarly situated and plaintiff failed to offer sufficient evidence of pretext for age discrimination
- EEOC: Interactive tool launched that visualizes aggregate data from employer EEO-1 reports
Saturday, November 21, 2020
- First Circuit: Reversing summary judgment for police officers on qualified immunity grounds, court held that–despite this being the first time the First Circuit joined nine other circuits in recognizing a theory of substantive due process liability when officers fail to protect plaintiffs from danger created or enhanced by their affirmative acts–the widespread acceptance of this so-called state-created danger theory was sufficiently clearly established; and a circuit split did not alter that conclusion because the defendants could not have reasonably believed that the First Circuit would follow the minority approach
- First Circuit: Harvard’s race-conscious admissions program does not violate Title VI of the Civil Rights Act of 1964
- Maine Supreme Judicial Court: Effective November 30, 2020, eFiling will be mandatory in the Bangor District Court, Penobscot County Superior Court, and the statewide Business and Consumer Docket for attorneys and self-represented parties filing more than six non-emergency cases in a calendar year
- US District Court ME: Effective November 17, 2020, the Clerks’s Office is closed to in-person visits due to COVID-19
- MHRC: November 16th Commission Meeting minutes posted
Thursday, November 5, 2020
- Maine Supreme Judicial Court: Statement of Acting Chief Justice includes that civil jury trials will not be held until well into 2021, if not later.
- EEOC: Final procedural regulations for issuing guidance, effective December 2, 2020, make guidance documents readily available to the public; ensure that guidance will be treated as non-binding; require a notice and public comment period for significant guidance; and establish a public petition process for the issuance, amendment, or repeal of guidance
- Tenth Circuit: En banc decision held that an adverse employment action is not a requisite element of an Americans with Disabilities Act failure-to-accommodate claim (the First Circuit has already so held)
- US District Court ME: Federal employees do not have a private right of action under the Family and Medical Leave Act
- Law Court: Separation of powers does not prevent a court from enjoining the Maine Department of Corrections from violating inmates’ due process rights by placing or keeping prisoners in segregation solely for the purpose of coercing an admission to wrongdoing; or from holding inmates in segregation without developing, communicating, and applying objective criteria for the inmate to obtain release from segregation
- US District Court ME: The court denied school district’s motion to dismiss Title IX, § 1983, and state tort claims against it arising out of sexual harassment former high school student alleged the school principal committed against her
- US District Court ME: Court COVID-19 entrance protocols updated
- MHRC: Minutes of October 19th meeting include that the Commission will be submitting during the Maine Legislature’s first biennial term that commences on December 2, 2020, at least one proposal to pursue the MHRA amendments that were approved in the last Legislative session, returned to the Legislature by the Governor, and left incomplete due to the Legislature’s untimely closure due to COVID-19
Sunday, October 18, 2020
- EEOC: Proposed conciliation rule (comments due 11/9/2020) would require the EEOC to provide respondents with certain information supporting its reasonable cause finding during conciliation if it had not previously done so
- EEOC: Procedural rule amendments were adopted regarding the digital transmission of documents and updating no-cause determination procedures; and the EEOC Dismissal and Notice of Rights letter after a no-reasonable-cause finding will now include language that the finding “does not mean the claims have no merit” and “does not certify that the respondent is in compliance with the statute”
- First Circuit: In reversing summary judgment for police chief on § 1983 claims arising out alleged sexual abuse by subordinate officer, the court clarified the federal “discovery rule,” under which an otherwise expired statute of limitations may be extended; and held that plaintiff’s voluntary dismissal as untimely of claim against the subordinate officer did not compel dismissal of supervisory and municipal liability claims premised on that officer’s alleged constitutional violations
- First Circuit: Summary judgment for employer affirmed (over dissent) on racial discrimination and retaliation claims brought by black employee who was twice denied promotions to two supervisor positions
- Law Court: Plaza to police department was an appurtenance to a public building and failure to treat snow and ice fell within public building maintenance exception to Maine Tort Claims Act
- US District Court ME: Motion to dismiss denied on Due Process and state tort claims against high-school social worker brought by former student allegedly sexually harassed by school principal
- MHRC: October 19th Commission Meeting Agenda posted
- EEOC: Jocelyn Samuels sworn in as EEOC Commissioner (following 54-42 Senate vote)
Thursday, October 1, 2020
- Maine Supreme Judicial Court: Planned October 5th rollout of the Maine eCourts system in the Bangor courts and BCD postponed until further notice due to a security breach at the eFiling vendor
- Law Court: The physician-patient privilege in Maine Rule of Evidence 503 prevents the disclosure during discovery of even redacted (meaning patient identifying information has been removed) and relevant medical records of a nonparty patient who has not waived the privilege
- Law Court: A bystander may recover for a claim of negligent infliction of emotional distress when that bystander hears (as opposed to sees) an accident occur and then in its immediate aftermath witnesses a close relative severely injured
- Law Court: In upholding legal malpractice jury verdict for plaintiff, the court clarified the “modified” or “failure to plead” proximate cause standard
- US District Court ME: Magistrate Judge granted defendant’s motion to stay court action against jail officials in claim arising out of inmate’s death until state court determined the officials’ coverage under Maine Health Security Act
- MHRC: Minutes of September 14th meeting include that the Commission submitted a budget curtailment of almost $100,000 in response to the Governor’s requirement that state agencies cut 10% of General Fund monies
- EEOC: Keith E. Sonderling sworn in as Commissioner and Vice Chair for a term expiring July 1, 2024, following a 52-41 Senate vote
Tuesday, September 15, 2020
- Maine Department of Labor: Rules implementing new Maine paid leave law, effective January 1, 2021, include clarification that part-time and per diem employees must be included in calculating the 10-employee threshold for employer coverage under the law
- Fourth Circuit: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes.”
- Seventh Circuit: Joining the Ninth Circuit and departing from the Tenth, the court held that the First Amendment “ministerial employee” exception to Title VII liability bars claims by ministerial employees challenging tangible employment actions but not hostile environment discrimination claims
- Maine Supreme Judicial Court: Revision to COVID-19 Phased Management Plan states that Phase 5, which includes jury trials, will commence November 9, 2020
- EEOC: Updated guidance on COVID-19 (D.15) answers “no” to the question, “Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?”
- MHRC: Link to September 14, 2020, Commission Zoom Meeting posted
Sunday, August 23, 2020
- First Circuit: District court erred when it instructed the jury that, for a disabled employee to make out a failure-to-accommodate claim, he must demonstrate that he needed an accommodation to perform the essential functions of his job, meaning the employee must demonstrate that he could not perform the essential functions of his job without accommodation; rather, an “employee who can, with some difficulty, perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation”
- Maine Supreme Judicial Court: Maine Rules of Electronic Court Systems promulgated, which set forth the standards for access to electronic court records and efiling processes available through Maine eCourts, the Judicial Branch’s new online court case management and eFiling system, which will be implemented on October 5, 2020 for most new and pending civil cases and family matters in the Bangor District Court and Penobscot County Superior Court as well as the statewide Business Consumer Docket
- Law Court: When a final judgment is entered in a subsidiary Probate Court docket, the time to appeal that judgment pursuant to M.R. App. P. 2B(c) begins to run even if there are other pending proceedings involving the same estate or the estate has yet to be fully administered
- First Circuit: Preliminary injunction prohibiting public high school from suspending student who posted sticky note on mirror in girls’ bathroom that stated “THERE’S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS” affirmed because the school did not show that the restriction on protected speech was justified as bullying under the school’s policies
- First Circuit: Dismissal of Title IX sexual harassment claim reversed where student plausibly alleged that school failed to protect her from subsequent harassment by older students after she reported to the school that a 17-year-old student had sex with her on school grounds when she was 13 years old
- First Circuit: Denial of motion for judgment as a matter of law following $78,000 plaintiff’s verdict affirmed; there was sufficient evidence for a reasonable jury to find that the three defendant troopers reached an agreement to deprive plaintiff of his Fourth Amendment rights and that one carried out that deprivation by using excessive force
- EEOC: Charge closure documents no longer suspended because of the COVID-19 pandemic
- EEOC: Two new technical assistance documents released that address concerns about the employment provisions of the Americans with Disabilities Act and the opioid epidemic
- EEOC: Newest edition of the federal sector Digest of Equal Employment Opportunity Law released
- MHRC: Minutes from August 10th Commission Meeting include that the Governor’s appointment for a new Commissioner for the seat held by Chair Arnold Clark has been withdrawn and the Commission is preparing proposals to address the Governor’s requirement that all state agencies cut 10% of General Fund monies in their budgets
Wednesday, July 29, 2020
- 10th Circuit: Sex-plus-age claims are cognizable under Title VII (the first circuit to so hold)
- US District Court ME: Motion to dismiss age and sex employment discrimination claims denied where factual allegations in complaint made out a prima facie case and therefore met the plausible claim standard
