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.
Monday, March 23, 2020
- MDOL: Unemployment Insurance FAQs Regarding COVID-19 answers questions about Governor Mills’ COVID-19 emergency legislation (LD 2167), which was passed by the Legislature on March 17 and is effective immediately, including that employees laid off by businesses being temporarily partially or fully closed as a result of the impact of the COVID-19 virus are eligible for Unemployment benefits even though they are not looking for work, provided they expect to return to work once the business reopens; employees whose work hours are temporarily reduced in lieu of layoffs are eligible for Unemployment benefits to help offset their loss of income; employees who are out of work due to child care and school closures should apply for Unemployment and determinations will be made on a case by case basis; employers’ continuing to provide health insurance for laid off workers will not impact their receipt of Unemployment benefits; and benefits paid under the emergency legislation will not be charged against the experience rating record of any employer
- US DOL: Guidance documents describe the Families First Coronavirus Response Act, which includes that covered employers must provide (1) two weeks of paid leave for employees who are quarantined, experiencing COVID-19 symptoms, and seeking a medical diagnosis; caring for an individual subject to quarantine; or caring for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19; and (2) ten additional weeks of paid leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (although small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern)
- EEOC: Updated guidance titled, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” includes that, based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard; an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job; employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19, but the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements; an employer may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons; and an employer may require employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) during a pandemic, however, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship
Saturday, March 14, 2020
- US Supreme Court: In concurrence to certiorari denial of Title VII religious accommodation case, three Justices (Alito, Thomas, Gorsuch) agreed with the Solicitor General’s brief that “we should reconsider the proposition, endorsed by the opinion in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977), that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden[,] Hardison’s reading does not represent the most likely interpretation of the statutory term ‘undue hardship[, and] we should grant review in an appropriate case to consider whether Hardison’s interpretation should be overruled”
- First Circuit: In affirming summary judgment for defendant police officers on Fourth Amendment claim arising out of their seizure of plaintiff and his guns without a warrant, the court, as a matter of first impression, held that the “community caretaking function” exception to the warrant requirement extends to private premises (including homes) in addition to motor vehicles (as previously limited)
- MHRC: April 6th Commission Meeting Agenda and Consent Agenda posted
Sunday, March 1, 2020
- Ninth Circuit: En Banc decision holds that a female employee’s prior rate of pay cannot serve as an affirmative defense to an Equal Pay Act claim
- US District Court ME: Plaintiff may proceed under a pseudonym after meeting the Third Circuit’s multifactor test (in the absence of one from the Supreme Court or First Circuit)
- US District Court ME: No negligence action existed under Maine law against pawn shop that allegedly sold BB rifle to visibly intoxicated customer who was later shot and killed by police
- Law Court: Amicus briefs sought on issue whether medical records of nonparties are discoverable in a civil action if the records are redacted to remove the information that is understood to identify patients
Saturday, February 15, 2020
- Law Court: The Maine Whistleblowers’ Protection Act, which prohibits retaliation, in part, for reporting to an employer “what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual,” did not protect nursing director at a psychiatric facility who complained that staffing decisions compromised patient and employee safety because the safety issue was already known to his supervisor; and there was no causal connection between his termination and his other, protected reporting
- Maine Legislature: February 19th hearing before Judiciary Committee will address LD 2087, which would largely prohibit an employer from requesting criminal history record information on an initial employee application form
- First Circuit: Summary judgment granted for university on denied tenure professor’s Title VII sex discrimination claim because male comparators who were granted tenure were not similarly situated (they had different subfields from plaintiff) and there was inadequate evidence of pretext; and on Title IX retaliation claim (assuming, without deciding, that there is such a claim) because, under “cat’s paw” theory, individual who professor alleged tainted the tenure denial decision with retaliatory animus was “one of many voices in a chorus cautioning” against her tenure
- First Circuit: Summary judgment granted for town on former fire chief’s Age Discrimination in Employment Act constructive discharge because of age and retaliation claims
- US District Court ME: Summary judgment granted to law enforcement officers on qualified immunity grounds because the “state-created danger doctrine” was not clearly established at the time officers violated plaintiffs’ substantive due process rights
- EEOC: Fiscal Year 2019 Annual Performance Report includes that it has reduced its inventory of pending private sector charges by 12.1 percent, the lowest in 13 years; and its legal staff resolved 173 merit lawsuits
Wednesday, January 29, 2020
- HUD: New guidance issued titled, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act”
- Fifth Circuit: A corporation does not need a racial identity to have standing to assert a § 1981 racial discrimination claim (finding staffing company had standing where its contract was terminated because it provided an African-American worker to its client instead of the Hispanic workers the client requested)
- Maine Legislature: Public hearing scheduled for January 29th before the Labor and Housing Committee on LD 2015, “An Act To Provide for Leave from Work for Victims of Domestic Violence, Sexual Assault or Stalking”
- Maine Legislature: Public hearing scheduled for February 4th before the Judiciary Committee on LD 1859, which would permit law students who are enrolled in and have completed 3 or more full semesters or the equivalent at a law school accredited by the American Bar Association to appear in court on behalf of the State or under the supervision of an approved organization providing legal services to the indigent
- Law Court: Motion to dismiss should be granted on various tort claims against employee of private law firm and law firm itself in light of employee immunity provision of the Maine Tort Claims Act, where complaint established that they were hired to act as an agent of a governmental entity to provide a report on a specific personnel matter and performed a governmental function consistent with the governmental entity’s contractual and legal obligations
- First Circuit: Summary judgment affirmed for government on former federal employee’s sex and age discrimination claims where there was no genuine issue of material disputed fact as to whether the government’s asserted nondiscriminatory reason for taking the adverse actions that it did was pretextual; comment by supervisor, “You are 64 no 65,” was insufficient to show age discrimination; and on Title VII and ADEA retaliation claims arising out of “EEO activity” being written on office notice board because, while the writing may constitute an adverse employment action by “chilling” a reasonable employee from further protected activity, it was unclear who wrote it and, therefore, there was no evidence that the writing was causally connected to protected conduct
- First Circuit: Summary judgment affirmed on Age Discrimination in Employment Act claim because there was insufficient evidence that employer’s asserted non-discriminatory reason for termination (poor performance) was a pretext; and district court did not abuse discretion in dismissing supplemental state law claims despite the fact that discovery was complete and the action had been pending for three years
- US DOJ: Monthly blog will commemorate the 30th Anniversary of the Americans with Disabilities Act
- HUD: Proposed rule “would recognize additional sets of standards and model building code editions that, when followed in the design and construction of new multifamily housing, will ensure compliance with the accessibility requirements of the Fair Housing Act”
- EEOC: Fiscal Year 2019 Enforcement and Litigation Data data show that retaliation continues to be the most frequently filed charge with the agency, followed by disability, race and sex; and that the EEOC received 7,514 sexual harassment charges – 10.3 percent of all charges, and an 1.2 percent decrease from FY 2018
- MHRC: Minutes of January 27th meeting include that Edward David has been nominated to become a Commissioner; that LD 1703, “An Act To Improve Consistency within the Maine Human Rights Act,” which had been passed but waiting Governor action, has been recalled to the Legislature for amendment; and that the Commission expects to move back to its usual offices at 19 Union Street in Augusta in early May
- MHRC: March 2nd Agenda and Consent Agenda posted
- US Courts: Video seminar addresses “How Interpreters Aid Access to Justice”
Wednesday, January 15, 2020
- First Circuit: Amendments to Local Rules and Internal Operating Procedures were effective January 13, 2020
- Maine Superior Court: Following bench trial on various claims arising out of breakup of windows and siding company, the court ruled against plaintiff on all of his claims (other than declaratory relief) and against defendants on all of their counterclaims
- US Courts: Success of high school student Civil Discourse program in the United States District Court for the District of Maine referenced in post, “Federal Judges Help Students Learn Civility Skills”
Saturday, January 4, 2020
- 11th Circuit: Congress validly abrogated several Florida entities and officials’ Eleventh Amendment immunity with respect to claims under Title II of the Americans with Disabilities Act that defendants failed to provide captioning for live and archived videos of Florida legislative proceedings for people who are deaf and hard of hearing
- Law Court: Summary judgment for employer on Maine Human Rights Act sexual harassment claim affirmed because single comment by supervisor to plaintiff that she “could not tolerate talking with him and that he reminded her of her former husband” was insufficient to create a hostile work environment; on Whistleblowers’ Protection Act claim because–despite evidence that complaints about him that led to his termination were incorrect and temporal proximity between protected activity and his termination–it remained established that employer fired plaintiff based on the investigated reports (whether true or false); and on sex discrimination termination claim in light of employer’s established non-discriminatory reason for termination and lack of evidence that supervisor (who made the arguably sex-based comment about her former husband) played any role in the decision-making process that led to plaintiff’s termination
- Law Court: Summary judgment for care services provider affirmed on nurse’s defamation claim where allegedly defamatory statements were conditionally privileged and there was insufficient evidence (necessary to defeat the privilege) that statements were made with knowledge that they were untrue, reckless disregard of their truth or falsity, or solely out of ill will toward nurse
- MHRC: January 27th Commission Meeting Agenda posted
Saturday, December 21, 2019
- US Supreme Court: Cert granted to decide the following question presented: “Whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions.”
- Maine Superior Court: Following $20,000 compensatory damages award on plaintiff’s Maine Whistleblowers’ Protection Act claim, the court awarded only $9,975 in back pay over a three-year period (and no reinstatement or front pay) because plaintiff had failed to exercise reasonable diligence to find alternative work where she had not applied to any advertised and open positions
- Maine Superior Court: Summary judgment granted on Maine Human Rights Act disability employment discrimination claim where there was insufficient evidence that plaintiff had requested an accommodation for her disability in her original position (the court disregarded her affidavit stating she had done so because, while it was not clearly contradictory of her deposition testimony, it provided information that had been omitted from her interrogatory responses); she was unable to perform an essential function of a subsequent job; and it was not an adverse job action for her employer to then refuse to allow her to rescind her resignation from her first position.
- MHRC: Minutes of the Commission’s December 16th meeting include that a new Investigator has been hired and the Commission expects to move back into its former offices at 19 Union Street in March or April
Thursday, December 12, 2019
- Second Circuit: “[T]o establish a prima facie pay discrimination claim under Title VII, a plaintiff need not first establish an [Equal Pay Act] violation–that is, that she performed equal work but received unequal pay. Rather, all Title VII requires a plaintiff to prove is that her employer’discriminated against her with respect to her compensation because of her sex.”
- Second Circuit: Joining the Seventh Circuit (the only other to address the issue of landlord liability for failing to prevent tenant-on-tenant harassment), the court held that the Fair Housing Act imposes liability on a landlord who refuses “to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues”
- First Circuit: Summary judgment for police officers reversed on unlawful search and seizure claim where there was sufficient evidence that facially valid warrant was invalidly obtained; and on false arrest claim where “anyone aware of the deficiencies in the warrant application would know (or recklessly disregard the fact that) there was no probable cause to arrest”; but affirmed on malicious prosecution claim because plaintiff could not show that criminal proceedings terminated in his favor (district attorney dismissed the charges because a key witness died, not in a way that implied plaintiff’s innocence)
- MHRC: December 16th Agenda and Consent Agenda posted
Wednesday, November 27, 2019
- Maine Workers’ Comp Appellate Division: Administrative law judge’s decision that former employee provided timely notice of her “gradual injury” (defined as “a single injury caused by repeated, cumulative trauma without any sudden incapacitating event”) vacated and remanded for further consideration where ALJ had not properly determined the start of the 30-day notice period, which is the later of 1) the date the injury manifested itself or 2) the date of the employee’s awareness of the compensable nature of the injury
- US District Court ME: Federal False Claims Act retaliation complaint dismissed where court found no plausible allegation of protected activity of reporting fraud on the government where employee complained that employer had, “engaged in a widespread practice of referring all MaineCare patients who were referred to physical therapy for the maximum number of physical therapy appointments allowed by MaineCare at Seaport’s in-house physical therapy department, irrespective of medical need, … and subsequently billing the MaineCare Medicaid program for those appointments”
- MHRC: Minutes of November 18th Commission meeting include hiring announcement of new investigator and paralegal
