Legal Updates
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
Tuesday, July 21, 2020
- First Circuit: The exemption in the the Federal Arbitration Act for “for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” encompasses the contracts of transportation workers who transport goods or people within the flow of interstate commerce, not simply those who physically cross state lines in the course of their work
- MHRC: Watch the live stream of the July 13th Maine Human Rights Commission Meeting
- MHRC: Minutes of July 13th meeting include that, as of July 1, the Commission can receive, investigate as necessary, and analyze reports of discrimination based on homelessness in Maine as a part of a two-year pilot program which will result in annual reporting to the Legislature
- Pierce Atwood: Jim Erwin and Katy Rand present one-hour webinar to restaurateurs and innkeepers on how to respond if an employee or customer is diagnosed with COVID
Saturday, July 11, 2020
- US Supreme Court: “Ministerial exception” shields two Catholic schools from liability for disability and age discrimination against two elementary school teachers
- Sixth Circuit: Plaintiff plausibly alleged that her abnormal pre-cancerous cells and genetic mutation that contributed to abnormal cell growth was a protected disability under the Americans with Disabilities Act, even thought a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA (plaintiff did not bring a claim under the Genetic Information Nondiscrimination Act)
- Law Court: oral arguments set for July 15th include Cum-18-445, which will decide whether Superior Court erred in ordering hospital in medical malpractice action to produce redacted medical records of fifty nonparty patients who had undergone procedures similar to the one plaintiff underwent
- MHRC: The Commission is accepting filings/submissions by e-mail (subject to three conditions) during coronavirus pandemic
- Maine DOL: Unemployment recipient work search waiver for workers temporarily laid off from their jobs, and who expect to return to them, now runs through September 5
Saturday, June 27, 2020
- US Supreme Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
- EEOC: Newly released data visualizations of previously existing enforcement data includes that Maine is tied with Idaho for having the lowest number of charge receipts per 10,000 population (.5) in FY 2019; and that nationally between FY 2015 and 2019 claims for sexual harassment increased by 10.1%
- US District Court ME: Summary judgment denied on disability discrimination claim that town unlawfully required psychiatric clearance before police officer returned to a light-duty position where town’s health provider who recommended the assessment may have only contemplated the need for the assessment if the officer were returning to full duty
- US District Court ME: Magistrate Judge recommended dismissal of Maine Human Rights Act claim against owner of business because he was not plaintiff’s “employer” (i.e., no individual liability); dismissal of part of Maine Whistleblowers’ Protection Act claim that plaintiff’s refusal to follow employer’s allegedly illegal directive was a “report” of illegal activity (subject to the lesser standard of only needing a reasonable belief of illegality rather than actual illegality); denial of dismissal of other aspect of WPA claim that refusal to provide employer-requested false statement to employer was WPA-protected activity because it was actually illegal fraud or fraud on the court; and dismissal as moot of § 631 claim for late production of personnel file where § 631 only provided injunctive relief–only the Maine Department of Labor may collect the up to $500 civil forfeiture for being late
- US District Court ME: Motion for leave to implead third party without explaining reason for delay denied where doing so would cause undue delay and prejudice plaintiff
- EEOC: Updated COVID-19 guidance states that the ADA does not allow employers to require antibody testing for employees to re-enter the workplace
- MHRC: August 10, 2020, Agenda and Consent Agenda posted
Saturday, June 13, 2020
- US District Court ME: Temporary restraining order for change in prison’s response to COVID-19 denied on claim by inmates alleging Eighth Amendment violations and violations of the Americans with Disabilities Act and the Rehabilitation Act who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19; court would instead move quickly with the request for a preliminary injunction
- EEOC: Updated guidance on COVID-19 includes (D.13) that “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure”
- US DOL: FAQ on COVID-19 includes that OSHA’s personal protective equipment standards do not require employers to provide cloth face coverings to workers
- Law Court: In reach and apply action, insurer was not liable for $428,071.64 negligence judgment under policy making insurer liable for damages “caused by an accident that involves a vehicle,” where insured drove intoxicated and delusional friend in truck covered by the policy to plaintiffs’ home where friend broke into home and caused property damage and personal injuries
- Law Court: Remote video oral argument on June 24th includes appeal in Ken-19-406, which will address whether incident in which father heard but did not see construction materials falling from truck and killing son meets the “contemporaneous perception” factor in a negligent infliction of emotional distress claim
- US District Court ME: Motion to dismiss Title VII and Maine Human Rights Act claim for failure to allege administrative exhaustion denied because Title VII contains no exhaustion requirement and, while the MHRA does, the better course was to allow plaintiff time to amend complaint to allege MHRA exhaustion
- US District Court ME: Motion by alleged survivor of sexual assault to proceed under an alias granted after applying Third Circuit multifactor test
- US District Court ME: Motion to dismiss § 1983 claims denied where former student who alleged he was sexually assaulted by teacher stated claims against school district and assistant principals under state-created danger and failure to train and supervise theories
- MHRC: Minutes of June 8th (Zoom) Commission meeting include that the renovation of 19 Union Station is complete and the Commission will move back on June 22
- EEOC: Volume 1 of the Fiscal Year 2020 Digest of EEO Law includes the EEOC’s Annual Compilation Issue, summarizing noteworthy federal sector decisions from fiscal year 2019
Friday, May 22, 2020
- EEOC: Updated guidance on COVID-19 and non-discrimination laws includes answer to the questions: G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?
- MHRC: Minutes from the Commission’s May 4th meeting include description that the Commission continues to operate and investigate cases despite COVID-19, with adjustments made to operate mostly electronically/remotely and with many extensions of time and accommodations; staff mostly working at home; someone being in the office part of every day to receive mail and packages and scan them to other staffers for handling; and the Commission holding off on issuing administrative dismissals as much as possible due to concerns about limited court access during the pandemic
- US District Court ME: Mandamus action (and accompanying declaratory judgment action) against district attorney for due process violation dismissed as untimely where 30-day time limit in Maine Rule of Civil Procedure 80B applied because district attorney had twice refused to hold a hearing on plaintiff’s request (making it a “refusal to act” rather than a “failure to act” scenario, the latter of which would have allowed six months to file from the failure to act instead of 30 days)
- US District Court ME: Summary judgment denied on Maine Whistleblowers’ Protection Act claim where communication channels between recipients of plaintiff’s WPA-protected complaints and decision makers justified inference that decision makers knew of complaints; and close proximity of the last of a long string of complaints and plaintiff’s termination, together with showing of pretext, sufficiently established causal connection between complaints and termination
- US District Court ME: Motion for reconsideration denied where decision to deny defendant’s attorney’s fee application was based on Local Rule 7(a), which does not entitle a fee applicant to a bifurcated fee-shifting procedure that addresses the merits first and the lodestar analysis second; despite Fed. R. Civ. P. 54(d)(2)(C), which provides that a court may “decide issues of liability for fees before receiving submissions on the value of services”
- US District Court ME: Temporary restraining order to prevent former employee from violating his employment agreement by possessing, using, or disclosing former employer’s confidential information denied where, although former employer was likely to succeed on the merits, it did not establish that, absent temporary injunctive relief, it would suffer irreparable harm
- US District Court ME: “While additional steps arguably could have been taken to obtain personal service, the likelihood that [defendant] received actual notice of the summons and complaint as a result of the steps already taken by [plaintiff] justifies service by publication and alternative means in this instance.”
- First Circuit: Summary judgment affirmed for school on disability and age discrimination claims where, in part, requiring school teacher to have a psychiatric exam was justified by its concern that teacher might commit suicide, which would have adversely affected both the young children and school staff
- First Circuit: Summary judgment affirmed for employer on age discrimination claim where, although fired employee satisfied his burden to make out a prima facie case, he could not disprove employer’s legitimate, nondiscriminatory reason for its decision to terminate employee and hire another for a new, consolidated post
- First Circuit: Summary judgment for employer affirmed, in part, on claim that plaintiff was not afforded 21 days to consider release agreement under Older Workers Benefit Protection Act, where argument was unsupported that plaintiff was told he would only have a day or two to sign it
Tuesday, May 5, 2020
- US District Court ME: Interpreting the attorney-client privilege under federal common law, Magistrate Judge held that employer would waive the privilege by offering evidence that it consulted with its attorney prior to deciding to terminate employee: “[W]hen Defendants reveal that the Hospital consulted counsel before Plaintiff’s employment was terminated, the implication is that counsel did not perceive a legal impediment to the termination (i.e., Plaintiff’s conduct did not constitute concerted, protected activity). Defendants’ communication with counsel would thus be in issue for Defendants’ benefit. Plaintiff should have access to the communications to assess whether a challenge to the implication is warranted.”
- First Circuit: Dismissal affirmed on 1983 First Amendment whistleblower claim where plaintiff’s speech was not on a matter of public concern and, even if it were, he failed to plead sufficient facts that it was a substantial or motivating factor in the adverse decisions taken against him
Friday, April 24, 2020
- First Circuit: Summary judgment affirmed for employer on Americans with Disabilities Act claim because, on termination claim, former employee purportedly terminated for violating conduct rule failed to show that she was treated differently from others who were similarly situated; and, on failure to accommodate claim, noting that a “requested accommodation that simply excuses past misconduct is unreasonable as a matter of law [and her requests] would have required forgiveness of her fireable misconduct and a fresh start,” the court held that she nevertheless failed to show that her requested accommodations would have been effective to allow her perform the essential functions of her job
- First Circuit: Summary judgment affirmed for employer on Title VII failure to rehire claim based on race and retaliation
- EEOC: Updated COVID-19 and non-discrimination guidance includes (A.6) that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus”
