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, March 14, 2023
- US District Court ME: Associational discrimination claims are viable under Title VII provision, 42 U.S.C. § 2000e-2(m), even absent discrimination because of plaintiff’s own protected class; and individuals may be liable for retaliation or interference under the Maine Human Rights Act, 5 M.R.S. § 4633, despite the Law Court’s holding in Fuhrmann v. Staples Office Superstore East, Inc., that individual supervisors may not be held liable for employment discrimination
- EEOC: What You Should Know About the Pregnant Workers Fairness Act describes the newly enacted federal law, effective June 27, 2023, which requires reasonable accommodations to covered workers’ known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer an undue hardship
- US Supreme Court: Certiorari granted in Groff v. DeJoy, to decide 1) whether the Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, and 2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself
- Maine Legislature: Public hearing scheduled before the Judiciary Committee on March 21st on LD 960, which would prevent the caps on compensatory and punitive damages in the Maine Human Rights Act from being combined with the caps in other laws (such as Title VII), and would prevent the caps from being waived if an employer fails to raise them in its answer
- Maine Legislature: Public hearing scheduled before the Judiciary Committee on March 21st on LD 967, which would prohibit the Maine Human Rights Commission from providing any type of assistance to a complainant in a civil action after a no-reasonable-grounds finding
- Maine Legislature: Public hearing scheduled before the Judiciary Committee on March 21st on LD 1001, which would allow the Maine Human Rights Commission to issue a right-to-sue letter to a complainant without a request from the complainant
- Maine Legislature: Public hearing scheduled before the Labor and Housing Committee on March 16th on LD 891, which would require state agencies, including the University of Maine System, to provide written notice prior to suspending an employee without pay or dismissing an employee and give the employee an opportunity to meet with the employer prior to suspension or dismissal
- US DOL WHD: The Wage and Hour Division describes the newly enacted federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), effective April 28, 2023, which extends to more nursing employees the rights to receive break time to pump and a private place to pump at work
- EEOC: Comprehensive technical assistance document, Hearing Disabilities in the Workplace and the Americans with Disabilities Act, which was added to the EEOC’s series of question-and-answer documents addressing particular disabilities in the workplace, includes, in part, a recital of the different types of reasonable accommodations applicants or employees with hearing disabilities may need
- NLRB: Board decision reversed two earlier Board decisions and held that severance agreements with broad nondisparagement and confidentiality provisions violated Section 8(a)(1) of the National Labor Relations Act
- US DOJ: The Department’s updated Americans with Disabilities Act website added a featured topic for Opioid Use Disorder
- US DOL WHD: Administrator’s Interpretation of the Family and Medical Leave Act clarifies that the age of a son or daughter at the onset of a disability is not relevant in determining a parent’s entitlement to FMLA leave
- US District Court ME: Motion to dismiss ADA associational discrimination complaint brought by employee with ill parents denied where it was plausibly alleged that the adverse employment actions experienced by plaintiff were motivated by unfounded stereotypes and assumptions that plaintiff would miss work in order to care for her parents, although it was also possible that they were based on the legitimate conclusion that she was actually distracted and/or unable to meet the job requirements
- US District Court ME: Summary judgment denied on ADA and MHRA punitive damages claims where a reasonable jury could find that defendant acted with reckless disregard to plaintiff’s rights because, in part, “there is an extensive body of law on the issue such that employers should know not to terminate employees due to their disability or retaliate against them for complaining of violations of the law”
- US District Court ME: Motion to dismiss complaint by surgeon of Greek Cypriot lineage denied where there was an “air of artificiality” in employer’s argument that § 1981 claim was based on negative attitudes toward her because she was not born in the United States and/or her accent rather than any ancestral or ethnic characteristic per se; allegedly unlawful medical examination could be probative of disability discrimination claim despite argument that it should be dismissed as a freestanding claim; and equal pay claim was based on more than just “information and belief”
- US District Court ME: Magistrate Judge raised issue of whether an ADA plaintiff who is eligible for benefits because he is unable to perform the essential functions of his position may nevertheless be a “qualified individual” entitled to bring an ADA claim; denied summary judgment on plaintiff’s claim that he was denied a reasonable accommodation of being allowed to work remotely where there was no evidence that plaintiff’s performance suffered during the COVID-19 pandemic when he was allowed to do so; but granted summary judgment on unlawful termination claim where the uncontroverted evidence showed that plaintiff’s position was eliminated as a result of a general reduction in force following a merger
- First Circuit: Summary judgment for employer affirmed on former police officer’s Title VII termination claim where plaintiff’s comparators shared one but not both qualities employer gave as reasons for plaintiff’s termination (violent behavior and lying about it)
- MHRC: March 20th Commission Meeting Agenda and Consent Agenda posted
Thursday, December 22, 2022
- MHRC: Effective 12/10/22, the Maine Human Rights Commission amended its Employment Regulations to, in part, define “discriminate” to include “harassment,” which in turn is newly defined to include, in part, conduct constituting an assault as defined by Title 17-A, section 207; extend the newly added “traits associated with race” protections in the Maine Human Rights Act to “traits associated with protected class status,” including “protected-class related body modifications”; add a definition of “reasonable accommodation” applicable to other protected class statuses than disability; expand on the definition of “sexual orientation” to include, a person’s “pattern of sexual, emotional, or romantic attraction to others”; add to the list of unlawful pre-employment inquiries questions about household composition, gender-affirming physical and/or behavioral health care, compensation history, history of arrests, and hair style/appearance when the hair style/appearance is associated with the applicant’s protected class status; clarify that the prohibition on employers asking members of a protected class questions that are not asked of others includes asking older applicants how long they expect to remain in the workforce if the employer does not ask the same question of younger applicants; add that it is “unlawful to discriminate against a person because that person has terminated their pregnancy”; clarify that, with respect to religious accommodations and conflicting work schedules, “[i]In some instances, the employer may have the obligation to attempt to secure a substitute for the employee”; list examples of reasonable accommodations applicable to gender identity or gender expression of allowing employees to go by the name of their choosing rather than their legal names while in the workplace, providing gender-neutral/nongendered restrooms, and modifying any uniform or dress code requirements to allow employees to dress in accordance with their gender identity, and clarify that undue hardship cannot be established by asserting an accommodation would make others uncomfortable; include a new section on familial status discrimination; include a new section on individuals who have been issued orders of protection from abuse; clarify that discrimination based on color “includes discrimination based on shades of color, such as discrimination by individuals of the same race who have different pigmentation”; add to the list of invalid bona fide occupational qualification defenses that customers will be uncomfortable with a transgender salesperson, or that a person for whom English is not their primary language will be too difficult for others to understand; and remove the preservation of personnel records provision
- MHRC: Effective 12/10/22, the Maine Human Rights Commission amended its Procedural Rule to, in part, allow for electronic filing of complaints; specify the grounds and procedure for requesting reconsideration of the Executive Director’s administrative dismissal decisions; expand the Commissioner conflict of interest provisions; extend from 10 to 21 days the time within which a respondent will be notified of a complaint; make it a condition of the Commission’s third-party neutral mediation program that the terms of settlement be provided to the Executive Director who may share them with the Equal Employment Opportunity Commission or the Department of Housing and Urban Development in dual-filed cases; make providing Commission submissions to the opposing party mandatory; specify that a late submission may be considered if the investigator determines that it could change the investigator’s recommended finding(s) or it appears to Commission Counsel that the late-submitted information changes the legal sufficiency of the report; required five days advance notice of any visual/illustrative aids used during a Commission meeting; make tie votes by the Commission result in the finding recommended by the Investigator’s Report (so a majority vote may not be required for a reasonable grounds decision)
- MHRC: Effective 12/10/22, the Maine Human Rights Commission amended its Public Accommodation Regulations
- MHRC: Effective 12/10/22, the Maine Human Rights Commission amended its Housing Regulations
- Law Court: Employer is required under Maine’s wage payment laws to pay employee for her lost electronic paycheck that was stolen by cybercriminals after she inadvertently entered her login credentials in response to a phishing scam
- US District Court ME: Rejecting Magistrate Judge’s denial of motion to amend complaint to include Family and Medical Leave Act claim, the court found that it was a dispositive motion because its denial would end the FMLA claim and applied the higher, de novo, standard of review; and granted the motion despite being filed five months after deadline to amend pleadings in Scheduling Order where plaintiff showed “good cause” for the amendment based on plaintiff’s counsel learning new information during plaintiff’s deposition
- US District Court ME: In denying summary judgment on, in part, Equal Pay Act (“EPA”) claim, the court rejected defendant’s argument that plaintiff’s pay discrimination claim was untimely because the Lilly Ledbetter Fair Pay Act creates a new cause of action every time plaintiff receives a paycheck resulting from an earlier discriminatory compensation practice, including those outside the limitations period (note: the Ledbetter Act does not explicitly apply to the EPA, but the court cited a Seventh Circuit decision holding that its equivalent “paycheck accrual rule” applies to the EPA because the Act reversed the Supreme Court decision eschewing that rule); on Title VII pregnancy discrimination claim, the court held, in part, that the “continuing violations doctrine” rendered plaintiff’s claims relating to her 2016 maternity leave timely despite her not having filed an Equal Employment Opportunity Commission complaint on them within 300 days, where she did so with respect to her 2019 leave following pregnancy and birth during which she alleged to have suffered the same type of discrimination; and on Maine Human Rights Act claims, the court held, in part, that equitable tolling rendered plaintiff’s claims timely even though the Lilly Ledbetter Fair Pay Act does not apply to the Maine Human Rights Act
- US District Court ME: In denying motion to dismiss Rehabilitation Act claim by resident against provider of residential services, the court held, in part, that it is possible that the deliberate indifference standard will suffice to show intentional discrimination necessary to recover compensatory damages
- US District Court ME: Motion to dismiss former college football coaches complaint alleging discrimination, retaliation, and negligence denied; motion granted on defamation claim
- MHRC: Minutes of the Maine Human Rights Commission’s November 7th meeting include the adoption of the above-referenced amendments to its regulations; in September 2022, 17 cases were settled or withdrawn with benefits, and $501,000 to complainants; in October 2022, 27 cases settled or withdrawn with benefits, and $590,000 to complainants
- MHRC: Minutes of the Commission’s December 12th meeting posted
- EEOC: The Equal Employment Opportunity Commission issued a resource document titled “Protections Against Employment Discrimination for Service Members and Veterans”
- Maine DOL: The Maine Department of Labor posted its 2020 through 2030 ten-year expected employment outlook, as well as expected industry and occupational trends
- US DOL: OSHA published various suggestions on its “Holiday Workplace Safety” page
Sunday, November 6, 2022
- Bangor Daily News: All-white jury awards $3M after finding Bangor hospital discriminated against Black manager
- US District Court ME: A punitive damage award of $750,000 is possible under the Maine Human Rights Act and Americans with Disabilities Act caps combined
- US District Court ME: Interference claim under the Maine Medical Leave Law survived summary judgment where employer appeared to condition granting plaintiff’s medical leave on her signing a broad authorization for the release of medical information; retaliation claim also survived where plaintiff adduced sufficient evidence that employer reduced and then eliminated her hours because she requested medical leave; and plaintiff was entitled to attorney’s fees and costs under Maine’s personnel file statute where employer failed to provide a copy the file within 10 days of plaintiff’s request and not until after she filed suit to recover it (the court rejected employer’s argument that the request failed to invoke its obligation to produce the file because the request asked for a copy of the file instead of using the “magic words ‘review and copy'”)
- US District Court ME: Maine State Police trooper’s reports to his supervisors that the Maine Information and Analysis Center was collecting and maintaining data illegally was speech as an MSP employee and not that of a private citizen and therefore not protected by the First Amendment (but claim under Maine Whistleblowers’ Protection Act survived)
- First Circuit: A plaintiff who did not plan to book a room at hotel may nevertheless bring a claim against a hotel under Title III of the Americans with Disabilities Act for failure to comply with the requirement that it make information about its accessibility available on its reservation portal to those with disabilities
- First Circuit: Job transfer was not an “adverse employment action” under Title VII of the Civil Rights Act of 1964 because plaintiff failed to establish “any material harm or tangible consequences” from it, and plaintiff’s statement that it affected his ability to progress as a professional was insufficient to overcome summary judgment on the issue
- US District Court ME: Motion to amend complaint to include Family and Medical Leave Act claim denied where it was filed after deadline to amend in the scheduling order where plaintiff lacked “good cause” because she was aware of the information necessary to file an FMLA claim at the time she initiated this action
- US District Court ME: Motion to amend answer granted to include statutory damages cap under Maine Human Rights Act after deadline to amend in scheduling order where “good cause” and, as is required with motion to amend filed after summary judgment, “substantial and convincing evidence to justify a belated attempt to amend,” was shown
- US District Court ME: Emotional distress damages are not recoverable under Title II of the Americans with Disabilities Act
- US District Court ME: Lawsuit by healthcare workers challenging Maine administrative rule that they be vaccinated against the SARS-CoV-2 coronavirus dismissed
- US District Court ME: Court denied employer’s motion for summary judgment on the plaintiff’s sexual harassment hostile work environment claims but granted summary judgment on plaintiff’s retaliation and constructive discharge claims
- MHRC: November 7th Commission Meeting Agenda and Consent Agenda posted
- MHRC: September 19, 2022, meeting minutes include that Mark Walker of Hallowell and Thomas Douglas of Cumberland were unanimously approved by the Judiciary Committee as new Maine Human Rights Commissioners
Tuesday, August 9, 2022
- MHRC: Extensive changes are being proposed to the Maine Human Rights Commission’s Procedural, Employment, Public Accommodations, and Housing Rules with a comment deadline of September 6, 2022
- DOJ: Guidance on Nondiscrimination in Telehealth explains how various federal laws require making telehealth accessible to people with disabilities and limited English proficient persons
- US District Court ME: As a matter of first impression, the court recognized that hostile work environment retaliation based on protected activity under the Maine Whistleblowers’ Protection Act may be an actionable adverse employment action
- US District Court ME: In rejecting expert witness’s errata sheet that contradicted her deposition testimony for “clarity” and “accuracy,” the court applied the First Circuit’s sham affidavit standard that “when an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed”
Tuesday, June 14, 2022
- Maine Legislature: Public Law 589 enacted, which amends the Maine Whistleblowers’ Protection Act to remove a provision that had been interpreted by courts to prevent the Act from applying to employees subject to collective bargaining agreements
- Maine Legislature: Public Law 643 enacted, which amends the Maine Human Rights Act to define race for purposes of employment and education discrimination to include “traits associated with race, including hair texture, Afro hairstyles and protective hairstyles”
- US Supreme Court: Emotional distress damages are not recoverable under the Rehabilitation Act of 1973 or the Patient Protection and Affordable Care Act (or, by extension, the two other Spending Clause statutes, Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972)
- Maine Supreme Judicial Court: Proposed amendments to Maine Rules of Appellate Procedure (comments due July 1st) include allowing an image of a signature or “/s/” whenever a signature is required on a document filed with the Law Court
- US District Court ME: Sole owner of business and corporate officer exercising ultimate control over employer’s employment practices may be individually liable under Fair Labor Standards Act (but refraining from reaching same conclusion with respect to corresponding state law claims)
- First Circuit: Summary judgment for employer on First Amendment § 1983 vacated where plaintiff was speaking as a citizen (instead of pursuant to his official duties), defendant lacked an adequate justification under the Pickering balancing test, and there was a sufficient causal connection between plaintiff’s protected speech and his termination
- HUD: New guidance issued on “Compliance with Title VI of the Civil Rights Act in Marketing and Application Processing at Subsidized Multifamily Properties”
- MHRC: Minutes of May 16th Commission Meeting includes that a new Investigator, Angela Morse, has joined the Commission staff
Wednesday, April 6, 2022
- EEOC: New guidance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws,” addresses when discrimination against applicants and employees related to pandemic caregiving responsibilities may violate Title VII of the Civil Rights Act of 1964, Titles I and V of the Americans with Disabilities Act of 1990, or other EEOC-enforced laws
- US DOJ: New guidance document, “The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery,” provides information about how the ADA protects individuals with opioid use disorder from discrimination
- US District Court ME: Americans with Disabilities Act and Maine Human Rights Act damage caps are waivable affirmative defenses
- US District Court ME: Plaintiff is not required to show she suffered an “adverse employment action” to establish a failure to accommodate disability employment discrimination claim under Americans with Disabilities Act and Maine Human Rights Act
- US District Court ME: Motion to dismiss § 1983 due process claim by former public school employee denied where she plausibly alleged that her employment was terminated without adequate notice and an opportunity to be heard (she was told during a meeting that the termination decision had been made and given until the following day to decide whether to resign), despite extensive post-termination process offered to cure the constitutional deficiencies of the pre-termination process
- Law Court: Plaintiff’s allegation of “injury in the form of embarrassment, shame, humiliation, emotional distress, and harm to his reputation” was insufficient “actual injury” to overcome defendant’s anti-SLAPP motion to dismiss absent a showing of emotional distress so severe that no reasonable person could be expected to endure it (which usually requires expert testimony) and evidence of actual injury to reputation or quantifiable loss (compared with presumed reputational injury allowable in defamation cases)
- Law Court: Applying its previously adopted definition of a fixture to determine whether an object is an appurtenance for purposes of coverage under the public buildings exception to Maine Tort Claims Act immunity, the court held that a parking lot contiguous to a public building was not an appurtenance (and therefore MTCA immunity barred negligence suit)
- First Circuit: Summary judgment affirmed on Age Discrimination in Employment Act and Americans with Disabilities Act claims where plaintiff failed to show non-discriminatory justification for termination was pretextual
- MHRC: Minutes of March 14th Meeting posted
- MHRC: April 11th Meeting Agenda and Consent Agenda posted
Saturday, March 5, 2022
- White House: President signs “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which invalidates predispute arbitration agreements that preclude a party from filing a lawsuit in court involving sexual assault or sexual harassment, at the election of the party alleging such conduct
- First Circuit: Otherwise untimely § 1983 claims of racial discrimination in connection with plaintiff’s injuries and job assignments were saved by the “continuing violation theory” because timely termination claim was part of the same allegedly unlawful employment practice (but summary judgment was affirmed on other ground)
- First Circuit: Summary judgment for employer reversed on Title VII retaliation claim where jury could find that plaintiff did not resign by requesting severance package proposal and defendant pretextually terminated her employment by treating her as if she did; but summary judgment for employer affirmed on sexual harassment claim where employer conducted an adequate investigation into harassment complaint even though it did not ask plaintiff whether she provided a contemporaneous account of the harassment to anyone outside the workplace
- First Circuit: District Court judge acted within his discretion in rejecting advisory jury’s verdict that Title VII plaintiff was constructively discharged from employment
- First Circuit: “Brand Representatives” for marketing company fell within outside sales exemption in Fair Labor Standards Act
- US District Court ME: Post-discovery motion to take out-of-state witness’s trial deposition via videoconferencing from another state under Federal Rule of Civil Procedure 43(a) denied where party had opportunity to depose witness during discovery and did not do so
- US District Court ME: Although physical inspection of plaintiff’s computers and servers may provide some additional benefit compared with inspection of forensic images, the benefit is outweighed by the burden such a physical inspection would impose on the plaintiffs under Federal Rule of Civil Procedure 26(b)(1)
- US District Court ME: Plaintiff’s Maine Human Rights Act claim that he was fired because of his age under circumstances calculated to deny him a contractually-required severance was not preempted by ERISA
- US District Court ME: 2014, 2018, and 2020 incidents committed by different employees were part of the same racially “hostile work environment,” saving plaintiff’s claims related to the 2014 and 2018 incidents from dismissal for failure to exhaust administrative remedies, where plaintiff alleged that higher-ups failed to properly respond to all three
- US District Court ME: Summary judgment denied on Maine Whistleblowers’ Protection Act claim where alleged protected reporting may have been at least partially motivated to expose an unknown or concealed safety issue even if it may also have been both self-serving and done as part of her job duties
- US District Court ME: Summary judgment denied on disability employment discrimination claim by former scaffold employee with heart condition that could cause syncope where genuine issues of fact existed on essential job functions and feasibility of precautions to reduce safety risks
- US District Court ME: Summary judgment based on qualified immunity denied on Fourth Amendment (and Maine Tort Claims Act) claim against police officer who fatally shot man carrying a BB gun
- US District Court ME: Motion to compel arbitration of employment discrimination and ERISA claims granted
- EEOC: Report issued on workers age 40 and over in the federal workforce
- MHRC: March 14th Commission Meeting Agenda posted
Sunday, February 13, 2022
- US District Court ME: Maine’s Equal Pay Law, 26 M.R.S. § 628, which states in part that an “employer may not discriminate between employees . . . on the basis of sex by paying [unequal wages] for comparable work…,” does not require a showing of discriminatory intent
- Law Court: Uber’s “sign-in wrap” arbitration agreement for users was unenforceable because, unlike “clickwrap” or “scrollwrap” online contracts that require an affirmative manifestation of assent by the user, its “sign-in wrap” agreement simply informed the user that she was assenting to the terms by creating an Uber rider account and did not provide reasonable notice of its terms or that she was assenting to those terms
- Law Court: “In this case, we address the First Circuit Court of Appeals’ order certifying a question of law to us: ‘Should [Investor Business Daily’s] special motion to dismiss be granted under Me. Rev. Stat. tit. 14, § 556 (Maine’s anti-SLAPP law)?’ Because there is clear controlling precedent, we decline to consider the question.”
- MHRC: February 14th Commission Meeting Agenda and Consent Agenda posted
- United States Courts: Omicron Puts Strain on Jury Trials
Wednesday, January 26, 2022
- Supreme Court of New Hampshire: “We hold that the trial court erred in determining that the use of therapeutic cannabis prescribed in accordance with [New Hampshire’s therapeutic cannabis program] cannot, as a matter of law, be a reasonable accommodation for an employee’s disability under [New Hampshire’s employment discrimination law]”
- Maine Legislature: Hearing scheduled for February 2, 2022, before the Labor and Housing Committee on LD 1889, which is a Maine Human Rights Commission bill that would repeal Section 837 of the Maine Whistleblowers’ Protection Act (“WPA”), a section that was interpreted by the Law Court in Nadeau v. Twin Rivers Paper Company, LLC, 2021 ME 16, as barring WPA claims involving employees subject to collective bargaining agreements when read in conjunction with section 301 of the federal Labor Management Relations Act
- First Circuit: Under Title VII fee-shifting statute, attorney’s fees may be awarded to a prevailing plaintiff for time reasonably expended in connection with a separate but related case, provided the time was “devoted to work that is useful and of a type that is ordinarily considered necessary to the matter at hand”; time reasonably expended in settlement negotiations should be included in fee award; a 30% across-the-board discount was warranted for “impermissibly vague entries” such as “[m]eeting with Client,” “Telephone conference with Client,” and “Electronic correspondence [to or from] Client”; and a 25% across-the-board discount was ok to account for time inflated by using quarter-hour billing instead of six-minute increments
- US District Court ME: Employer’s motion for summary judgment on plaintiff’s (the Maine Human Rights Commission for the use of an employee with a disability) disability employment discrimination claim denied because, in part, plaintiff had standing to pursue claim for a forward-looking assurance of a fixed work schedule to accommodate employee’s intellectual disability despite the fact that employer provided a fixed schedule in the past and stated after the court complaint was filed that it did not intend to stop doing so, where employer had previously told employee four times that it would stop giving him the fixed schedule
- US District Court ME: Motion to dismiss as untimely 42 U.S.C. § 1983 and Americans with Disabilities Act claims denied where they were subject to Maine’s six-year tort statute of limitations and therefore subject to tolling under 14 M.R.S. § 853 on the basis of disability, and plaintiff’s complaint sufficiently pled an overall inability to function in society that prevented him from protecting his rights that would entitle him to toll the statute of limitations; but the court left for future briefing whether the tolling issue would be decided by a judge or jury and whether it would be scheduled for early resolution
- US District Court ME: Magistrate Judge recommended denial of motion to dismiss Americans with Disabilities Act failure to accommodate claim but recommended dismissal of age discrimination termination claim because plaintiff’s position was eliminated in a workforce reduction and plaintiff failed to allege that his employer did not treat age neutrally or that younger persons were retained in the same position
- US District Court ME: In denying defendant employer’s motion for summary judgment on Age Discrimination in Employment Act and Maine Human Rights Act age discrimination claims, the court found direct evidence of unlawful age discrimination where plaintiff was told by decisionmaker, in part, that he was too old for the job and that decisionmaker was “going to hire a younger person”
- Law Court: Summary judgment affirmed on Maine Whistleblowers’ Protection Act claim where plaintiff did not file a timely response to emailed motion and defendant’s statement of materials facts were thus admitted, including that plaintiff did not engage in Whistleblower-protected activity when she reported to her co-worker conduct by an employee that occurred during nonwork hours at a private party while the employee was not engaged in work; and denial of motion for enlargement to respond to motion affirmed in light of Maine Rule of Civil Procedure 5(b), which does not forbid service of records in excess of 50 pages via email
- Law Court: Summary judgment for employer on Maine Human Rights Act disability employment discrimination claim as untimely affirmed where court complaint was filed more than two years after plaintiff received unambiguous and authoritative notice of the discriminatory act, namely, a meeting in which he was told that the women who work in the office were afraid of him because of his Asperger’s and that he could not return to work until he received permission to do so
- US District Court ME: Res judicata, which prohibits a party from relitigating claims that were or could have been raised in a prior action, precluded former employee from pursuing fraudulent concealment claim against former employer in a subsequent action where her earlier Maine Whistleblowers’ Protection Act action against it was dismissed at summary judgment, and she knew then about the alleged fraudulent concealment (that her employer had secretly decided to terminate her employment years before it did so) and could have amended her complaint then to include the claim
- Maine Human Rights Commission: Minutes of January 10th meeting welcome a new Investigator
Tuesday, December 21, 2021
- Tenth Circuit: Adopting an “objective reasonableness inquiry that considers the law against what a reasonable employee would believe, not ‘what a reasonable labor and employment attorney would believe,'” the court held that the Title VII anti-retaliation provision covered an employee’s internal report of alleged harassment against two native Filipino employees based in the Philippines despite the fact that Title VII specifically excludes coverage of “aliens outside any State” because a “reasonable employee likely knows that discrimination based on race and/or national origin is unlawful, but is likely unfamiliar with Title VII’s statutory exceptions [and] such an employee should not be charged with such specialized legal knowledge”
- EEOC: Section N. added to its COVID-19 technical assistance document clarifies the circumstances in which COVID-19 may or may not meet the definition of a disability under the Americans with Disabilities Act and the Rehabilitation Act, including that someone with COVID-19 who is asymptomatic or has mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the actual disability prong; but a person is protected from being fired, not hired, or harassed under the “regarded as” prong if the person has COVID-19 or an employer mistakenly believes the person has COVID-19, even with minor symptoms, if the symptoms were expected to last more than six months
- US District Court ME: Pregnancy discrimination allegation under the Maine Human Rights Act (“MHRA”) dismissed where former employee alleged she was terminated because she missed work after giving birth but did not allege that a non-pregnant employee would have been allowed to take similar time off because the MHRA does not require employers to provide maternity leave as a reasonable accommodation absent a showing of differential treatment; but negligent misrepresentation allegation may proceed where employee alleged that employer, without exercising reasonable care, falsely assured her during interview that she would be eligible for maternity leave and she accepted the position in reliance on this false information
- Law Court: Despite fact that the Workers’ Compensation Act of 1992 defines “employer” to include its insurer, the injury notice provision in the Act (requiring an employee to give notice to her “employer” within 30 days after the date of injury in the instant case) does not require that notice be provided to the employer’s insurer when the employer is no longer in existence
- First Circuit: Section 1983 claim dismissed against private parties under contract with public housing department to manage housing department’s low-income housing project because plaintiff did not plausibly allege that the private parties were performing a function traditionally and exclusively reserved to the state
- MHRC: Minutes of December 13th Commission meeting posted
- MHRC: January 10th Commission meeting Agenda posted
