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.
Saturday, March 29, 2025
- US Supreme Court: Seeing a lost “opportunity to revisit McDonnell Douglas and clarify what role—if any—it ought to play in Title VII litigation,” Justice Thomas and Justice Gorsuch dissented from denial of writ of certiorari in Hittle v. City of Stockton, California
- US Supreme Court: The preponderance-of-the-evidence standard governs when an employer attempts to demonstrate that an employee is exempt from the minimum-wage and overtime-compensation requirements of the Fair Labor Standards Act of 1938
- US District Court ME: Employee plausibly pled sufficient facts to equitably toll 300-day administrative filing deadline under Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) to start from when plaintiff learned that his prior position had not actually been eliminated, contrary to what he had been told at the time of termination
- First Circuit: Summary judgment for employer reversed on Title VII of the Civil Rights Act of 1964 (“Title VII”) sexual orientation and gender discrimination claim where a reasonable jury could find that plaintiff was the only female on employer’s executive team, she was the only team member to lose her job, after her termination the team consisted entirely of heterosexual males, employer had a continuing need for her services after her termination, she was effectively replaced by a heterosexual male who was hired with a different job title but essentially similar job responsibilities, and employer’s stated reason that she was terminated as part of a larger reorganization was untrue
- First Circuit: Summary judgment affirmed on ADEA claim because, in part, 77-year-old former grocery-store employee could not prove that employer did not believe the accuracy of its stated reason that it fired her for knowingly purchasing a beer for a minor in violation of company policy even if the employer was mistaken and the policy actually prohibited selling to a minor
- First Circuit: Bypassing matter of first impression of whether current or former employees of the federal Transportation Security Administration (“TSA”) may bring claims under the Rehabilitation Act of 1973 (“Rehab Act”)–and what administrative exhaustion requirements apply–in light of the exclusivity provision in the Aviation and Transportation Security Act, as modified by the allowance of claims under the Whistleblower Protection Enhancement Act, the court held, in part, that summary judgment was properly granted for the TSA on the merits of her Rehab Act claim
- First Circuit: In reversing summary judgment for employer on ADA claim, the court held, in part, that former employee was not required to produce medical evidence that his knee injury was a protected disability where “a lay jury would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities such as standing, walking, and bending”; the job duties former employee could not perform were not “essential” because employer did not universally require other employees to perform them; and request for a reduced-hour work schedule was not facially unreasonable in light of, in part, Congress including “part-time or modified work schedules” as examples of possible accommodations under the ADA
- First Circuit: In affirming summary judgment for employer on Title VII sex discrimination claim, the court held, in part, that scheduling interventional radiologist for more quality-of-care reviews than her male colleagues was not an actionable adverse employment action even under Muldrow v. City of St. Louis where plaintiff made “no effort to demonstrate with evidence how a scheduling discrepancy–which never culminated in more frequent reviews–caused any consequences to the terms or conditions of her employment that left her worse off”
- First Circuit: Summary judgment affirmed for employer on former employee’s Title VII claim that employer unlawfully failed to grant employee a religious exemption to its COVID-19 vaccination requirement where employer met its burden of showing that granting an exemption would have caused it an undue hardship because it reasonably relied on the objective medical evidence available to it in concluding that the vaccine reduces the likelihood of transmitting COVID-19 regardless of whether it actually did
- First Circuit: Summary judgment for hospital affirmed on registered nurse’s Title VII claim arising out of hospital’s refusal to grant nurse religious exemption to its COVID-19 vaccine requirement where hospital met its undue hardship defense because (regardless of whether the vaccines actually worked) it “implemented its vaccine requirement based on the CDC’s recommendations, which describe vaccines as mitigating the effects and spread of COVID-19”
- First Circuit: The court announced the passing of Judge Bruce M. Selya and Judge Michael Boudin
- EEOC Press Release: Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace
- EEOC Press Release: EEOC Publishes Annual Performance and General Counsel Reports for Fiscal Year 2024
Tuesday, November 12, 2024
- EEOC: 216-page “Enforcement Guidance on Harassment in the Workplace,” effective April 29, 2024, replaces the EEOC’s five prior harassment guidance documents issued between 1987 and 1999 and has descriptions and examples addressing: the different protected bases from harassment, including race, color, national origin, religion, sex (including sexualized conduct, pregnancy, and sexual orientation/gender identity), age, disability, genetic information, retaliation, and cross-bases issues; various ways to meet the requirement that harassment be caused by plaintiff’s protected class; the differences between disparate treatment sexual harassment (also known as “quid pro quo”) and hostile work environment claims, making clear that a “hostile work environment claim also can include conduct that is independently actionable as disparate treatment,” although a later section references an EEOC Compliance Manual provision stating that certain damages, such as lost wages, for disparate treatment occurring outside the statute of limitations are not available even if included in a hostile work environment claim; conduct that meets the requirements of being both subjectively and objectively hostile, including actionable single incidents such as sexual assault, physical violence or threat of physical violence, displaying hate symbols such as a swastika, use of denigrating animal imagery, threats to deny job benefits for rejecting sexual advances, and use of the “n-word”; unlawful conduct that is not directed at the complainant, such as offensive comments in complainant’s presence or the complainant being forced to participate in the harassment of another; unlawful conduct occurring outside of the workplace, such as at holiday parties, employer-provided housing, or sent from work email; when social media posts outside of work may be unlawful, such as when complainant becomes aware of coworkers discussing offensive posts about complainant at work; the various standards for employer liability for harassment, including automatic liability for harassment by a “proxy or alter ego of the employer” such as owners and partners, vicarious liability in the case of harassment that includes tangible employment actions, vicarious liability for harassment by supervisors if the employer cannot establish the Faragher-Ellerth affirmative defense, and negligence for harassment by coworkers; systemic harassment, meaning affecting multiple complainants; pattern and practice harassment, meaning the employer’s “standard operating procedure”
- First Circuit: Rejecting its earlier standard for retaliatory harassment under Title VII articulated in Noviello v. City of Boston, the court noted that materially adverse actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination” are prohibited retaliation even if they do not “alter the conditions of the victim’s employment”
- First Circuit: The court held that otherwise time-barred discrete acts of retaliation are not rendered timely by including them in a hostile work environment claim that continues into the limitations period
- First Circuit: In vacating 12(b)(6) dismissal of Title VII religious accommodation claim brought by hospital worker who was fired for refusing COVID-19 vaccination, the court held, in part, that a religious practice or belief does not need to be accepted by others within the same religion for it to be protected, and the hospital’s undue hardship defense of safety and requiring in-person work required further factual development
- First Circuit: While the majority opinion affirmed it, dissenting judge would have vacated summary judgment for employer on Title VII coworker sexual harassment claim on the ground that an employer’s inadequate investigation may subject it to liability even if the poor investigation did not cause subsequent harassment
- First Circuit: With respect to the above case involving Judge Thompson’s dissent, in denying appellant’s petition for rehearing en banc, the court stated that it was not a “case in which the allegedly harassing employee was proximate to the plaintiff during or following the investigation . . . such that the failure to investigate harassment that was not previously known to the employer could cause a hostile work environment going forward,” and that the majority in the three-judge panel decision did not hold that “reharassment of a sexual assault victim is a prerequisite for a finding of co-worker sexual harassment, even where the employer’s investigation into the allegations is negligent”
- First Circuit: In affirming jury verdict for employer on Equal Pay Act claim, the court, in part, held that the trial court did not err in refusing to disqualify or question a juror based on his “liking” a conservative website on Facebook and (according to employee’s counsel) demonstrating hostility towards employee and her counsel during trial
- US District Court ME: Summary judgment granted for plaintiffs on Equal Protection claim challenging military healthcare program exclusion for surgical “sex gender changes,” where intermediate scrutiny applied because exclusion facially classifies based on transgender status (and therefore sex) and defendants offered no governmental interests to justify the exclusion
- US District Court ME: Former city employee’s Title VII and MHRA claim dismissed because it would not be sex discrimination even if plaintiff were fired because his former boss wanted to replace him with a woman with whom he sought a close, romantic relationship; and procedural due process claim dismissed because Maine Rule of Civil Procedure 80B provides an adequate post-deprivation remedy even if plaintiff were fired without explanation, advance notice, or a pre-termination hearing
- US District Court ME: 12(b)(6) motion to dismiss Title VII and MHRA sex discrimination claim denied where plaintiff plausibly alleged she was fired based on the sex stereotype that women will “stand by your man” and employer believed she would abandon her employment after her male partner was fired
- US District Court ME: In denying employer’s motion for summary judgment on former employee’s “failure to recall” claim (apparently the first in Maine or the First Circuit), the court rejected employer’s argument that it did not discriminate against former employee on the basis of pregnancy in by failing to recall her after layoff because she was ineligible for recall, it did not recall any other laid off workers in plaintiff’s job category, and that it hired from outside
- US District Court ME: The court denied request for a preliminary injunction barring Maine Human Rights Act enforcement against religious entities and certain individuals based on Free Exercise of Religion, Free Speech, and Establishment Clause grounds
- US District Court ME: The court denied hospital’s and chief of surgery’s motion to dismiss former surgeon’s breach of contract and intentional infliction of emotional distress claims
- Law Court: In reversing summary judgment for employer on Title VII and § 1981 race associational employment discrimination claim, the court found sufficient genuine issues of material fact that employer terminated plaintiff because her husband was Black and Nigerian
- EEOC: “High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector from 2014 – 2022″ study includes that women fill just 22.6% of the high tech workforce in all industries and only 19.4% of the high tech workforce in the high tech sector
- MHRC: 2024 Annual Report includes that 20% of the 154 Investigators’ Reports issued in the past fiscal year resulted in reasonable grounds findings
Tuesday, April 23, 2024
- US Supreme Court: “To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show, according to the relevant text, is that the harm incurred was ‘significant.’ Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”
- EEOC: Effective June 18, 2024, the EEOC has issued its final regulations implementing the Pregnant Workers Fairness Act, which requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and the rule, in part, provides a) a non-exhaustive list of “related medical conditions,” including abortion, sciatica, carpal tunnel syndrome, chronic migraines, anxiety or depression, or psychosis, and menstruation, b) examples of “reasonable accommodations,” including paid or unpaid leave or “temporarily suspending one or more essential functions of the position” unless doing so would impose an undue hardship, and c) the limited circumstances under which a covered entity may seek supporting documentation from an employee who requests an accommodation
- Law Court: Employer was not vicariously liable under the Maine Human Rights Act public accommodations provision for a racially offensive slur its employee directed at a customer after the employee had finished serving the customer and was engaged in other tasks, where there was support in the record for the trial court’s conclusion that the slur was delivered during an independent course of conduct not actuated by a purpose to serve the employer
Thursday, March 21, 2024
- MHRC: Kit Thomson Crossman was appointed Executive Director on November 20, 2023
- US Supreme Court: A whistleblower bringing a claim under the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002 bears the burden to prove that his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint”; he is not required to make some further showing that his employer acted with “retaliatory intent,” meaning something akin to animus
- First Circuit: “[A]s a matter of the statute’s plain and unambiguous language, the [Maine Equal Pay Law]’s liability provision does not incorporate an intent element, and its affirmative defenses are limited to those specifically enumerated”
- US District Court ME: The court allowed plaintiff to file a late response statement to defendant’s statement of material facts on defendant’s motion for summary judgment, finding excusable neglect where plaintiff’s counsel did not notice the missing response statement when she electronically filed other responsive filings (legal staff in her office had not included it among the documents to be filed because plaintiff’s counsel had not yet approved it)
- US District Court ME: In ruling for and against former employer on its motion for summary judgment on various employment discrimination claims, the court held, in part, that plaintiff’s denial of Family and Medical Leave Act benefits claim could proceed because there was sufficient evidence that employer discouraged plaintiff from using FMLA leave even though it never denied the leave
- US District Court ME: The court denied church’s request for a preliminary injunction to prevent enforcement of the Maine Human Right Act prohibitions on educational and employment discrimination based on sexual orientation and gender identity against religious school, finding no Free Exercise, Establishment, or Free Speech violations with such enforcement
- US District Court ME: Finding sufficient evidence under the McDonnell Douglas framework, the court denied employer’s motion for summary judgment as to the employee’s claims of sex and age discrimination under the Maine Human Rights Act
- EEOC: Starting December 13, 2023, attorneys may electronically file charges of discrimination on behalf of their clients through the EEOC E-File Portal
Friday, November 3, 2023
- EEOC: Proposed Equal Employment Opportunity Commission Enforcement Guidance on Harassment in the Workplace (comments due 11/1/2023) would consolidate and supersede several earlier EEOC guidance documents in this area and focus on three components of a harassment claim: Covered Bases and Causation; Discrimination with Respect to a Term, Condition, or Privilege of Employment; and Liability
- US District Court ME: Employer’s motion for summary judgment on former employee’s §1981 claim denied where an individual involved in termination discussions called former employee “an evil man,” which the court recognized as a “particularly loaded term when used to describe a Muslim American,” despite employer’s disputed claim that comment was directed at plaintiff because of his allegedly disrespectful treatment of a coworker
- Maine Legislature: Effective October 25, 2023, new law authorizes the Department of Labor and the Attorney General to file civil actions against employers who retaliate against employees for exercising their rights under Title 26, Chapter 7 Employment Practices, and seek fines of up to $1000 per violation
- Maine Legislature: Effective October 25, 2023, Maine’s Equal Pay Law amended to prohibit pay discrimination on the basis of race in addition to sex
- Maine Legislature: Effective October 25, 2023, Maine’s severance pay statute amended to apply to more than “industrial or commercial” facilities
- Maine Legislature: Effective October 25, 2023, Maine’s statute prohibiting non-compete agreements amended to prohibit them for veterinarians regardless of income
- MHRC: The Maine Human Rights Commission’s 2023 Annual Report provides data on the 683 new complaints filed in FY 2023 (up from 614 the prior year), including that 57% were based on employment, 21% were based on housing, 16% were based on public accommodations, and 2% were based on education
- EEOC: Karla Gilbride sworn is as General Counsel, becoming the first person with a known disability to be appointed to the role
Monday, September 11, 2023
- EEOC: Extensive technical assistance document, “Visual Disabilities in the Workplace and the Americans with Disabilities Act,” offers over 40 examples of reasonable accommodations and policy modifications
- EEOC: Comments due by October 10, 2023, on proposed rule to implement the Pregnant Workers Fairness Act, which requires a covered entity to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions
- EEOC: Technical assistance document that answers questions about how artificial intelligence and employment selection procedures may run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) is part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software—including AI—used in hiring and other employment decisions complies with the federal civil rights laws
- Maine Legislature: Effective October 25, 2023, the Maine Human Rights Act (“MHRA”) has been amended to increase the compensatory and punitive damages caps to a range from $100,000 to $1 million
- Maine Legislature: Effective October 25, 2023, exception to tort bar under Maine Workers’ Compensation Act exclusivity provision created that allows common law claims against individuals for sexual harassment, sexual assault, or intentional torts related to sexual harassment or sexual assault
- Maine Legislature: Paid family and medical leave law enacted that will start May 1, 2026
- Maine Department of Labor: Webpage created for paid family and medical leave law, which will include information on the Department’s rulemaking process
- US Supreme Court: Showing “more than a de minimis cost” as that phrase is used in common parlance does not suffice to establish “undue hardship” for purposes of employer defense to providing a religious accommodation under Title VII
- US Supreme Court: Certiorari granted on the following question: Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?
- US Supreme Court: The First Amendment prevents Colorado from enforcing its nondiscrimination law to require website designer to create wedding websites for same-sex couples
- US Supreme Court: Even for claims premised on the past denial of a free and appropriate education, plaintiffs are not required to exhaust administrative procedures under the Individuals with Disabilities Act (“IDEA”) prior to bringing claims under other federal antidiscrimination statutes such as the Americans with Disabilities Act of 1990 if the remedy they seek is not one the IDEA provides
- Law Court: In the context of analyzing trial court’s refusal to give a requested jury instruction, the court noted that an employer requiring an employee to be “100 percent fit or fully healed” to return to work is only a per se violation of the Americans with Disabilities Act (“ADA”) (and presumably also the MHRA) if the employee was capable of performing the essential functions of the job with or without reasonable accommodation
- Maine Supreme Judicial Court: 8/18/2023 Administrative Order regarding remote proceedings provides that pretrial, discovery or status conferences and non-testimonial hearings in civil cases shall be conducted remotely, but all other proceedings in civil cases shall be held in person unless otherwise ordered
- Maine Supreme Judicial Court: 6/30/2023 Standing Order for Limited Access to Juror Information provides, in part, that “[e]very person to whom juror information is disclosed or disseminated under this Order . . . Shall return or destroy all juror information to the Clerk’s office at the end of the trial or trials for which the juror information was obtained or the earlier disposition of the case(s)”
- Maine Supreme Judicial Court: 5/9/2023 Administrative Order provides, in part, that “[a]ll cellular phones, computers, and other electronic devices shall be turned off prior to entering the courtroom, unless otherwise authorized by the presiding judge, justice, or magistrate”
- Maine Supreme Judicial Court: 3/30/2023 Administrative Order prohibits courthouse entry if a person is experiencing symptoms related to COVID-19 or has received a positive COVID-19 test in the past five days
- First Circuit Court of Appeals: Motion to dismiss healthcare workers’ First Amendment and Equal Protection complaint against the State of Maine denied because it plausibly alleged that State COVID-19 vaccine mandate for healthcare workers impermissibly has a medical exemption but not a religious exemption; but motion to dismiss Title VII failure to accommodate religion complaint against employers granted because the risk of the State suspending healthcare facilities’ licenses would have been an undue hardship
- First Circuit Court of Appeals: Summary judgment on professor’s sex discrimination and retaliation claims affirmed, where professor failed to show that reason for tenure denial was pretextual or based on sex, or that decision was because professor had complained about sexual harassment
- US District Court ME: After a detailed analysis of the pleading requirements for protected activity under the False Claims Act, the court disagreed with the Magistrate Judge’s recommended decision and denied former employer’s motion to dismiss
- US District Court ME: On motion to dismiss former professor’s First Amendment complaint against university and its president alleging that she was fired for speaking out against the University’s facemask and vaccination policies, motion denied against president in his official capacity with respect to claim for reinstatement, under Ex parte Young exception to Eleventh Amendment immunity, but granted against him in his individual capacity based on qualified immunity
- US District Court ME: Plaintiff’s motion for equitable relief denied where jury returned verdict for defendant on quantum meruit claim, and quantum meruit is a “legal claim” subject to a jury trial; and court followed advisory jury verdict for defendant on unjust enrichment claim, which is an “equitable claim” where there is no right to a jury trial
- US District Court ME: Motion to dismiss based on qualified immunity granted because “the law is not clearly established that a state official who verbally pursues a sexual relationship with an employee of a private company violates the Fourteenth Amendment Equal Protection Clause, even if the verbal pursuit qualifies as workplace sexual harassment for purposes of a motion to dismiss”
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”
