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.
Thursday, April 6, 2017
- Seventh Circuit: In en banc decision, the court held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964
- Maine Legislature: LD 1239 would amend the Maine Human Rights Act to, in part, authorize the Maine Human Rights Commission to issue binding decisions and remedies if both parties agree; suspend an investigation if Complainant files an affidavit that she will seek a right-to-sue after 180 days; impose sanctions (including dismissal) for providing false information or violating nondisclosure agreement; dismiss or refuse to accept frivolous or repetitious complaints; and issue a right-to-sue letter at its discretion (not just upon request by Complainant) after 180 days
- Second Circuit: Without reversing prior Second Circuit precedent that Title VII does not prohibit discrimination on the basis of sexual orientation, the court held that complaint plausibly alleged claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse v. Hopkins
- Eighth Circuit: The court held that a “reasonable accommodation” under the Americans with Disabilities Act may include transfer to a position that the employer reasonably anticipates will become vacant in the fairly immediate future, although it is unavailable at the time the employee goes through the accommodation process
- Third Circuit: The court held that Fair Housing Act claims survives the death of a party
- Maine Legislature: LD 1222 would make several changes to the laws governing employment practices concerning substance abuse testing, including removing the “probable cause” standard and replacing it with an “impairment detection” standard required before the employer may conduct substance use testing
- Maine Legislature: LD 1240 would provide immunity under the Maine Tort Claims Act to health care practitioners who contract to provide free medical services to underserved populations of the state
- Maine Legislature: LD 1259 would amend the Maine Human Rights Act to provide that evidence of discrimination with respect to compensation includes an employer seeking information about a prospective employee’s prior wage history before an offer of employment, including all compensation, to the prospective employee has been made; and preventing employees from discussing or disclosing other employees’ wages
- Law Court: Oral arguments schedule for April 12th include Cum-16-312 (whether driver who waived plaintiff on to make turn in front of him negligently caused ensuing accident, and whether State of Maine has to provide underinsured motorist coverage to plaintiff); Cum-16-408 (whether defendant who did not carry the level of liability insurance required by its excess insurance carrier was underinsured for purposes of plaintiff’s claim against his own auto insurance); Cum-16-415 (whether judgment against real estate agent on misrepresentation claim had to be reduced by amount of settlement with prior homeowners pursuant to 14 M.R.S. § 163)
- Law Court: The court affirmed summary judgment for University of Maine System on negligence claim arising out of student’s slip-and-fall injury, finding that “good cause” did not exist for student’s failure to serve formal 180-day notice of claim where student offered no explanation for why she did not serve notice within the 63 days remaining of the notice period after University denied her informal claim
- Law Court: the court affirmed summary judgment for homeowner’s insurance company in reach-and-apply action to recover damages arising out of auto accident where the driver fit within “regular use” exclusion
- USDCT ME: Magistrate Judge recommended, in part, that the court disregard allegations in original complaint relied upon by defendant in its motion to dismiss, finding that an amended complaint supersedes the original complaint, and facts that are neither repeated nor otherwise incorporated into the amended complaint no longer bind the pleader; but otherwise recommended dismissal of equal protection claim
- US Supreme Court: The Court held that a district’s court’s decision to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion
- Federal Judicial Center: The history and workings of the U.S. court system can now be explored with a variety of easy-to-navigate and interactive tools available on revamped website
Tuesday, March 28, 2017
- First Circuit: In affirming summary judgment for the federal government on claims arising out of its failure to provide cost-of-living allowances for plaintiffs working outside of the contiguous United States, the court held, in part, that Title VII disparate impact claims were barred by statutory provision allowing different pay for workers in different locations, and that Administrative Procedure Act claims were precluded by the Civil Service Reform Act of 1978
- US District Court ME: The court entered partial summary judgment for Secretary of Defense on Age Discrimination in Employment Act and Rehabilitation Act claims, finding that the limitations periods contained in the Rehab Act and the ADEA limited the employee’s claims to events that occurred within the forty-five day period prior to his contact with the EEO counselor and that neither equitable exceptions nor federal regulations expanded the scope of the employee’s claims; and that the human resources representative who rejected the employee’s promotion application was unaware of the employee’s age or disability
- Maine Legislature: Public hearing before the Judiciary Committee scheduled for March 29th on LD 198, which would make a landlord not liable in a civil action for personal injury, death, property damage or other damages caused by an assistance animal on the landlord’s rental property
- MHRC: April 24th Commission Meeting Agenda published
- MHRC: March 27th Commission Meeting minutes published
- Kennebec Journal: Former Hallowell officer gets $60,000 settlement over police chief rape accusation
Thursday, March 23, 2017
- First Circuit: After finding ambiguity in exception to overtime coverage based on the absence of a comma, the court relied on the default rule of construction that Maine wage and hour laws “should be liberally construed to further the beneficent purposes for which they are enacted,” and found the exception inapplicable to plaintiffs’ occupation
- Law Court: In legal malpractice action arising out of attorney’s alleged failure in underlying employment discrimination case to properly object to motion for summary judgment and conduct adequate discovery, the court affirmed summary judgment for attorney after finding that plaintiff’s legal expert’s opinion that plaintiff would have prevailed in the discrimination case but for the alleged malpractice was conclusory
- MHRC: Revised March 21st Commission Meeting Agenda posted
- Maine DOL: Latest Employer Update published
Sunday, March 12, 2017
- US Supreme Court: The Court summarily vacated a Fourth Circuit Court of Appeals decision in favor of transgender student who sought to use school bathrooms consistent with his gender identity, and remanded the case for further consideration in light of the United States Department of Education withdrawal of its guidance documents (upon which the 4th Circuit decision was based) that the prohibitions on discrimination “on the basis of sex” in Title IX requires access to sex-segregated facilities based on gender identity
- Maine Legislature: LD 1004 would amend 26 MRS § 626-A to increase the fines for a violation of 26 M.R.S. §§ 621-A to 623, 626, 628, 629 or 629-B (e.g., equal pay, unfair agreements, timely pay, pay record keeping, etc.) to $500 for the first violation and $2,500 for each subsequent violation, and provide a private right of action for a person aggrieved, including the ability to recover attorney’s fees
- 11th Circuit: The court held that discrimination because of sexual orientation is not prohibited by Title VII, but allowed claim to go forward to the extent it alleged discrimination because of gender non-conformity
- 5th Circuit: The court held that the United States Supreme Court decision, National R.R. Passenger Corp. v. Morgan, overruled the 5th Circuit’s prior cases to the extent they held that the continuing violation doctrine (applicable to hostile environment claims) does not apply when an employee was or should have been aware earlier of a duty to assert her rights
- Law Court: The court held that a claim for disparate impact age discrimination pursuant to the Maine Human Rights Act is evaluated according to the “business necessity” framework, not the “reasonable factor other than age” standard in the Age Discrimination in Employment Act
- US District Court ME: The court denied motion for summary judgment on Emergency Medical Treatment and Active Labor Act claim brought by wife of man who died after being discharged from hospital, finding genuine issues of material fact as to whether the screening offered was “reasonably calculated to identify critical medical conditions” given the decedent’s history and presenting symptoms; whether an “emergency medical condition” existed and was known to the hospital; and whether he was stabilized at the time he was discharged
- US District Court ME: Magistrate Judge ordered production of notes of interview with plaintiff taken by an investigator and attorneys from an outside firm hired by defendant, finding that Federal Rule of Civil Procedure 26(b)(3)(C), allowing a party to obtain a previous statement by that party, overrode defendant’s attorney-client privilege argument, and that the notes were a “substantially verbatim” record of the plaintiff’s statement as required by the Rule
- MHRC: Free three-hour seminars giving an overview of Fair Housing laws offered in April for landlords and property managers as a part of Fair Housing Month
- Maine Department of Labor: Maine Department of Labor Announces Rulemaking regarding Employment Protections for Victims of Domestic Violence, Sexual Assault, or Stalking
- Press Herald: Age discrimination suit against Shaw’s allowed to advance
- Press Herald: Lawsuit against Maine State Police over deadly rampage gets reprieve
Monday, March 6, 2017
- Eighth Circuit: The court held that Title VII retaliation complaint survived motion to dismiss because six-week period between the EEOC charge and termination plausibly alleged a but-for causal connection, and, while other factual allegations in the complaint may have been consistent with termination for poor performance, they were not an “obvious alternative explanation” that rendered the claim implausible
- First Circuit: The court reversed 12(b)(6) dismissal of complaint alleging that police officers violated plaintiffs’ substantive due process rights by failing to protect them from violence after having taken affirmative steps to increase the threat that a suspect posed to them, finding that discovery was warranted to determine whether the officers’ actions were in line with police protocol and training
- First Circuit: Affirming summary judgment for town (in unpublished opinion) on claim by former employee that he was denied procedural due process under the Fourteenth Amendment in his pre-termination hearing, the court held, in part, that “even where a decision-maker makes the termination decision before the pre-termination hearing, and drafts a corresponding termination letter, there is no constitutional infirmity as long as the planned termination was subject to revision”
- US District Court ME: In sexual harassment claim in which plaintiff testified at her deposition that she continues to suffer severe mental distress as a result of alleged sexual harassment to which she was subjected by a different employer, Magistrate Judge denied former employer’s motion to compel plaintiff’s production of records relating to her medical, psychiatric, psychological, and other health care, reasoning that whether a plaintiff has forfeited the psychotherapist-patient privilege turns not on a plaintiff’s characteristics or history but, rather, on the nature of his or her claim–specifically, whether the plaintiff makes a claim for emotional distress damages greater than those that any healthy, well-adjusted person would suffer as a result of the conduct at issue (here she did not)
- Law Court: The court held that the Maine Probate Code does not waive sovereign immunity when the Department of Health and Human Services acts as a public conservator
- Maine Legislature: Work session scheduled for March 8th before the Labor, Commerce, Research and Economic Development Committee on LD 466, “An Act To Protect Employees from Abusive Work Environments”
- Maine Legislature: Work session scheduled for March 8th before the Labor, Commerce, Research and Economic Development Committee on LD 487, “An Act To Promote Keeping Workers in Maine”
- MHRC: Minutes of February 27th Commission Meeting including a Quarterly Report that the Commission had 662 cases pending during the quarter ending 12/31/2016 and the average number of days a case was at the agency was 309 days
- MHRC: March 27th Commission Meeting Agenda posted
- HUD: Dr. Ben Carson Sworn in as HUD Secretary
Wednesday, March 1, 2017
- US Supreme Court: The Court granted certiorari to decide the following issue: Whether the tolling provision in 28 U.S.C. § 1367(d) suspends the limitations period for the state-law claim while the claim is pending and for 30 days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile
- US Supreme Court: The Court granted certiorari to decide the following issue: Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the U.S. Courts of Appeals for the 2nd, 4th, 7th and 10th Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver and the unique-circumstances doctrine
- US District Court ME: In granting motion to dismiss § 1983 due process complaint by former University of Maine employee, the court held that general allegation in complaint that plaintiff had a protected property interest in continued employment (as opposed to being an at-will-employee, entitling him to no due process protection) was a legal conclusion, and, beyond the length of plaintiff’s employment with the University, the complaint did not contain any specific factual allegations to support the allegation
- Law Court: In affirming Superior Court’s admission of documents under the “business records” exception to the rule against hearsay, the court held that the witness who established that the documents were subject to the exception did not need to have personal knowledge about the facts recorded in the documents
- Mainebiz: Collins co-sponsors bill to protect older workers from discrimination
Saturday, February 25, 2017
- US Supreme Court: Administrative exhaustion under the Individuals with Disabilities Education Act is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a ‘free appropriate public education'”
- Maine Legislature: LD 701 would create the Maine Paid Family Leave Insurance Program to provide wage-replacement benefits to persons who qualify for family medical leave
- Maine Legislature: LD 644 would allow an attorney who practices law in a jurisdiction other than this State to be admitted to the general practice of law in this State without complying with the qualifications for admission to practice law specified in the Maine Revised Statutes, Title 4, section 805-A
- NY Times: Score One for the Bank Whistle-Blowers
- Maine Public: What’s Next For Transgender Rights Lawsuits With School Guidance Rescinded
Thursday, February 16, 2017
- US District Court ME: Magistrate Judge denied, for purposes of discovery, motion to sever single complaint involving three employment discrimination claims against same employer but based on separate incidents that occurred at different times and did not involve the same actors, where efficiencies could be realized if the claims remained consolidated at least for discovery
- Maine Legislature: LD 611 would, among other things, prohibit discrimination on account of sexual orientation in jury selection
Friday, February 10, 2017
- Maine Legislature: LD 466 would provide legal relief for employees who have been harmed psychologically, physically or economically by exposure to abusive work environments
- US District Court ME: The court dismissed Maine Human Rights Act claim that was filed in court more than two years after the date of alleged discrimination and 91 days after the Maine Human Rights Commission dismissed the administrative complaint following a no-reasonable-grounds finding, noting that that the critical date with respect to the 90-day deadline to file in court is not the date of receipt of the Commission’s dismissal letter, but the date of the dismissal
- Maine Public: Investigation of Lewiston Schools Uncovers Alleged Discrimination by Race, Disability
Tuesday, February 7, 2017
- US District Court ME: The court denied motion to dismiss employment discrimination complaint against defendants who were not named in Maine Human Rights Commission (“MHRC”) administrative complaint, where MHRC complaint listed trade name of the hotel chain operated by defendants, and whether “identity of interest test” was met is better suited for summary judgment
- Law Court: The court held that the Maine Health Security Act provision granting immunity for making complaints to the Board of Licensure in Medicine did not bar physician’s claim for indemnification against his former employer (hospital) to recover his attorney’s fees incurred in defending Board filed by former employer
- Law Court: Oral arguments for Tuesday, February 7th, include Ken-16-274 (whether good cause existed for plaintiff to miss 180-day Maine Tort Claims Act notice of claim where defendant impliedly promised to pay her medical expenses, and she reasonably believed it was unnecessary to take any legal action given that promise)
- First Circuit: The court reversed summary judgment for police officers on 4th Amendment claim arising out of their taking patron attending a concert intoxicated into protective custody, holding that qualified immunity was not available given the state of the preexisting law, the unconstitutionality of a police officer’s actions in taking a person into protective custody, handcuffing that person, transporting him to a police station, and jailing him without probable cause to believe that he is incapacitated should have been apparent
- Maine Legislature: Public hearing February 9th before the Judiciary Committee on LD 112, An Act To Further Limit the Liability of Landowners Who Permit the Use of Land for Outdoor Recreational Activity
