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, 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
Saturday, November 27, 2021
- Law Court: Balancing (for the first time) the constitutional right to a jury trial with Maine’s Strategic Lawsuits Against Public Participation statute, the court held that “the special motion to dismiss must be denied if the opposing party presents ‘prima facie evidence that at least one of the moving party’s petitioning activities was devoid of any reasonable factual support or any arguable basis in law and caused actual injury to the nonmoving party.'”
- EEOC: Updated COVID-19 Technical Assistance addresses requests for exceptions based on religious beliefs/practices to employer vaccination requirements
- MHRC: Minutes of November 8th Commission Meeting posted
- MHRC: December 13th Meeting Agenda posted
Sunday, October 17, 2021
- First Circuit: Summary judgment based on qualified immunity for police officers reversed on Fourth Amendment claim arising out of warrantless physical intrusion on the curtilage of home where officers did not simply knock on front door as a homeowner would expect from a private citizen (the “knock and talk” exception) but reentered the property four times and took aggressive actions, including knocking on bedroom window, until plaintiff came to the door
- Law Court: Summary judgment affirmed for homeowner on negligence claim by visitor of tenant injured by fall caused by improper landing stair height because 1) provision in lease giving owner right to access premises “for purposes of repair and inspection” did not take the premises out of tenant’s exclusive control, noting a lease is equivalent to a conveyance for almost all purposes; and 2) landlord did not owe duty to tenant to make the premises more safe than it was at the time of letting where step was not a latent defect that could not be discovered by ordinary and reasonable care
- Maine Supreme Judicial Court: Administrative Order announces that, effective October 4, 2021, the preferred format for most pretrial court proceedings in all Maine trial courts will be by telephone or video, including discovery or status conferences and non-testimonial hearings in civil cases
- MHRC: minutes of September 20, 2021, Commission Meeting include a reminder that recent amendment to the Maine Human Rights Act will be effective October 18, 2021, including, among other changes, adding “familial status” to protected classes in employment and age to protected classes in public accommodations
- MHRC: November 8, 2021, Commission Meeting Agenda posted
- US DOJ: US Department of Justice and US Department of Education release guidance, “Supporting and Protecting the Rights of Students at Risk of Self-Harm in the Era of COVID-19”
Saturday, September 18, 2021
- US District Court ME: The court denied corrections officers’ motion to dismiss (on qualified immunity grounds) county jail inmate’s Fourth Amendment Right to privacy claim against them (male and female) for remaining in a delivery room and observing plaintiff’s naked body during the course of her twenty hours of labor when they had no readily apparent penological justification or exigent circumstances for being there because, although there were no court cases clearly establishing the particular right at issue, its contours were nevertheless sufficiently definite in light of the clearly established right to privacy, right to shield one’s naked body from view from members of the opposite sex, and right not to have one’s genitals exposed to onlookers; and because it was bolstered by the Maine statute, 30-A M.R.S. § 1582, that provides, in part, that “[w]hen a prisoner or juvenile is admitted to a medical facility or birthing center for labor or childbirth, a corrections officer may not be present in the room during labor or childbirth unless specifically requested by medical personnel”; but the court dismissed the inmate’s claims arising out of being handcuffed when she was thirty-five weeks pregnant and walked across a parking lot because a due-process constitutional right not to be handcuffed while pregnant was not clearly established (although the right not to be handcuffed during labor is clearly established) and there is no private right of action under § 1582, which also prohibits a jail from using restraints on a prisoner known to be pregnant
- First Circuit: In reversing summary judgment for employer on Maine Human Rights Act disability and Whistleblowers’ Protection Act claims, the court held, in part, that plaintiff’s reasonable accommodation request for a modified work schedule of being allowed to miss work to attend medical appointments was distinguishable from the Law Court’s 2017 decision, Carnicella v. Mercy Hosp., which held that leaves of absence were unreasonable requests for accommodation as a matter of law in light of a since-rescinded provision in the Maine Human Rights Act (although the provision was in force at the time at issue in the First Circuit case)
- US District Court ME: Summary judgment for employer denied on physician practice manager’s Maine Whistleblowers’ Protection Act claim where doctor he reported had engaged in FMLA fraud and opioid overprescribing expressed concerns about him that apparently contributed to his termination, despite the fact that practice manager’s reports may have been self-serving (made to make his job easier) and more than a year had passed since the reports
- US District Court ME: On motion for reconsideration, Magistrate Judge left unchanged his prior protective order allowing plaintiff to defer the production of recorded interviews of certain witnesses until after their depositions in order to preserve the impeachment value of the recordings
- US District Court ME: Summary judgment granted on defamation claims because plaintiff, the former Chief of the Department of Podiatry at VA Togus, was a public figure and there was no evidence of actual malice
- US District Court ME: Summary judgment for the Department of Veterans Affairs denied on Title VII retaliation claim (but granted on underlying discrimination claims) because plaintiff showed sufficient evidence of protected activity (including informal complaints), causation (based on timing), and that the proffered reasons for adverse action were pretext for unlawful retaliation
- Maine Human Rights Commission: September 20th Agenda and Consent Agenda published
- Maine Human Rights Commission: The Commission will hold remote-only meetings until further notice
