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, 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
Wednesday, August 18, 2021
- Maine Legislature: Public Law 366 (further discussed below in June 27th post), which will become effective October 18, 2021, adds age to the categories protected from discrimination in public accommodations
- OSHA: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace updated to reflect the July 27, 2021, Centers for Disease Control and Prevention mask and testing recommendations for fully vaccinated people, including recommending wearing a mask in public indoor settings in areas of substantial or high transmission
- US Department of Justice: Guidance Concerning Federal Statutes Affecting Methods of Voting posted
- MHRC: August 23rd Agenda and Consent Agenda posted
Sunday, July 25, 2021
- Maine Legislature: Public Law 476, enacted without the Governor’s signature and which will become effective October 18, 2021, adds seeking and receiving a protection from abuse order to the categories protected from discrimination in employment and housing
- Eleventh Circuit: Consistent with all other circuits to decide the issue, the court held that sexual harassment is a form of sex discrimination prohibited by the Fair Housing Act
- First Circuit: Circumstances of case before it did not warrant the court’s adoption of the “single filing rule,” which permits a Title VII or Age Discrimination in Employment Act plaintiff who has not exhausted administrative remedies to join an existing discrimination suit, provided one or more of the named plaintiffs in that suit did exhaust such remedies
- US District Court ME: Cross motions for summary judgment denied on disability discrimination, failure to accommodate, and retaliation claims by former nurse with neurogenic cough (a reaction to fragrances) because, in part, evidence would allow a factfinder to conclude that plaintiff’s neurogenic cough substantially limits her ability to perform multiple major life activities as compared to most people
- MHRC: Attached to August 23rd Agenda is the Commission’s newly adopted Policy Regarding Remote Participation in Public Proceedings of the Maine Human Rights Commission
- MHRC: Minutes from July 19, 2021, Commission meeting include that there were 16 predetermination settlement agreements in the past month totaling $457,000
- EEOC: Press release announced that Wisconsin jury awarded $125 million in punitive damages in disability employment discrimination case in which Walmart changed work schedule of longstanding employee with Down syndrome, failed to act on her reasonable accommodation request to be returned to previous schedule, and then fired her
Sunday, June 27, 2021
- Maine Legislature: Public Law 366, approved by the Governor June 24th, amends the Maine Human Rights Act to, in part, add “familial status” as a protected class in employment and list “gender identity” as a standalone protected class instead of a subcategory of “sexual orientation”
- Maine Legislature: Public Law 348, “An Act To Discontinue the Use of the Terms ‘Handicap,’ ‘Handicapped’ and ‘Hearing Impaired’ in State Laws, Rules and Official Documents,” was signed by the Governor on June 24th
- Maine Legislature: Public Law 337, “An Act To Provide for Remote Notarization,” signed by the Governor on June 24th, continues the effect of Executive Order 37 FY 19/20 as amended by Executive Order 37-A FY 19/20
- Maine Legislature: Public Law 301, signed by the Governor on June 21st, lifts all statutes of limitations for actions based upon sexual acts toward minors regardless of the date of the sexual act and regardless of whether the statute of limitations on such actions expired prior to its effective date
- EEOC: New technical assistance document, “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” provides, in part, that ¶ 10, “if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities”
- HUD: Press release announces that the US Department of Housing and Urban Development will publish in the Federal Register a notice of proposed rulemaking entitled, “Restoring HUD’s Discriminatory Effects Standard,” which proposes to rescind the Department’s 2020 disparate impact rule and restore the 2013 discriminatory effects rule
- HUD: New rule published, “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications”
- MHRC: Minutes of June 14th Commission meeting reflect that the Commission continues to operate mostly remotely per the Governor’s order to continue doing so until July 1
- MHRC: July 19th Commission Meeting Agenda posted
Saturday, June 5, 2021
- MHRC: Webinar describes potential unlawful discrimination issues that may arise under the Maine Human Rights Act involving COVID-19 in employment, public accommodations, housing, and education
- EEOC: Updated COVID-19 guidance includes (K.1) “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations,” (K.3) “under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21,” and (K.4) “the ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination”
- Maine Supreme Judicial Court: Post-Pandemic Management Order-SJC-1 rescinds Pandemic Management Order-SJC-2(B) (relating to electronic filing of criminal motions), but leaves the remainder of PMO-SJC-2 intact, including PMO-SJC-2(F), requiring that depositions shall be conducted via remote means unless there is agreement to be in person, and PMO-SJC-2(G), that attorneys and parties may electronically sign documents filed in court or served on opposing parties unless otherwise ordered
- First Circuit: Summary judgment for employer reversed on age employment discrimination claim where there was “direct evidence” of age discrimination, namely, the decisionmaker stating that employer was terminating plaintiff because it “wanted to ‘rejuvenate’ the team/management/region and lower costs,” which a reasonable jury could construe as an admission that employer decided to terminate plaintiff’s employment because of his age inasmuch as it wanted a younger workforce
- First Circuit: Summary judgment for university reversed on Title VII failure to hire race discrimination claim where plaintiff offered sufficient evidence that the proffered reason for decision to hire arguably less experienced white applicant (that she was more qualified and better suited for the position) was pretextual (because there was evidence that plaintiff, who is Black, was evaluated under different criteria from white applicant) and “the same evidence used to show pretext can support a finding of discriminatory animus if it enables a factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action”
- First Circuit: Dismissal affirmed of due process complaint by fired town police officer against district attorney who allegedly issued a “Giglio” letter concerning officer to the town’s police chief that led to officer’s termination without providing officer meaningful notice and opportunity to dispute those allegations, because, in part, officer did not have a protected liberty or property interest in the district attorney’s charging decisions, decisions regarding what materials are disclosed to criminal defendants during discovery, or decisions as to who to call to testify at trial
- MHRC: Minutes of May 17th Commission meeting include that Julie O’Brien has been sworn in as a Commissioner
Wednesday, May 12, 2021
- Law Court: The court for the first time clearly endorsed civil liability for aiding and abetting another’s tortious conduct, provided 1) the aider and abettor has actual—and not merely constructive—knowledge that the principal tortfeasor is engaged in tortious conduct, and 2) the defendant committed acts constituting substantial assistance in the commission of the underlying tort
- First Circuit: Summary judgement on § 1983 First Amendment claim by firefighter vacated where a jury could find that his unfitness for duty was not the true reason for his firing, but, rather, was as a reprisal for his complaints of discrimination and retaliation; and, with respect to his claims against the individual defendants, his interest in speaking against racial discrimination in the fire department was not outweighed by the town’s interests in the efficient discharge of public services
- US District Court ME: In denying motion to dismiss, the court held, in part, that individual liability exists under § 1981 and an independent contractor may be an “employee” for purposes of the Maine Whistleblowers’ Protection Act
- Fourth Circuit: “[I]t is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position”
- Maine Legislature: Public hearing scheduled before Judiciary Committee for May 14th on LD 1688, which would amend the Maine Human Rights Act to, in part, add familial status as a protected class in employment and age as a protected class in public accommodations
- MHRC: May 17th Agenda and Consent Agenda posted
Saturday, April 24, 2021
- First Circuit: Summary judgment affirmed for police department and police chief on detective’s First Amendment speech-retaliation claim because defendants met their burden to prove an independent non-retaliatory basis for detective’s discipline in that they would have taken the actions despite his protected speech and detective provided no evidence of pretext
- MHRC: Minutes from April 12, 2021, Meeting include that there were 39 settlements with over $1.4 million in payments to Complainants over the past quarter
- Maine Legislature: Public hearing scheduled for April 29th before the Judiciary Committee on LD 1416, An Act To Limit Qualified Immunity of Law Enforcement Officers in Maine Civil Rights Act Claims
- Maine Legislature: Public hearing scheduled for April 30th before the Labor and Housing Committee on LD 965, An Act Concerning Nondisclosure Agreements in Employment, which would limit the scope of nondisclosure provisions in pre-employment and settlement, separation and severance agreements
