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.
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
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