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, September 10, 2015
- US DOJ: New technical assistance issued on testing accommodations for individuals with disabilities who take standardized exams and other high-stakes tests lists as an example that an individual may be entitled to the use of a basic calculator during exams as a testing accommodation
- SCOTUSblog: Lyle Denniston’s summary of the Supreme Court’s November argument calendar includes a reference to an argument on November 2nd in case that will decide whether a technical violation of a federal law, without proof of specific injury, is a basis for a right to sue under Article III
Saturday, September 5, 2015
- Second Circuit: The court held a state employee may bring a retaliation claim under § 1983 against a supervisor who, acting under color of law, retaliates against employee for opposing discrimination in the terms of his employment; and that a § 1983 and Title VII plaintiff is not required to plead a McDonnell Douglas prima facie case
- Eleventh Circuit: The court followed the 1st Circuit (among others) in holding that nothing in the Prison Litigation Reform Act prevents a prisoner from recovering nominal damages for a constitutional violation without a showing of physical injury
- Law Court: In affirming nearly $1.9 million judgment for daughter who Superior Court Justice found had been repeatedly sexually assaulted by her father when she was a child, the court held that evidence that father had sexually assaulted plaintiff’s sister before going to college was properly admitted under Rule 404(b) to show motive and opportunity as opposed to propensity, and negligent infliction of emotional distress claim was supported because a “special relationship” imposed a legal duty on the custodial father to avoid causing severe emotional harm to his daughter through conduct that was sexually and physically assaultive and emotionally abusive
- Law Court: The court found no error in denial of request to call rebuttal witness, where witness was not identified in witness list pursuant to pretrial order (and the need for the witness had been foreseeable) and there was no offer of proof on how the testimony would only be “rebuttal evidence,” meaning evidence that “repels or counteracts the effect of evidence which has preceded it”
- US District Court ME: Following jury and bench trial on § 1983 Fourteenth Amendment claim that municipality deprived tenant of property (tenancy at will) without due process of law, the court held that, while city police improperly ordered tenant to vacate who had not been named in a Forcible Entry and Detainer Action or served with a writ of possession, city was not liable because order had not been made pursuant to an official policy or custom
- US DOJ: New tri-fold pamphlet explaining the rights of persons with HIV/AIDS under the Americans with Disabilities Act and the requirements of the ADA for employers, businesses and non-profit agencies that serve the public, and State and local governments includes statement that a health care provider “[m]ay not refer a patient with HIV or AIDS to
another provider simply because the person has HIV or AIDS” - US DOJ: $140,000 settlement announced in lawsuit alleging that university violated the Fair Housing Act by denying two different students with psychological disabilities requests to keep an emotional support dog with them
- Portland Press: Parents’ lawsuit says Maine DHHS failed to protect children from abuse in Lyman day care center
- Kennebec Journal: Winthrop woman sues Wal-Mart over denial of health benefits for wife in 2013
Wednesday, September 2, 2015
- NLRB: In a decision redefining the scope of “joint employer” status, the Board held that it “will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but must also exercise that authority, and do so directly, immediately, and not in a ‘limited and routine’ manner. . . The right to control, in the common-law sense, is probative of joint-employer status, as is the actual exercise of control, whether direct or indirect”
- EEOC: August 2015 edition of federal sector Digest of Equal Employment Opportunity Law includes article, “Gender Identity and Sexual Orientation Coverage Under Title VII Case Law Update: Review of Pre- and Post-Macy Title VII Protections for LGBT Employees”
Saturday, August 29, 2015
- 10th Circuit: The court reversed summary judgment for employer who refused to hire plasma center technician because, it argued, her deafness would have prevented her from safely monitoring donor area because she could not hear the alarms on plasmapheresis machines (they audibly sound when something goes wrong or requires attention), finding genuine disputes of fact as to whether installing visual or vibrating alerts and providing call buttons to donors would have been reasonable accommodations
- First Circuit: The court held that Federal Tort Claims Act claim was untimely because it was filed with agency more than two years after a person similarly situated to the plaintiff would have discovered necessary facts in the exercise of reasonable diligence, despite the fact that it was not until afterwards when plaintiff met with a lawyer for the first time that the necessary basis for the cause of action actually became known to him
- EEOC: Former employee awarded $586,860 in lost wages and benefits and compensatory damages on Title VII claim after he was forced to resign because employer insisted he continue to submit to biometric hand-scanning, which it used to track attendance, even though hand scanning violated employee’s sincerely held religious beliefs as an Evangelical Christian
- Maine DOL: Maine Labor Department provides public comment opposing proposed changes to federal overtime rule
Wednesday, August 26, 2015
- US District Court ME: The court held that attorney communications with defendant school system were privileged and not discoverable, finding that the federal common law applied (because federal claims were alleged) instead of state law, and, even if state law applied, it was “objectively reasonable for the party engaged in attorney-client communication to anticipate” a claim even though none was pending
- MHRC: September 21st Commission Meeting Agenda posted
- Kennebec Journal: Augusta Civic Center worker charges city with gender discrimination
- EEOC: Target to pay $2.8 million to resolve case alleging use of pre-hire employment assessments discriminated based on race, sex, and disability and violated Title VII and ADA
- EEOC: Lawsuit filed alleging employer violated Title VII when it refused to allow an employee to observe his Sabbath and instead terminated him because of his religion
- Maine DOL: Former Governor Paul R. LePage staff member hired as the Director of Legislative and Constituent Services, in which role she will lead response to constituent concerns directed to the department as well as serve as the rulemaking liaison and assist with special projects and operations
Saturday, August 22, 2015
- First Circuit: The court held that Federal Rule of Civil Procedure 68 offers of judgment are irrevocable and neither a rejection nor a counteroffer terminates the offeree’s ability to accept a Rule 68 offer within the fourteen-day period
- Fifth Circuit: The court joined three other circuits in holding that the “cat’s paw” theory may be used to establish “but for” causation in a Title VII retaliation claim, “cat’s paw” meaning when plaintiff cannot show that the decisionmaker harbored any retaliatory animus she can still prove that the person with a retaliatory motive influenced the decisionmaker to take the retaliatory action
- Third Circuit: Applying the plain language in the FMLA regulations, the court held that when a certification for leave submitted by an employee is vague, ambiguous, non-responsive, or incomplete, the employer shall inform the employee of what is required and give seven days to cure; only “negative certifications” may be rejected outright, meaning affirmative statements from a physician that the employee would not miss work (the certification here was not “negative”)
- First Circuit: In reversing and remanding lower court denial of Federal Rule of Civil Procedure 60(b)(3) motion to set aside defense judgment for misconduct based on defendant’s failure to disclose information in response to discovery requests, the court held that it was error to place the burden on plaintiff to prove substantial interference after finding defendants culpably withheld materials that should have been produced; upon a showing of misconduct, the burden shifts to defendant to prove by clear and convincing evidence that the withheld material was inconsequential
- US District Court ME: After considering additional contextual information supplied by inmate in objecting to Magistrate Judge’s recommended decision granting motion to dismiss complaint alleging 8th Amendment violation for failure to provide eyeglasses, the court allowed the complaint to go forward
Wednesday, August 19, 2015
- US District Court ME: In ERISA claim challenging denial of benefits, Magistrate Judge granted, in part, and denied, in part, plaintiff’s request to serve discovery under First Circuit standard that a plaintiff seeking discovery must offer “at least some very good reason to overcome the strong presumption that the record on review is limited to the record before the administrator”
- EEOC: $112,500 settlement reached in case where employer was alleged to have terminated employee with fibromyalgia for being unable to return to work from a medical leave, after refusing her request for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office
- EEOC: $120,000 settlement reached in Title VII retaliation case in which employee was allegedly retaliated against for reporting inappropriate touching by denying her breaks, assigning her difficult work, trying to reduce her wages, denying her advancement opportunities and taking other adverse actions
Thursday, August 13, 2015
- Fourth Circuit: Agreeing with the only other precedential Court of Appeals opinion on the issue, the court rejected the so-called “manager’s rule,” which denies Title VII non-retaliation protection to employees who engage in otherwise protected conduct as a part of their job duties
- First Circuit: The court held that recall provision in collective bargaining agreement was ambiguous on issue of whether former employee had to provide current address as condition precedent to asserting recall right, and it therefore remanded § 1983 denial of due process claim because, under Maine law, discerning the meaning of an ambiguous contractual provision is a task assigned to a factfinder
- EEOC: Following $499,000 jury award in sexual harassment and retaliation complaint against physician outsourcing group, judge entered injunction ordering group to provide and post notice of the trial, judgment, and anti-harassment policies to employees; provide training to its management and non-management employees; maintain records pertaining to sex harassment complaints; and investigate the complaints raised and report such information to EEOC
- US DOJ: New guidance document under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act provides an overview of the issues and application of civil rights laws, answers to specific questions and implementation examples for child welfare agencies and courts, and resources to consult for additional information
Saturday, August 8, 2015
- US District Court ME: The court with reservations granted summary judgment for employer on Maine Whistleblowers’ Protection Act and Maine Human Rights Act retaliation claims based on the First Circuit’s “job duties” exception, observing that once an employer has adopted a policy requiring its employees to report instances of sexual harassment, an employee who witnesses harassment faces a “Catch 22” of reporting it and gaining no protection from retaliation or keeping silent and being fired for failing to comply with the policy
- US District Court ME: The court denied, in part, motion for summary judgment on Americans with Disabilities Act and Maine Human Rights Act claims, finding that an allegation was properly administratively exhausted despite not being included in EEOC complaint because it could reasonably be expected to grow out of it, and sufficient evidence that employer failed to engage in good faith in the interactive process because it did not consider shortening or otherwise modifying its requirement that training take place in the office after plaintiff requested to to work from home
- EEOC: Updated Federal Sector Guidance issued
