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, July 11, 2020
- US Supreme Court: “Ministerial exception” shields two Catholic schools from liability for disability and age discrimination against two elementary school teachers
- Sixth Circuit: Plaintiff plausibly alleged that her abnormal pre-cancerous cells and genetic mutation that contributed to abnormal cell growth was a protected disability under the Americans with Disabilities Act, even thought a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA (plaintiff did not bring a claim under the Genetic Information Nondiscrimination Act)
- Law Court: oral arguments set for July 15th include Cum-18-445, which will decide whether Superior Court erred in ordering hospital in medical malpractice action to produce redacted medical records of fifty nonparty patients who had undergone procedures similar to the one plaintiff underwent
- MHRC: The Commission is accepting filings/submissions by e-mail (subject to three conditions) during coronavirus pandemic
- Maine DOL: Unemployment recipient work search waiver for workers temporarily laid off from their jobs, and who expect to return to them, now runs through September 5
Saturday, June 27, 2020
- US Supreme Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
- EEOC: Newly released data visualizations of previously existing enforcement data includes that Maine is tied with Idaho for having the lowest number of charge receipts per 10,000 population (.5) in FY 2019; and that nationally between FY 2015 and 2019 claims for sexual harassment increased by 10.1%
- US District Court ME: Summary judgment denied on disability discrimination claim that town unlawfully required psychiatric clearance before police officer returned to a light-duty position where town’s health provider who recommended the assessment may have only contemplated the need for the assessment if the officer were returning to full duty
- US District Court ME: Magistrate Judge recommended dismissal of Maine Human Rights Act claim against owner of business because he was not plaintiff’s “employer” (i.e., no individual liability); dismissal of part of Maine Whistleblowers’ Protection Act claim that plaintiff’s refusal to follow employer’s allegedly illegal directive was a “report” of illegal activity (subject to the lesser standard of only needing a reasonable belief of illegality rather than actual illegality); denial of dismissal of other aspect of WPA claim that refusal to provide employer-requested false statement to employer was WPA-protected activity because it was actually illegal fraud or fraud on the court; and dismissal as moot of § 631 claim for late production of personnel file where § 631 only provided injunctive relief–only the Maine Department of Labor may collect the up to $500 civil forfeiture for being late
- US District Court ME: Motion for leave to implead third party without explaining reason for delay denied where doing so would cause undue delay and prejudice plaintiff
- EEOC: Updated COVID-19 guidance states that the ADA does not allow employers to require antibody testing for employees to re-enter the workplace
- MHRC: August 10, 2020, Agenda and Consent Agenda posted
Saturday, June 13, 2020
- US District Court ME: Temporary restraining order for change in prison’s response to COVID-19 denied on claim by inmates alleging Eighth Amendment violations and violations of the Americans with Disabilities Act and the Rehabilitation Act who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19; court would instead move quickly with the request for a preliminary injunction
- EEOC: Updated guidance on COVID-19 includes (D.13) that “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure”
- US DOL: FAQ on COVID-19 includes that OSHA’s personal protective equipment standards do not require employers to provide cloth face coverings to workers
- Law Court: In reach and apply action, insurer was not liable for $428,071.64 negligence judgment under policy making insurer liable for damages “caused by an accident that involves a vehicle,” where insured drove intoxicated and delusional friend in truck covered by the policy to plaintiffs’ home where friend broke into home and caused property damage and personal injuries
- Law Court: Remote video oral argument on June 24th includes appeal in Ken-19-406, which will address whether incident in which father heard but did not see construction materials falling from truck and killing son meets the “contemporaneous perception” factor in a negligent infliction of emotional distress claim
- US District Court ME: Motion to dismiss Title VII and Maine Human Rights Act claim for failure to allege administrative exhaustion denied because Title VII contains no exhaustion requirement and, while the MHRA does, the better course was to allow plaintiff time to amend complaint to allege MHRA exhaustion
- US District Court ME: Motion by alleged survivor of sexual assault to proceed under an alias granted after applying Third Circuit multifactor test
- US District Court ME: Motion to dismiss § 1983 claims denied where former student who alleged he was sexually assaulted by teacher stated claims against school district and assistant principals under state-created danger and failure to train and supervise theories
- MHRC: Minutes of June 8th (Zoom) Commission meeting include that the renovation of 19 Union Station is complete and the Commission will move back on June 22
- EEOC: Volume 1 of the Fiscal Year 2020 Digest of EEO Law includes the EEOC’s Annual Compilation Issue, summarizing noteworthy federal sector decisions from fiscal year 2019
Friday, May 22, 2020
- EEOC: Updated guidance on COVID-19 and non-discrimination laws includes answer to the questions: G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?
- MHRC: Minutes from the Commission’s May 4th meeting include description that the Commission continues to operate and investigate cases despite COVID-19, with adjustments made to operate mostly electronically/remotely and with many extensions of time and accommodations; staff mostly working at home; someone being in the office part of every day to receive mail and packages and scan them to other staffers for handling; and the Commission holding off on issuing administrative dismissals as much as possible due to concerns about limited court access during the pandemic
- US District Court ME: Mandamus action (and accompanying declaratory judgment action) against district attorney for due process violation dismissed as untimely where 30-day time limit in Maine Rule of Civil Procedure 80B applied because district attorney had twice refused to hold a hearing on plaintiff’s request (making it a “refusal to act” rather than a “failure to act” scenario, the latter of which would have allowed six months to file from the failure to act instead of 30 days)
- US District Court ME: Summary judgment denied on Maine Whistleblowers’ Protection Act claim where communication channels between recipients of plaintiff’s WPA-protected complaints and decision makers justified inference that decision makers knew of complaints; and close proximity of the last of a long string of complaints and plaintiff’s termination, together with showing of pretext, sufficiently established causal connection between complaints and termination
- US District Court ME: Motion for reconsideration denied where decision to deny defendant’s attorney’s fee application was based on Local Rule 7(a), which does not entitle a fee applicant to a bifurcated fee-shifting procedure that addresses the merits first and the lodestar analysis second; despite Fed. R. Civ. P. 54(d)(2)(C), which provides that a court may “decide issues of liability for fees before receiving submissions on the value of services”
- US District Court ME: Temporary restraining order to prevent former employee from violating his employment agreement by possessing, using, or disclosing former employer’s confidential information denied where, although former employer was likely to succeed on the merits, it did not establish that, absent temporary injunctive relief, it would suffer irreparable harm
- US District Court ME: “While additional steps arguably could have been taken to obtain personal service, the likelihood that [defendant] received actual notice of the summons and complaint as a result of the steps already taken by [plaintiff] justifies service by publication and alternative means in this instance.”
- First Circuit: Summary judgment affirmed for school on disability and age discrimination claims where, in part, requiring school teacher to have a psychiatric exam was justified by its concern that teacher might commit suicide, which would have adversely affected both the young children and school staff
- First Circuit: Summary judgment affirmed for employer on age discrimination claim where, although fired employee satisfied his burden to make out a prima facie case, he could not disprove employer’s legitimate, nondiscriminatory reason for its decision to terminate employee and hire another for a new, consolidated post
- First Circuit: Summary judgment for employer affirmed, in part, on claim that plaintiff was not afforded 21 days to consider release agreement under Older Workers Benefit Protection Act, where argument was unsupported that plaintiff was told he would only have a day or two to sign it
Tuesday, May 5, 2020
- US District Court ME: Interpreting the attorney-client privilege under federal common law, Magistrate Judge held that employer would waive the privilege by offering evidence that it consulted with its attorney prior to deciding to terminate employee: “[W]hen Defendants reveal that the Hospital consulted counsel before Plaintiff’s employment was terminated, the implication is that counsel did not perceive a legal impediment to the termination (i.e., Plaintiff’s conduct did not constitute concerted, protected activity). Defendants’ communication with counsel would thus be in issue for Defendants’ benefit. Plaintiff should have access to the communications to assess whether a challenge to the implication is warranted.”
- First Circuit: Dismissal affirmed on 1983 First Amendment whistleblower claim where plaintiff’s speech was not on a matter of public concern and, even if it were, he failed to plead sufficient facts that it was a substantial or motivating factor in the adverse decisions taken against him
Friday, April 24, 2020
- First Circuit: Summary judgment affirmed for employer on Americans with Disabilities Act claim because, on termination claim, former employee purportedly terminated for violating conduct rule failed to show that she was treated differently from others who were similarly situated; and, on failure to accommodate claim, noting that a “requested accommodation that simply excuses past misconduct is unreasonable as a matter of law [and her requests] would have required forgiveness of her fireable misconduct and a fresh start,” the court held that she nevertheless failed to show that her requested accommodations would have been effective to allow her perform the essential functions of her job
- First Circuit: Summary judgment affirmed for employer on Title VII failure to rehire claim based on race and retaliation
- EEOC: Updated COVID-19 and non-discrimination guidance includes (A.6) that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus”
Saturday, April 18, 2020
- EEOC: Updated guidance on compliance with non-discrimination laws during the COVID-19 pandemic includes (C.5) that an employer may not postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19; and (D.1) examples or reasonable accommodations for those at higher risk
- US District Court ME: Summary judgment for responding police officers granted on claims by victim and families of deceased tenants who were shot by landlord, where alleged omissions and failures to act by police officers did not give rise to US constitutional or state-law claims
- US District Court ME: Summary judgment granted for sheriff who publicized the arrest and supervised the sheriff’s office, and a court officer, on constitutional and state-law tort claims by plaintiff, who was arrested, charged, indicted, and later vindicated
- US District Court ME: Motion to strike amendment to add “actual malice” to defamation complaint granted where new allegations were insufficient to meet the pleading standard
- First Circuit: “Police officers were entitled to qualified immunity for entering through the open door of a house under the community caretaking exception to the Fourth Amendment’s warrant requirement”
- First Circuit: Summary judgment affirmed for supermarket on claim that it failed to protect customer who was murdered by another customer; attack was not foreseeable
- MHRC: May 4th Commission meeting will be via video platform that will provide remote participation for Commissioners, agency staff, and parties and counsel in cases to be heard, and will allow public observation of the proceedings
- Seyfarth Shaw Employment Law Lookout Blog: Post addresses potential whistleblower complaints during COVID-19 epidemic, including whether a refusal to work for reasons related to COVID-19 is “protected activity” under OSHA
Wednesday, April 8, 2020
- US Supreme Court: The federal-sector provision of the Age Discrimination in Employment Act of 1967 that personnel actions “shall be made free from any discrimination based on age” imposes liability when the personnel action is tainted by consideration of age even when age was not the “but-for cause” of the personnel action in question
- First Circuit: “[W]e hold that, under the most recent framework used to evaluate whether established practices with religious content violate the Establishment Clause, the phrase ‘so help me God’ in the naturalization oath as a means of completing that oath does not violate the Constitution”
- First Circuit: On former inmate’s Eighth Amendment claim arising out of attack by other inmates, prison official’s interlocutory appeal from denial of summary judgment based on qualified immunity was dismissed because it rested on factual, rather than legal grounds
- US District Court ME: In granting summary judgment for employer on (removed) Maine Human Rights Act (“MHRA”) disability discrimination claims, court found that attendance was an essential function of “People Greeter” position, former provision in MHRA rendered forgiveness for days of work missed for medical appointments an unreasonable accommodation, and insufficient evidence that former employee was fired for MHRA-protected activity instead of attendance issues
- MHRC: June 8th Commission Meeting Agenda and Consent Agenda posted
Monday, March 30, 2020
- US Supreme Court: In a 42 U. S. C. §1981 action, plaintiff must prove that its injury would not have occurred “but for” the defendant’s unlawful conduct; unlike Title VII, which provides a remedy if the discrimination was “a motivating factor” in the defendant’s decision
- First Circuit: Summary judgment reversed for police department on former police officer’s claim that he was a “qualified individual” under the ADA despite his monocular vision, where established vision requirements for new hires could be different from those for experienced officers, “pursuit driving” was not necessarily an essential job function, and (even if pursuit driving were essential) the fact that one of three of the police department’s doctors felt that monocular vision was not disqualifying from high-speed chases created a genuine issue of material fact
- Maine Department of Labor: Proposed rules posted for public comment on Public Law 2019 Ch. 156, effective January 1, 2021, which guarantees earned time off for employees who work for a business with 11 or more employees (the public comment period will remain open until April 27)
- MHRC: The Commission will not “pause” cases during COVID-19 outbreak but will provide as much flexibility as possible: “A worldwide pandemic is exactly the sort of emergency situation that justifies an exception to our usual “no extensions!” policy”
Monday, March 23, 2020
- MDOL: Unemployment Insurance FAQs Regarding COVID-19 answers questions about Governor Mills’ COVID-19 emergency legislation (LD 2167), which was passed by the Legislature on March 17 and is effective immediately, including that employees laid off by businesses being temporarily partially or fully closed as a result of the impact of the COVID-19 virus are eligible for Unemployment benefits even though they are not looking for work, provided they expect to return to work once the business reopens; employees whose work hours are temporarily reduced in lieu of layoffs are eligible for Unemployment benefits to help offset their loss of income; employees who are out of work due to child care and school closures should apply for Unemployment and determinations will be made on a case by case basis; employers’ continuing to provide health insurance for laid off workers will not impact their receipt of Unemployment benefits; and benefits paid under the emergency legislation will not be charged against the experience rating record of any employer
- US DOL: Guidance documents describe the Families First Coronavirus Response Act, which includes that covered employers must provide (1) two weeks of paid leave for employees who are quarantined, experiencing COVID-19 symptoms, and seeking a medical diagnosis; caring for an individual subject to quarantine; or caring for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19; and (2) ten additional weeks of paid leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (although small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern)
- EEOC: Updated guidance titled, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” includes that, based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard; an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job; employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19, but the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements; an employer may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons; and an employer may require employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) during a pandemic, however, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship
