Thank you for all your help on [AW's] case. Without you, nothing would have come from it. We will be sending people your way. We hope that we will not need your help again, but if we do you will be hearing from us.”
- J.W., East Machias.We appreciate everything you have done for us. You made this whole process much easier on [P.C.] and me. Words cannot express our gratitude.”
- K.C., Sanford.Thank you for your efforts and hard work in resolving my case. Your leadership and initiatives were outstanding. I felt truly represented, respected and was treated with honesty and integrity. We are grateful for a positive result and grateful for the excellent teamwork!”
- L.D., Portland.I want to thank you and your staff for all you and they did. The professional and compassionate way my case was handled is greatly appreciated. It was a pleasure to do business with your firm and if the need ever arises I will be back in touch. Thank you again.”
- M.H., Bangor.
We wanted to share a powerful editorial from USA Today that drives home how important it is for Maine and the rest of the country to adopt policies that permit workers to take paid parental leave to care for newborn children. Given how painful their experiences undoubtedly were, we applaud the women who wrote the editorial below for sharing their stories.
Voices: If we had parental leave, our sons might still be alive today
By: Amber Scorah and Ali Dodd
Dorney Park, an amusement park in Pennsylvania, recently faced strong criticism for failing to hire a disabled worker with special needs because interviewers found that he did not “fit in.” The disabled worker, Chris Emery, had reportedly worked for Dorney Park the past 12 seasons but this year Dorney Park used a new hiring process and they decided not to hire him. To their credit, after public pressure, Dorney Park has now apparently agreed to offer Emery employment.
Dorney Park’s new hiring process took place in an interactive group setting where interviewers required Emery to write statements to describe himself, read and respond to information about potential encounters with guests, and participate in a group exercise to build a Lego train. Due to his disability, Emery has trouble reading and writing; he also is shy with people he does not know. Unlike past years, Dorney Park did not permit Emery’s mother to accompany him during the interview.
In the past several years, Emery had worked at Dorney Park cleaning restrooms. His mother did not understand what building a Lego train had to do with her son’s ability to clean restrooms. Indeed, it appears that Emery had done a fine job over the past 12 seasons and that is probably why Dorney Park has now offered to let him work there.
There is currently an effort underway to gather support for a ballot initiative that would remove protections for LGBT people from the Maine Human Rights Act (MHRA). Michael Heath, the former head of the Maine Christian Civic League and who has reportedly compared homosexuality to sorcery, is leading the effort to collect signatures to put this issue on the ballot.
“This would really turn back the clock,” says Matt Moonen, the interim executive director of the group Equality Maine. “It would make it legal again to fire someone from their job or deny them housing or kick them out of a restaurant simply because of who they are.”
Heath’s proposed legislation would amend the MHRA so that it no longer prohibited discrimination based on sexual orientation. His proposed legislation would also prohibit granting “special rights” (whatever that means) to a person based on their sexual orientation.
This fall, Mainers will get to vote on whether to increase the state’s minimum wage which currently stands at $7.50/hour. Depending on how Mainers vote, the minimum wage could increase over a period of time to $12/hour in 2020. In cities and states around the nation, similar minimum wage increases are being debated and passed. Today, the legislature of the largest state in the nation, California, passed a law that will raise California’s minimum wage to $15/hour over the next six years.
Those fighting to raise the minimum wage, including the Maine People’s Alliance, focus on economic fairness arguments. “It’s not right that a single mother of two can work full time and still not make ends meet for her family,” says the Maine People’s Alliance. This argument certainly seems to be resonating around the country as states and cities raise the minimum wage.
Opponents to minimum wage increases often argue that increasing wages will hurt workers because employers will hire fewer people if they have to pay them more and employers will have to lay off workers because of increased labor costs. Economists have debated this point for decades. Studies have shown that minimum wage increases do not harm workers and businesses like opponents claim. When employers face mandates to increase wages, they can often absorb increased labor costs because of increased productivity from workers who are motivated to work longer and harder due to higher wages. Increased wages also tend to decrease employee turnover which is another boost to productivity. Furthermore, when the minimum wage increases, low-wage workers can afford to pay more for goods and services which means that employers can increase prices in order to bring in the additional money needed to pay the increased minimum wage.
A recent research study has cast doubt on the theory that the unemployment rates of minorities will decrease if employers cannot screen applicants by credit history. There has been discussion among lawmakers around the country about legislation that would prohibit employers from considering credit history when they hire employees. Some places have already passed such laws. A bill has been debated in the Maine legislature in recent years that would place limits on when employers could consider credit history. The rationales for such legislation are normally (1) minority applicants, particularly African American applicants, tend to have worse credit than white applicants and/or (2) credit history is a poor indicator of how good of an employee an applicant will be and, thus, it does not make sense to let employers access applicants’ private financial information. However, this recent study, performed by an economist from the Federal Reserve and a professor from Harvard, shows that minority employment rates actually decreased in states that instituted bans on credit history checks. So, what gives?
To understand these results, one of the researchers who conducted the study explained that “employers have many screening measures to narrow down who they want to hire” and “if you take one away, they’ll put more weight on the others.” When a law eliminates one screening method, such as credit history, employers put greater emphasis on other screening methods. Employers use credit history as a proxy for personality traits such as trustworthiness. Without credit history as a proxy, some employers may just fall back on impressions gleaned from interviews where unconscious bias against minorities can more heavily influence hiring decisions.
Does this mean that legislators should not pass laws that prohibit consideration of credit history in hiring decisions? Not necessarily. There is still ample evidence that credit history is a poor indicator of whether an applicant will be a good employee and, thus, it is unnecessary for employers to intrude upon applicants’ private financial information. With respect to minority employment, this study shows that unless other measures are taken to combat systemic barriers to minority employment, just focusing on the disparities in credit histories will not improve minority employment and, at least according to this study, might make it worse.
A new internet company named Blendoor has developed an app that will hide the names and photos of job seekers from employers in order to lessen the effect of unconscious bias on hiring decisions. It is well established that everyone harbors biases against certain groups of people and those biases influence our decisions on an unconscious level. Social scientists have studied and tested this phenomenon for decades. If you don’t believe in the pervasiveness of unconscious bias, you should check out some of the tests that measures unconscious bias called implicit association tests (IAT). IAT shows that even people who strongly believe that they have no discriminatory biases do harbor biases that affect their decision making on an unconscious level.
We have reported on a variety of studies which show statistically significant differences in the ways that certain types of job applicants face discrimination based on religion, age, and sexual orientation. Other studies have shown similar results with respect to sex and race. Blendoor’s founder, Stephanie Lampkin, believes that hiding information that indicates applicants’ genders and races can lessen the disparities in hiring rates for people of color and women. Lampkin also believes that women and people of color will be more comfortable creating profiles on Blendoor than other platforms, such as Linkedin, where job seekers’ names are visible and employers often expect to see applicants’ photos.
Blendoor’s methods sound like they may help lessen disparities but they are unlikely to eliminate disparities. Blendoor is designed for the tech industry and employers in that industry will likely interview applicants before hiring them. If that interview process is not carefully crafted to mitigate the effects of unconscious bias, that bias will likely still impact a significant number of hiring decisions. Furthermore, many employers rely on information about applicants’ criminal histories, credit histories, and employment histories to make hiring decisions. African American and Hispanic applicants are statistically more likely to have problematic criminal histories, credit histories, and/or employment histories than white applicants. For example, a disproportionate number of African American and Hispanic people get arrested for and convicted of crimes as compared to white people. These disparities in criminal histories, credit histories, and employment histories are also due, in part, to unconscious bias. Thus, when employers rely on these types of histories, the societal problem of unconscious bias can still create disparities in the hiring process unless an employer takes steps to correct for this unconscious bias.
The Maine Department of Labor (MDOL) recently issued a report on the results of employers’ drug testing programs in Maine during 2015. Under Maine law, unless federal law requires an employer to drug test, employers who want to test applicants or employees for drugs must submit their drug testing plan to MDOL for approval. Every year, MDOL issues a report on the results of those drug testing plans it has approved.
In 2015, the percentage of positive results reached a record high of 5%. The vast majority of those positive results stemmed from positive tests for cannabinoids, which include marijuana. The results varied across industries and also based on whether the tests were conducted on applicants as opposed to current employees. For instance, in the retail industry 6.2% of drug tests were positive while in the construction industry 3.8% of drug tests were positive. A higher percentage of drug tests administered to employees were positive as compared to applicants because employers less commonly test current employees and many times only test current employees when they have reason to believe that the employee is using drugs.
The fact that cannabinoids were, by far, the drug most commonly found in the drug tests is interesting given Maine’s medical marijuana laws. In Maine, it is legal in some instances for people to use marijuana for medicinal purposes. The MDOL report does not indicate how many of these positive cannabinoid test results came from people who were using marijuana legally under Maine law.
Today the Massachusetts Supreme Judicial Court issued a ruling which clarified how Massachusetts courts should determine whether a jury could reasonably determine that an employer acted with a discriminatory motive. The court held that a jury could reasonably determine that an employer acted with a discriminatory motive if the employee presents evidence that the employer’s asserted reason for its actions was not the true reason. In other words, the court held that an employee does not need to present direct or “smoking gun” evidence that an employer acted with a discriminatory motive in order to prevail.
In the modern day workplace, “smoking gun” evidence of a discriminatory motive, like an email to an employee saying “I’m not promoting you because you’re a woman,” is usually not available. People are smart enough to hide their discriminatory biases. Indeed, many people cannot even admit to themselves that they are acting with discriminatory biases. For these reasons, juries in employment discrimination cases often have to determine whether they can infer a discriminatory motive based on evidence which casts doubt on the employer’s asserted reason for its actions against the employee. This ruling from the Massachusetts Supreme Judicial Court will permit more juries to perform this role instead of allowing judges to do it.
The approach that the Massachusetts Supreme Judicial Court has taken respects the place of juries in the civil justice system. The jury system is a democratic check on the judiciary. Rather than giving judges all the power in the judicial system, like some countries do, the United States places some judicial power directly in the hands of citizens who serve on juries. In cases where the parties have a right to a jury trial, the jury is supposed to serve as a fact finder that determines which facts to believe and decide which party should win the case based on those facts. A classic factual determination that juries should perform in employment discrimination cases is determining whether an employer had a discriminatory motive for its actions. The Massachusetts Supreme Judicial Court’s ruling helps to ensure that juries get to perform this fact finding role in employment discrimination cases.
The Town of Amherst, Massachusetts, reportedly settled a disability discrimination claim brought by a former employee with multiple sclerosis (MS). The former employee, Ellen Bokina, worked for Amherst as a sanitarian and environmental health coordinator until Amherst fired her in August 2009. Amherst fired her a year after she filed a workers compensation claim due to injuries she sustained when she fell and six months after Amherst learned, through a medical exam, that she had MS. Ms. Bokina alleged that the Amherst Town Manager, Laurence Shaffer, commenced “a campaign of slander and discrimination” against her after he learned about her MS. She further alleged that Mr. Shaffer told Amherst’s former health director that he never should have hired Bokina.
The Massachusetts Commission Against Discrimination (MCAD) investigated Ms. Bokina’s claims and found probable cause to believe that Amherst and Shaffer had discriminated against Bokina because of her disability. Amherst settled the case for $195,000 broken down as follows: $40,000 for lost wages, $16,000 for lost benefits, $56,000 for emotional distress damages, and $83,000 for legal fees and expenses. Because Amherst was insured, however, its insurance covered all but $7500 of the settlement.
There are some elements to this case that are relatively common in disability discrimination cases. Amherst’s alleged motivation for terminating Ms. Bokina seems to have been linked to her workers’ compensation claim and the potential for her to file additional workers’ compensation claims in the future because of her MS. MS has the potential to weaken a person’s limbs and adversely affect her coordination. Thus, Amherst may have thought that the risk of Ms. Bokina falling again was too high. These fears that disabled people will file workers’ compensation claims sometimes motivate employers to discriminate against them.
Last month the Maine Human Rights Commission (MHRC) issued new guidance for schools regarding the rights of transgender students. The MHRC had hoped to issue formal regulations but Governor LePage blocked that effort. The new MHRC guidance explains how schools are supposed to approach the issues of transgender students’ restroom and locker room access as well as participation in athletics. The MHRC issued more limited guidance in 2013 for employers who employ transgender employees. This new guidance for schools may also help clarify the MHRC’s position in the employment context.
(The MHRC’s new guidance for schools defines “transgender” as “an umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex/gender they were assigned at birth.”)
The MHRC issued its 2013 guidance for employers in response to a question about whether an employer could require a transgender employee to use the restroom that matches the sex that they were assigned at birth. The MHRC’s guidance stated that employers must reasonably accommodate an employee’s gender identity. Thus, if a transgender woman (a person who has a female gender identity but was assigned the male sex at birth) requests to use the women’s restroom, an employer would probably have to permit her to use the women’s restroom because she has a female gender identity. This 2013 guidance left unanswered, however, how an employer is supposed to know what an employee’s gender identity is. The new MHRC guidance helps to answer that question.
Maine Employment Lawyer Blog