• 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.
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Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Pregnancy Discrimination and Related Issues which discusses legal requirements under the Pregnancy Discrimination Act (PDA), Americans with Disabilities Act (ADA), and other federal laws.  According to the new Enforcement Guidance, pregnancy discrimination complaints have been on the rise for years, outpacing the steady rise of women in the workplace.

This new Enforcement Guidance provides additional legal support for pregnant employees who need light duty because of physical restrictions related to their pregnancies.  The Enforcement Guidance makes clear that, under the PDA, if an employer permits employees with physical restrictions similar to a pregnant woman to have light duty, it must give light duty to pregnant employees as well.  For instance, if an employer gives light duty assignments to employees with lifting restrictions due to on-the-job injuries, it will need to provide light duty assignments to pregnant employees who have those same lifting restrictions.

According to the Enforcement Guidance, the ADA entitles pregnant employees who suffer from some pregnancy-related medical impairments to reasonable accommodations.  For instance, an employer may have to permit a modification to an employee’s work schedule in order to accommodate her if she has a pregnancy-related medical impairment. The Enforcement Guidance offers the following example of such a situation:

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The Maine Employee Rights Group (MERG) has filed a lawsuit against Huhtamaki, Inc.  The lawsuit alleges that the company discriminated against MERG’s client Barry Kot because he has epilepsy and retaliated against him because he spoke out against the company’s discrimination.

Huhtamaki is a large Finnish corporation with about 14,400 employees and operations all over the world.  It manufactures consumer and specialty packaging.

In August of 2013, Huhtamaki offered Mr. Kot a job as a Machine Operator at its Waterville location.  Mr. Kot was well qualified for this job having worked as a machine operator for another company between 2007 and 2012 and doing other similar jobs as well.

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Meggan Sommerville, a manager in Hobby Lobby’s Aurora, Illinois store, has filed a lawsuit against Hobby Lobby for gender identity discrimination because she claims that it will not permit her to use the women’s restroom.  For years, she says that her boss has insisted that she cannot use the women’s restroom because she is a transgender woman.  “Hobby Lobby’s taking the fairly absurd position that in order for Meggan to be able to use the female facilities, she has to undergo reconstructive surgery,” her attorney, Jacob Meister, explained.

Sommerville, who has worked for Hobby Lobby since 1998, transitioned from male to female in 2009 and legally changed her name the following year.  For purposes of her health benefits, provided by Hobby Lobby, she is classified as female.  But, when she used the women’s restroom at work, she received a written disciplinary warning.  It is unclear whether Hobby Lobby’s decision not to let Sommerville use the women’s restroom stems from its owners’ decision to run their business consistent with their religious beliefs.

“I’m just looking to be treated equally with every other female in the company—not just in the store, but in the company,” Sommerville said.  “If they recognize me as female for certain things, why can’t they recognize me as female for everything?”

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The Mexican American Legal Defense and Education Fund (MALDEF) and a private law firm represent Ruben Juarez in a first-of-a-kind lawsuit against Northwestern Mutual, an insurance company.  Mr. Juarez was brought to the United States illegally as a child.  However, he has a work permit, a social security number, and he is authorized to live and work in the United States under a program called the Deferred Action for Childhood Arrivals (DACA) law, which is an executive order.  Despite the fact that Mr. Suarez was legally authorized to work in the United States, Northwestern Mutual allegedly refused to hire him because he is not a U.S. citizen and he does not have a “green card.”

In the lawsuit filed against Northwestern Mutual, Mr. Juarez’s attorneys have expressed that they intend to pursue the case as a class action on behalf of persons who are legally authorized to work in the United States, but who were denied the right to work by Northwestern Mutual at any time since July 9, 2010, because they are not citizens or permanent residents (“green card” holders).

Victor Viramontes, of MALDEF, said, “this lawsuit should serve as a warning that employers cannot pick and choose which verification documents or residency histories they will accept from prospective employees who are otherwise excellent employment candidates and meet their obligations under the law.”

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Fifty years ago, in July 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law.  Through this landmark piece of legislation, the federal government sought, among other things, to dismantle abhorrent “Jim Crow” laws in the South which rendered African Americans second class citizens.

A strong minority of legislators in Congress fought bitterly to try to defeat the Civil Rights Act.  They argued that the Civil Rights Act would unconstitutionally usurp state rights and impair individual liberty.  Thanks, in part, to the work of civil rights activists like Dr. Martin Luther King and John Lewis, who helped the entire nation and its members of Congress to see the horrors of segregation and Jim Crow, enough members of Congress banded together to pass the law.

Interestingly, before the Civil Rights Act passed, opponents to the law added an amendment to bar sex discrimination in employment.  This tactic backfired.  Title VII of the Civil Rights Act, which prohibits employment discrimination, passed with not only landmark protections against race discrimination, religious discrimination, and national origin discrimination, but also with landmark protections against sex discrimination.

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The astonishing answer to this question is, sometimes, yes; an employer can sometimes get away with firing an employee for reporting unlawful activity if that employee’s job duties required him to report the unlawful activity.  In Winslow v. Aroostook County, the U.S. First Circuit Court of Appeals interpreted one section of the Maine Whistleblower Protection Act (MWPA) to allow employers to discriminate against employees who blow the whistle on unlawful activity “if it is part of his or her job responsibilities to” blow the whistle.  Maine’s Supreme Judicial Court, which has the final say on what the MWPA prohibits, has not yet weighed in on this issue, however; and other sections of the MWPA may provide more protection for employees than others.  Nevertheless, court decisions like Winslow are troubling.

In other states, courts are split on this issue.  In New Jersey, one appellate court has held that New Jersey’s whistleblower protection law prohibits employers from discriminating against employees who blow the whistle on unlawful activity if their job duties require them to do so.  Another New Jersey appellate court went the opposite way.  There has been a large amount of public debate over this issue in New Jersey and the New Jersey Supreme Court will likely settle the issue in a case it has agreed to hear this fall.

It does not make much sense to permit employers to discriminate against employees who blow the whistle when, by blowing the whistle, they’re just doing the job their employer hired them to do.  Such a rule places these employees in an untenable Catch-22 situation.  If they don’t blow the whistle on their employer’s unlawful activity, they can get fired for not doing their jobs.  At the same time, if they do blow the whistle on their employer’s unlawful activity, they can get fired in retaliation.  Moreover, from a public policy standpoint, we want to encourage whistleblowers to report unlawful activity, whether it is their job to report it or not, because that is the way unlawful activity is brought to light and stopped.  Permitting employers to retaliate against any whistleblower undermines this public policy goal.

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A group of sociologists recently conducted experiments in New England and the Southern United States to determine whether the inclusion of a religious identifier on a resume affected an applicant’s chances of getting hired.  The sociologists found that applicants who included a religious identifier on their resumes decreased their chances of getting hired both in New England and in the South.

The experiment entailed sending out thousands of resumes with identical qualifications but with different indicators of the applicants’ religious beliefs.  For instance, some of the resumes said that the applicant had been a member of his university’s association of Catholic students.

In New England, the sociologists found significant levels of discrimination against Muslims and, to a lesser extent, atheists, pagans, and Catholics. However, on the whole, the sociologists found that the level of religious discrimination in New England is relatively low.  They thought this relatively low level of discrimination was likely because of New Englanders’ relatively low level of religiosity and high amount of religious tolerance.

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Senator Susan Collins (R-ME) has proposed legislation, supported by a group of trucking and business organizations, that would freeze some new federal regulations designed to address the problem of truckers driving without enough sleep.  Collins believes that these regulations need to be frozen and studied more because she thinks they are leading to unintended safety risks.

The problem of fatigued driving came to the forefront recently in connection with an accident that involved a Wal-Mart truck driver crashing into comedian Tracy Morgan’s car, leaving Morgan seriously injured and another passenger dead.  However, safety advocates have said that the problem has gone on for years.

Mainer Daphne Izer, founder of Parents Against Tired Truckers (PATT) has expressed deep dissatisfaction with Collins’ action. “I have whiplash—one month ago I was in the White House celebrating vital improvements to reduce truck driver fatigue, and now my own senator is using her power as Ranking Member on the THUD Appropriations Subcommittee to undo a rule which will result in more overly tired truckers on our roads,” said Izer.

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Last week, the City of Houston, Texas, passed an ordinance that prohibits employers from discriminating on the basis of sexual orientation and gender identity.  Houston is the fourth largest city in the nation, with a population much larger than the entire state of Maine.  Under Texas state law and federal law, sexual orientation and gender identity are not protected characteristics.  Thus, for LGBT people who work in Houston, this new law provides important protections that they did not previously have.

The Houston City Council voted 11-6 in favor of the law.  Opponents and proponents of the law were very vocal in advocating their positions.  The City Secretary could not recall a longer list of speakers who wanted to testify before the Council in her six decades serving as Secretary.  Many opponents of the ordinance invoked their religious beliefs and they vowed to gather enough signatures to place a referendum on the ballot before next election in order to repeal the ordinance.

Houston’s mayor, Annise Parker, is openly gay and she has an openly gay son.  “This is not the most important thing I have done or will do as mayor, but it is the most personally satisfying and most personally meaningful thing I will do as mayor – not just for myself, but for my children and for all the other mothers’ children out there who have an opportunity to have redress if they are discriminated against here in the city of Houston,” Mayor Parker said.

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The U.S. Sixth Circuit Court of Appeals considered this question earlier this month in Bacon et al. v. Eaton Corp. et al. The Bacon case involved shift supervisors who claimed that they did not receive overtime pay when they worked more than 40 hours per week.  Under the federal Fair Labor Standards Act (FLSA), employers generally must pay all employees who work more than 40 hours in a week overtime pay, which is time-and-a-half the employee’s regular rate of pay for the hours he works over 40 in a week. There are exceptions to this general rule; and one of these exceptions is for “executive” employees, which are employees who primarily perform managerial functions.

The shift supervisors in Bacon argued that, even though Eaton Corp. designated them as managers, they did not actually perform managerial functions.  The court looked to federal regulations from the U.S. Department of Labor to determine whether these shift supervisors performed managerial functions.  Under those regulations, an employer must satisfy a four-element test before it may decide not to pay a managerial employee overtime pay.  The employer must show that (1) the employee is compensated on a salary basis at a rate of not less than $455 per week; (2) the employee’s primary duty is management of the enterprise in which he is employed or of a customarily recognized department of subdivision of that enterprise; (3) the employee customarily and regularly directs the work of two or more other employees; and (4) the employee has the authority to hire or fire other employees or his suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight.

The court found that Eaton Corp. failed to establish that the shift supervisors had the authority described in the fourth element of this test.  Eaton Corp. disregarded the shift supervisors’ personnel recommendations; it provided them with no training on recruiting employees; and the shift supervisors’ job descriptions did not include decision-making regarding personnel.

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