• 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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In Escriba v. Foster Poultry Farms, the Ninth Circuit Court of Appeals, a federal appellate court in California, held that an employee who takes leave that would qualify for protection under the Family and Medical Leave Act (FMLA) may choose not to have that leave count as FMLA leave. Under the FMLA, employers must permit employees eligible for FMLA to take 12 weeks of leave per year for FMLA-qualifying reasons, such as to care for a child or parent with a serious health condition. According to the Ninth Circuit, an employee can decide to take accrued paid time off (PTO) for a FMLA-qualifying absence and the employer cannot deduct that time from the 12 weeks of FMLA available to her.

Some employer advocates are distressed about the Escriba decision. Many employers prefer to require employees to use their FMLA leave whenever they take leave from work for a FMLA-qualifying reason. These employers want employees to exhaust their FMLA leave as quickly as possible so that they can limit the amount of leave they have to give their employees. If an employee can take PTO to, for instance, care for a parent with a serious medical condition and choose not to have that PTO count against her 12 weeks of FMLA leave, the employee can save her FMLA leave for another time–something many employers don’t want.

While the Escriba decision would seem to help employees, it did not help Ms. Escriba. Ms. Escriba lost her case because she chose not to designate her leave from work to care for a sick parent as FMLA leave and, consequently, the leave was not protected. Thus, the employer was legally permitted to fire her when she violated its “no-show, no-call” policy even though she was on a leave of absence that would have been protected under the FMLA had she chosen to designate it as FMLA leave.

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The U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance today regarding the rights of employees to dress and groom themselves consistently with their religious beliefs. Under Title VII of the Civil Rights Act as well as the Maine Human Rights Act, employers must accommodate employees who, for instance, wear particular types of head coverings or grow facial hair for religious purposes. For instance, for religious reasons, some Jewish people wear yarmulkes, some Sikhs wear turbans, and some Muslims wear beards. Unless an employer can show that it would suffer an undue hardship, it must permit employees to wear religious garb and groom themselves consistent with their religious beliefs.

Among other things, the EEOC’s new guidance makes clear that an employer may not refuse to permit a person to wear religious clothing merely because some of its customers object. For instance, if an employee at a coffee shop wears a turban for religious reasons, the coffee shop may not force him to stop wearing the turban merely to appease the customers.

If your employer has refused to accommodate your religious beliefs, you should contact an experienced employment lawyer to learn more about your rights.

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According to statistics released by the U.S. Equal Employment Opportunity Commission (EEOC) earlier this month, disability discrimination complaints were less common nationwide than some other forms of discrimination complaints. The EEOC received more complaints of race discrimination, sex discrimination, and unlawful retaliation than complaints of disability discrimination. In contrast, the Maine Human Rights Commission’s (MHRC) last Annual Report indicated that disability discrimination complaints are by far the most common type of discrimination complaint in Maine. During the period covered by its last Annual Report, the MHRC received twice as many disability discrimination complaints than the next most common type of complaint.

The high number of disability discrimination complaints filed with the MHRC, relative to other types of complaints, may indicate that disability discrimination is the most prevalent form of employment discrimination in Maine. I say it “may” indicate that disability discrimination is the most prevalent form of employment discrimination because (1) we don’t know the percentage of disability discrimination complaints that had merit and (2) the MHRC’s Annual Report lumps all types of disability discrimination complaints together and does not just report how many were employment related, although the vast majority (73.9%) of complaints the MHRC receives are employment related.

One interesting aspect of disability discrimination is that, unlike some other protected traits like race and sex, a disability sometimes affects a person’s ability to do her job. For instance, an employee with cancer may need an accommodation like periodic medical leave from work to undergo treatment. An employer’s failure to provide such an accommodation to an employee with a disability could constitute disability discrimination. For that reason, it is sometimes easier for a disabled employee to realize that his employer has discriminated against him than it is for an employee to realize that his employer has discriminated against him because of his race, sex, or other protected trait.

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Matthew Barrett, a gay man from Dorchester, Massachusetts, has filed a complaint against Fontbonne Academy because he claims the Catholic school rescinded an offer to hire him as its food services director on the basis of his sexual orientation. He said that when the school learned he had a husband, the head of the school told him that the school would not hire him because he was married to a man.

In Massachusetts, like Maine, employers may not discriminate against applicants on the basis of their sexual orientation. Importantly, for religious institutions, the U.S. Supreme Court has held that the First Amendment requires a “ministerial exception” to all employment discrimination laws, including laws that prohibit sexual orientation discrimination. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that employment discrimination laws could not apply to a religious institution’s decision on whom to employ as a “minister.” The court refused to set forth a test for determining whether a position qualifies as a “ministerial” position but it did hold that the teaching position at issue in that case was ministerial and, thus, the teacher could not bring a discrimination lawsuit against Hosanna-Tabor.

The attorneys who represent Mr. Barrett argue that the food services director position he sought, unlike the teaching position at issue in Hosanna-Tabor, was not ministerial. “Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination,” said Bennett Klein, a senior attorney with Gay & Lesbian Advocates & Defenders (GLAD). “Our laws carefully balance the important values of religious liberty and non-discrimination. When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law.”

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Back in August 2012, we reported on efforts in other states to pass laws that would prohibit employers from demanding that their employees give them access to the employees’ personal email and social media accounts. This debate has now reached Maine and it has received some news coverage.

Rep. Mike McClellan (R-Raymond) has introduced a bill in the Maine legislature that would, among other things, prohibit employers from demanding access to employees’ and applicants’ personal email and social media accounts, such as Facebook accounts. “From my intent, if it’s your own personal Facebook page, you own it and employer doesn’t have the right to that password,” Rep. McClellan said.

The Maine Chamber of Commerce has opposed the bill citing concerns about it hampering workplace investigations, such as sexual harassment investigations. While they may not say so publicly, many employers likely oppose the bill because they want the ability to monitor employees’ private email and social media accounts so that they can see whether employees are disparaging the employer or its management. Many employers also likely oppose the bill because they want the ability to invade employees’ privacy when they take medical leave or collect workers compensation. They want to see whether an employee is “faking” an injury or a health condition in order to get out of work. One’s opinion about this bill likely will depend on whether he or she thinks privacy interests should outweigh employers’ interests to monitor their employees’ personal activity for these types of purposes.

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A Maine Human Rights Commission (MHRC) investigator has reportedly found that the City of Belfast’s Fire and Ambulance Department violated the Maine Human Rights Act (MHRA) when it refused to provide reasonable accommodations to a former employee who had diabetes. The former employee, David Cobb, provided the Belfast Fire and Ambulance Department with a note from his doctor which said that he needed to reduce the number of night shifts he worked for a couple months because those night shifts were contributing to his elevated blood sugar levels. Mr. Cobb did not think the accommodation would impose any hardship on the Fire and Ambulance Department because he only needed to reduce his night shifts for two months.

Rather than grant the accommodation that Mr. Cobb and his doctor said he needed, the Belfast Fire and Ambulance Department sent Mr. Cobb to its own doctor for an evaluation. The Fire and Ambulance Department’s doctor said Mr. Cobb did not need to cut back on his night shifts and could work his regular schedule. The Belfast Fire and Ambulance Department then refused to grant Mr. Cobb the accommodation he requested. Faced with the dilemma of whether he should disobey his doctor’s orders in order to keep his job, Mr. Cobb chose to resign because he did not want to violate his doctor’s orders.

The City of Belfast reportedly argued to the MHRC that Mr. Cobb does not have a disability because there is no medical evidence that his condition limits his life activities or significantly impairs his physical health. This argument should have been immediately rejected because the MHRA definition of disability specifically includes diabetes. In other words, if you have diabetes, you are disabled under the MHRA, period.

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Yesterday, the Maine Human Rights Commission (MHRC) found reasonable grounds to believe that the City of Portland subjected David Tanguay, of Falmouth, to sexual harassment in violation of the Maine Human Rights Act (MHRA). Mr. Tanguay, a former trash collector with the City, alleged that his female supervisor sexually harassed him by, among other things, drawing a penis on his evaluation. After he complained about his supervisor’s harassment, he found that someone had put pornographic DVDs in his locker with notes taped to them, one of which called him a “fag” and another threatened him if he didn’t stop complaining about his supervisor.

The Commissioners on the MHRC sided with MHRC investigator, Barbara Lelli, and the findings in her report. Ms. Lelli concluded that the City of Portland did not do enough to stop the harassment or remedy the hostile work environment when it became aware of what was happening.

As anyone who has gone through it can tell you, working in a hostile work environment where you are subjected to sexual harassment can be incredibly stressful. Even a “big guy,” as Mr. Tanguay describes himself, can suffer extreme emotional distress when his supervisor or co-workers harass him. Sexual harassment violates both Maine and federal law. If you have experienced sexual harassment in the workplace, you should contact an experienced employment lawyer to learn more about your rights.

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Yesterday, the United States Fourth Circuit Court of Appeals, a court based in Virginia, held that an employee was disabled under the terms of the Americans with Disabilities Act (ADA) because of severe injuries he sustained to his legs that were temporary. The employee fell on a train platform and required multiple surgeries to repair the damage to his legs. He was unable to walk normally for seven months but eventually recovered to the point where he could walk normally again. The Fourth Circuit overturned the decision of the trial court which had held that the employee’s leg injury could not be a disability under the ADA because it was temporary.

The ADA was amended in 2008 to make the definition of disability broader. The Fourth Circuit noted that under the old version of the ADA, the employee at issue in this case would not have had a disability because of the temporary nature of his leg injuries.

The Fourth Circuit is the first federal appellate court to address the issue of whether a temporary condition, such as a leg injury, may constitute a disability under the amended version of the ADA. However, the EEOC, which is a federal agency that enforces the ADA, has issued regulations that interpret the ADA’s definition of disability to include temporary conditions. The Fourth Circuit relied heavily on those regulations in its decision and there is a good chance that the First Circuit Court of Appeals, which has jurisdiction over Maine, would do the same with a similar case.

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An investigator with the Maine Human Rights Commission (MHRC) has found that Pan Am Railways violated the disability discrimination provisions of the Maine Human Rights Act (MHRA) when it dismissed a Skowhegan man named David Crockett. According to news reports, Pan Am sent Mr. Crockett for a mental health evaluation when he allegedly barked like a dog at work. Mr. Crockett’s own health care provider cleared him to work but Pan Am wanted Mr. Crockett to see a doctor of its own choice. The company’s doctor said Mr. Crockett would need to see a psychiatrist, a brain specialist, before she would clear him to return to work. Mr. Crockett was told that he would need to see the brain specialist for 12-18 sessions at a rate of $150/hour, which he could not afford. Pan Am refused to pay for the brain specialist and then dismissed Mr. Crockett because he could not pay for the brain specialist to evaluate him and clear him to work.

“The employer cannot shift the burden onto the employee to obtain medical evidence of his or her ability to work safely, nor can the employer shift the cost of the medical evaluation onto the employee,” the MHRC investigator wrote in her report.

Employers must meet a relatively strict standard before they may require an employee to undergo a medical evaluation. Under both Maine and federal law, an employer cannot require an employee to undergo a medical evaluation unless the evaluation is “job-related and consistent with business necessity.” One way an employer can satisfy this standard is if it observes the employee exhibiting symptoms that indicate he may have a medical condition that would impair his ability to do the essential functions of his job or would create a threat to his or another person’s safety. It appears as though that was what the MHRC investigator found happened in Mr. Crockett’s case and, so, Pan Am would not have violated the MHRA by requiring him to undergo a medical evaluation if it had just agreed to pay for it.

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U.S. Senator Elizabeth Warren (D-MA) has introduced a bill that would prohibit most employers from screening job applicants’ credit histories. Senator Warren argues that the bill, which is called the Equal Employment for All Act, is necessary because too many employers refuse to hire applicants with poor credit histories even though those credit histories often have little to do with their ability to do the job. “Extensive research has shown that a family’s poor credit is more often the result of medical bills or unemployment than a mark of someone’s character or ability to perform in the workplace,” said Senator Warren.

According to Warren, “[f]ollowing the financial crisis five years ago, millions of people confronted job loss, shrinking home prices, and depreciated savings. For too many people, the fallout from the crisis also damaged their credit. Today, credit reports are not always accurate, and poor credit disproportionately targets women, minorities, and those already struggling financially.”

A study from the public policy organization Demos supports Senator Warren’s arguments. The author of the Demos study found that credit reports are often based on inaccurate information. Even when the reports are accurate, poor credit is often caused by household unemployment, lack of health insurance, and medical debt–all reasons that have little or nothing to do with whether an applicant would be a good employee.

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