• 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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The U.S. Second Circuit Court of Appeals, in New York, has decided that the full court—all eleven active judges—will consider whether sexual orientation discrimination is a form of sex discrimination prohibited by the Civil Rights Act. If the full Second Circuit decides that sexual orientation discrimination is a form of sex discrimination, it will have to overrule a prior Second Circuit decision that held the opposite.

Normally, panels of three appellate judges decide cases but those three-judge panels are required to follow precedent. They cannot deviate from the decisions that their court reached in earlier cases. When the full appellate court considers a case, however, it can overrule prior precedents and a decision by the full court to hear a case signals that some judges want to consider overruling past precedent.

Federal appeals courts rarely decide to have the full court consider cases. This type of full-court review, sometimes called “en banc review,” is exceedingly rare in the Second Circuit. Thus, the Second Circuit’s decision to hear this case en banc is noteworthy in itself. The Second Circuit, however, is following the lead of the Seventh Circuit which earlier this year ruled en banc that sexual orientation discrimination is a form of sex discrimination.

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In an important decision for transportation workers, the U.S. First Circuit Court of Appeals has held that a trucking company cannot use the Federal Arbitration Act (FAA) to force its truckers to bring their claims against the company in arbitration. As we have previously discussed, companies often force workers to sign arbitration agreements because the arbitration system is stacked in those companies’ favor. When workers forced to sign one of these arbitration agreements file their claims in court, instead of in arbitration, companies often rely on the FAA to get the cases thrown out of court and into arbitration. But in this case, the First Circuit held that the FAA did not apply.

This case involved a class of truck drivers who sued New Prime, Inc. for minimum wage violations. New Prime allegedly engaged in a practice of encouraging truck drivers to become “independent contractors” instead of employees of the company. One of the issues in this case is whether the truck drivers were, actually, independent contractors or were employees. If they were employees, the federal Fair Labor Standards Act (FLSA) would entitle them to minimum wage; but if they were independent contractors, FLSA would not cover them.

The FAA does not apply in cases involving transportation workers and, thus, companies cannot use the FAA to force cases brought by transportation workers into arbitration. New Prime argued that the exemption for transportation workers only applies to cases involving employees and does not apply to cases involving independent contractors. New Prime also argued that an arbitrator, instead of a court, should decide whether the FAA applied to this case. The First Circuited rejected both of New Prime’s arguments.

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We previously reported on the Maine legislature’s consideration of a bill intended to lessen the gender pay gap in Maine. That bill, entitled “An Act Regarding Pay Equality,” has now received support from the majority of the legislature’s Labor, Commerce, Research and Economic Development Committee. It will now head to the Maine Senate for a vote.

The Act Regarding Pay Equality would strengthen the law against pay discrimination in two important ways. First, the bill would state that employers may not try to obtain information about a prospective employee’s wage history until after offering a compensation package to the prospective employee. As we previously explained, this part of the bill would help to prevent the effects of wage discrimination from following an employee from one job to another. Second, the bill would require employers to allow employees to share information about their own wages and other employees’ wages. This part of the bill is important because, without information about the wages other employees make, workers often do not know that they are victims of pay discrimination. In some situations it is already illegal for employers to prohibit the sharing of wage information but this bill would expand that prohibition and provide extra protection for workers.

Among New England states, Maine has the second highest gender pay gap. According to the National Partnership for Women & Families, in Maine women earn 22% less than men. Only New Hampshire has a bigger gender pay gap in New England. As we previously reported, other states have enacted legislation similar to this bill. Given the large gender pay gap in Maine, as compared to other New England states, it makes sense to pass legislation that could decrease the gap.

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Yesterday, the Maine Employee Rights Group (“MERG”) secured another victory for our client in a federal case against Woodlands Senior Living of Brewer (“Woodlands”). As we previously reported, a Bangor jury found that Woodlands unlawfully discriminated against our client because she needed medical leave for a disability. The jury awarded our client $15,000 in back pay and, yesterday, the judge awarded our client an additional $15,000 plus interest (for a total of $30,000 plus interest) because Woodlands failed to prove that it acted in good faith when it violated our client’s rights.

In addition to awarding our client another $15,000, plus interest, the judge ordered Woodlands to change our client’s personnel records so that they indicate that Woodlands unlawfully terminated her for discriminatory reasons. The judge also ordered Woodlands to submit documentation proving that it trained its managers on the law and Woodlands’ policies regarding disability discrimination and employee family medical leave entitlements.

Because MERG prevailed in this case, Woodlands will also be required to pay attorney fees to MERG for our work on this case. The court has not yet issued a ruling on the amount of attorney fees that Woodlands will have to pay MERG.

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police-37625_640-211x300Last month, the Massachusetts Supreme Court held that a jury could reasonably determine that the Boston Police Department (BPD) discriminated against one of its police officers, Sean Gannon, because he has disabilities related to a brain injury. Gannon suffered the brain injury from his experience competing in mixed martial arts (MMA) professional fights. His brain injury resulted in impairments such as sleep apnea, speech problems, and difficulty focusing. Due to these impairments, BPD removed Gannon from patrol duty and placed him on desk duty.

Gannon underwent treatment for his brain injury and his condition improved over time. Eventually, multiple doctors cleared him to return to patrol duty. To reach their decision, these doctors relied on, among other things, the results of a simulated job test that Gannon successfully completed. This simulated job test included a “shoot/don’t shoot” target practice drill and other simulated police officer tasks. Despite Gannon’s ability to complete the simulated job test and the clearance he received from his doctors, BPD continued to refuse to return him to patrol duty. As a result, he sued BPD for disability discrimination.

The Massachusetts Supreme Court held that Gannon had enough evidence to persuade a reasonable jury that he could perform the essential tasks of patrol duty and that BPD violated his rights when it refused to return him to patrol duty. The court sent the case back to the trial court for a trial. At trial, the case will likely hinge on which side wins the “battle of the experts.” Gannon will present expert testimony that he was capable of performing patrol duty and BPD will present its own expert testimony to the contrary.  Gannon’s own testimony will probably also be key.  The jury will likely factor in how well Gannon testifies when they determine whether he can perform the essential functions of patrol duty.

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The U.S. First Circuit Court of Appeals recently held that a disability discrimination lawsuit should be dismissed because the employee who filed the case failed to provide her employer with sufficient information to support her request for a reasonable accommodation. This case illustrates one of the pitfalls that employees with disabilities face and should serve as a cautionary tale for workers with disabilities.

The employee in this case, Ms. Ortiz-Martinez, worked as a social worker for a health care service provider named Fresenius. During the course of her employment, Ortiz-Martinez suffered a hand injury and required medical leave from work while she received treatment. Eventually, her doctor cleared her to return to work while she continued to receive treatment for her injury.  Her doctor provided her with a note for Fresenius that described the injuries she suffered, which included a sprain and carpal tunnel syndrome. However, the note did not describe, with particularity, Ortiz-Martinez’s physical limitations or what accommodations she needed.

Fresenius asked Ortiz-Martinez to provide further information about how her injuries limited her physical capability so that they could determine what accommodations were necessary. Fresenius would not let her return to work until she provided it with this information. So, Ortiz-Martinez got a new note from her doctor. The new note elaborated on Ortiz-Martinez’s physical limitations but it still did not say what accommodations she needed. After several more unsuccessful attempts to get information on the accommodations that Ortiz-Martinez required, including a request made directly to her doctor, Fresenius fired her.

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Earlier this month, New York City joined a growing group of cities and states that have outlawed the practice of asking job applicants how much money they earned in their previous jobs. Massachusetts and California enacted similar laws last year and Maine as well as Colorado, Connecticut, Illinois, Maryland, Montana, New Jersey, Pennsylvania, and Texas are considering similar bills. New York City and these other states and cities have passed these laws in order to combat the persistent gender pay gap in the United States that results in women earning less than men.

Laws prohibiting inquiries about pay history are supposed to help combat the gender pay gap because employers often ask applicants about their pay history in order to determine how much pay to offer them. If the applicant faced discriminatory pay practices in the past, those discriminatory practices get perpetuated if future employers rely on the applicant’s previous unfairly depressed pay to set her pay in her new job. This is why the bill under consideration in Maine would make questioning job applicants about their pay history evidence of discrimination.

In testimony before the Maryland legislature, the National Women’s Law Center (NWLC) explained the reason for these laws like this: “if a job applicant’s prior employer discriminated against her in setting her pay below her male counterparts’, or the applicant previously worked in a female-dominated profession where pay is lower precisely because women do the jobs and ‘women’s work’ is undervalued, and the new employer sets her pay based on that prior job’s salary, the pay discrimination that applicant faced in her previous job will follow her, depressing her new wages.”

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application-1883453_1920-300x200Have you ever seen a job posting for a position where the employer only wanted applicants with little or no experience? Companies that look for applicants with little or no experience do so, in some instances, because they believe that applicants with relatively little experience will command a lower salary than applicants with more experience. Because experience usually comes with age, a company’s practice of hiring applicants with little or no experience has a disparate impact on older workers. And this type of disparate impact could be unlawful age discrimination.

“Disparate impact” cases involve employment practices that, on their face, do not discriminate on the basis of a protected category but that, nevertheless, operate in a way that negatively affects a protected group. In Maine, if a company engages in employment practices that have a large enough disparate impact on a protected group, such as older workers, the company can be liable for discrimination if it cannot prove that the practice is “job related and consistent with business necessity.”

In the context of hiring practices, this “job related and consistent with business necessity” standard requires the company to prove that the criteria it uses to select job applicants for hire meaningfully distinguish between well qualified and poorly qualified applicants. If the company can meet this “job related and consistent with business necessity” standard, it could still be liable for discrimination if the applicant could show that there were alternate hiring criteria that would have served the company’s needs just as well but had less disparate impact against the protected group.

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Sexual and other forms of unlawful harassment continue to be one of the biggest problems in the workplace. Responsible employers (i.e. employers who honestly want to prevent harassment in the workplace) take reasonable steps to prevent harassment, such as employee training, prompt investigations of complaints, and appropriate discipline of harassers. We could debate how many employers fall into the category of “responsible employers” but even responsible employers often fail to do everything that they can reasonably do to prevent harassment.

One reason that employers fail to prevent harassment is that employees fear retaliation, having their complaints trivialized, or being labeled as “disgruntled” if they complain. And these fears are justified. According to a report from the EEOC, one study found that 75% of employees who spoke about mistreatment in the workplace experienced retaliation.  For this reason, many employers do not know how prevalent harassment is in the workplace.

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The U.S. Seventh Circuit Court of Appeals has permitted a lawsuit against Home Depot to move forward where the plaintiff alleges that Home Depot’s negligence resulted in one of its supervisors raping and murdering her daughter. The plaintiff’s daughter, Alisha Bromfield, worked in the gardening section of a Home Depot store in Illinois. The supervisor, Brian Cooper, served as the regional manager responsible for the store where Bromfield worked. According to the court, Cooper’s escalating harassment “included verbally abusing [Bromfield] while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out-of-state family wedding—by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her.”

Bromfield’s mother has alleged that Home Depot and two other companies that jointly employed Cooper, negligently supervised him and are, thus, responsible for Cooper’s rape and murder of Bromfield. Cooper allegedly had a history of sexually harassing younger subordinates like Bromfield. For example, before he turned his attention to Bromfield, he allegedly fixated on a different younger subordinate named Jessica. He allegedly made comments to Jessica about his genitals, rubbed his genitals against her, and forced her to take a road trip alone with him while he talked about his genitals. Prior to Bromfield’s rape and murder, Bromfield and Jessica allegedly both complained to management but not enough was done to stop Cooper, basically just giving him slaps on the wrists.

There is little doubt that Home Depot could be liable for Cooper’s actions under civil rights statutes that prohibit sexual harassment. His actions constitute some of the most extreme sexual harassment anyone could commit. The issue before the Seventh Circuit, however, was whether Home Depot could also be held liable under Illinois common law for negligent supervision. Unlike civil rights statutes, common law claims do not have any caps on damages. If Bromfield’s mother could only sue under, for instance, the federal law that prohibits sexual harassment, Home Depot’s liability would be capped at $300,000. If it found Home Depot and Cooper’s other employers liable for Cooper’s rape and murder of Bromfield, a jury would likely award Bromfield’s mother far more than $300,000 for the loss of her daughter, who was a young woman in her 20’s.

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