Maine Employment Lawyer Blog

The City of New Haven, Connecticut and the group of white and Hispanic firefighters who brought a reverse race discrimination lawsuit against it have reached a settlement. The firefighters sued New Haven because the city refused to certify the results of a promotional exam in 2004 due to its fear that the exam unlawfully screened out African Americans.

This case was made famous during the confirmation hearings of Supreme Court Justice Sonia Sotomayor. Justice Sotomayor wrote the opinion for the Second Circuit Court of Appeals when it ruled against the white and Hispanic firefighters. The U.S. Supreme Court, in a 5-4 decision, overruled the Second Circuit and handed victory to the firefighters.

Under the terms of the settlement agreement, the firefighters will receive $2 million and 3 years of pension credit. Their attorneys will receive $3 million to pay for their fees and expenses. Federal and state employment discrimination laws require employers who unlawfully discriminate to pay their victims' attorneys' fees. This is an important characteristic of these laws. If employers who discriminate did not have to pay their victims' attorneys' fees, many victims with meritorious cases would not bring their cases because of the costs associated with them--and discrimination would go unchecked.

On July 26, 2011, the Equal Employment Opportunity Commission (EEOC) will hold a public hearing that addresses the issue of "Arrest and Conviction Records as a Barrier to Employment." Dating back to the 1980s and early 1990s, the EEOC (which is a federal agency that enforces employment discrimination laws) has warned employers about screening applicants based on arrest and conviction records. It is well-known that law enforcement authorities and courts disproportionately arrest and convict racial minorities. Regardless of whether these arrests and convictions are legitimate, it is unlawful under the Civil Rights Act for employers to use policies that screen out racial minority applicants at a far greater rate than white applicants unless (a) it can demonstrate that it has a valid business justification to use the records to screen applicants and (b) there is not a less discriminatory way to meet the business need that justifies the use of the records. Thus, if an employer uses arrest or conviction records to screen applicants, it may violate the law unless it complies with these conditions. The EEOC's hearing will address this issue again and that could lead to further guidance for employers on this issue.

Last month, the U.S. Supreme Court struck a major blow to a class action sex discrimination lawsuit brought against Wal-Mart when it decided that the case could not continue as a class action. This was the largest class action employment discrimination case in history. Experts have now begun debating the likely effects that this case will have on class action employment discrimination lawsuits in the future. Interestingly, some experts seem to believe that the case will result in more class action lawsuits because the case will require employees to band together into smaller groups--and bring separate class action lawsuits. That is exactly what the lawyers for the women of Wal-Mart are contemplating. Some also think that large employers will attempt to mimic Wal-Mart's policy of giving store managers almost unbridled discretion to make personnel decisions in order to insulate the company from a large company-wide class action lawsuit.

If you are a current or former female employee of Wal-Mart from Maine, you should contact an experienced employment lawyer to determine if this case affects your rights.

Manske v. UPS Cartage Services Inc.

Chief Judge John A. Woodcock of the United States District Court of Maine in Bangor recently ruled in favor of whistleblower plaintiff Dennis Manske, by upholding Magistrate Judge John Rich's decision to allow Mr. Manske and his counsel to delay production of certain audio recordings, made by him of conversations he had with his supervisors, until after Mr. Manske's attorneys has an opportunity to question those supervisors about their conduct in deposition.

Mr. Manske, who is represented by Maine Employee Rights Group ("MERG") filed suit in U.S. District Court against his former employer UPS Cartage Services, Inc. on July 30, 2010. In his complaint, Mr. Manske alleges that his managers extended his probationary period and forestalled his union rights in July 2008 and then terminated his employment in August 2008 after Mr. Manske repeatedly wrote up mechanical and safety issues with the trucks he was being asked to drive. Mr. Manske alleges that the extension of his probation and termination if his employment were in retaliation for his reports about the mechanical and safety issues with his trucks and that this retaliation violates the federal Surface Transportation Assistant Act ("STAA") and well as the Maine Whistleblowers' Protection Act ("MWPA") and the Maine Human Rights Act ("MHRA").

The STAA protects employees who report violations, refuse to commit violations, or participating in proceedings relating to possible violations of the federal regulations relating to trucking from retaliation by their employers and provide employees who have been retaliated against with a number of remedies including back pay, reinstatement, compensatory damages, and punitive damages.

The MWPA and MHRA prohibit employers from retaliating against employees who, among other things, report what the employee reasonably believes to be a violation of law or condition that endangers the health or safety of the employee or another. Like the STAA, the MWPA and MHRA permit aggrieved employees to recover back pay, reinstatement, compensatory damages, and punitive damages.

During the course of litigation, the existence of the recordings was brought to the attention of the defendant. While Mr. Manske, through his attorneys, argued he had a right to withhold those recordings until after his attorneys could depose the supervisors recorded, UPS Cartage argued Mr. Manske had no such right and argued he must hand over the recordings immediately. Judge Rich determined it was within the court's discretion, and within the Federal Rules of Evidence, to grant Mr. Manske's counsel the opportunity to hold back those recordings until after his attorneys could question the defendant's supervisors, about their reasons for the extension of Mr. Manske's probation, and Judge Woodcock readily agreed in a June 8, 2011 opinion.

The Decision preserves the impeachment value of this type of evidence. As set out by Judge Woodcock in the Decision, "[i]n employment cases, where shifting explanations for adverse employment action may evince retaliatory motive, preventing management witnesses from tailoring their testimony to prior comments is of particular importance to a plaintiff's case." Manske v. UPS Cartage Services, Inc. --- F.Supp.2d ----, 2011 WL 2259243 (D.Me. 2011).

Maine Human Rights Commission et al. v. Coffee Couple LLC et al.

U.S. District for the District Court of Maine Chief Judge John A. Woodcock recently affirmed Magistrate Judge Margaret J. Kravchuk's decision recommending that judgment be entered against the company, Coffee Couple LLC, as well as against the owners of Coffee Couple, Karen and Calvin Boyle of Moncton, New Brunswick, Canada in connection with their discrimination against a number of Maine employees.

The Maine Human Rights Commission ("MHRC") Maine Employee Rights Group ("MERG"), and Disability Rights Center ("DRC"), brought suit against Coffee Couple and the Boyles for acts of racial discrimination, pregnancy discrimination, gender discrimination and disability discrimination. Five plaintiffs were represented in this action; Chad T. Hansen of MERG represented two of the Plaintiffs, Jessica Page and Brittany Corliss, on their claims of gender and pregnancy discrimination. The MHRC and the DRC represented the remaining three plaintiffs on their claims of race and disability discrimination.

The plaintiffs each worked at a Tim Horton's franchise for the Boyles and Coffee Couple, where they experienced multiple acts of discrimination at the hands of the Boyles.

Ms. Page, worked at the front counter of Tim Horton's for four months but was terminated by the defendants after she disclosed that she was pregnant. Similarly, Ms. Corliss, worked for the defendants for almost a year until she also disclosed her pregnancy and was terminated.

Terminating an employee because they are pregnant constitutes unlawful sex discrimination under the state Maine Human Rights Act ("MHRA") and also violates federal anti-discrimination law, Title VII.

After hearing testimony and arguments from the plaintiffs, Judge Kravchuk recommended that the Court enter default judgment finding Coffee Couple liable for unlawful employment discrimination with respect to the plaintiffs that were present at the hearing and also finding the Boyles individually liable for a number of discriminatory acts. On June 29, 2011, Judge Woodcock affirmed that decision, finding that the plaintiffs that had appeared at the hearing were discriminated against and that Ms. Page and Ms. Corliss were unlawfully discriminated against in violation of state and federal law on the basis of their pregnancy. In cases of intentional discrimination the court may award compensatory damages in addition to back pay, including damages for the loss of enjoyment of life and emotional pain and suffering. As a result, Ms. Page was awarded $11,440.00 in back pay, $1000.00 in compensatory damages, plus fees and costs as well as a $2,500.00 civil penalty against Coffee Couple and Ms. Corliss was awarded $1,333.00 in back pay, $10,000.00 in compensatory damages, plus fees and costs as well as a $1,000.00 civil penalty against both Calvin and Karen Boyle individually.

On July 6, 2011, the United States District Court of Maine in Bangor issued a decision that permits a disability discrimination lawsuit against Bath Iron Works (BIW) to go forward. A former employee of BIW, Guillermo Blanco, brought the lawsuit against BIW (which is owned by General Dynamics Corporation).

The lawsuit alleges that BIW's doctor violated the Americans with Disabilities Act (ADA), and a similar Maine law, when he shared Mr. Blanco's confidential medical information with BIW management. BIW fired Mr. Blanco because of the information the doctor provided to management. BIW said it fired Mr. Blanco because it thought he lied about the fact that he had Attention Deficit Hyperactivity Disorder (ADHD) in a medical questionnaire. Mr. Blanco said he didn't lie; he said he didn't think the questionnaire asked about mental health issues. The Court said it didn't matter whether he lied or not. The ADA forbids company doctors from sharing confidential medical information with management except in limited circumstances not present in this case. When the doctor told management that Mr. Blanco had ADHD, a violation of the ADA occurred. BIW will be held responsible for the violation if Mr. Blanco presents evidence to support his allegations because BIW's doctor made the unlawful disclosure and its managers acted on the information.

According to the Equal Employment Opportunity Commission, the federal agency that enforces the ADA, "[h]istorically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities--particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness--despite their ability to perform the job." The ADA's medical confidentiality requirements are important safeguards against discrimination because it is so easy for a manager to come up with a false excuse to fire an employee because he has a disability. By preventing managers from learning of employees' disabilities, it prevents this type of discrimination.

The Maine Employee Rights Group is representing Mr. Blanco in this case.