• 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. 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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The Mount Desert Islander published the article below about the Maine Employee Rights Group’s (MERG) lawsuit against Mt. Desert Hospital.

Lawsuit alleges discrimination

BANGOR — A former Mount Desert Island Hospital employee has filed a lawsuit in federal court claiming the hospital failed to accommodate her disability stemming from medical issues, and retaliated against her for using the Family Medical Leave Act.

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This week, the U.S. Senate passed a resolution that repealed a regulation from the Occupational Safety and Health Administration (OSHA) regarding the reporting of workplace injuries. The President is expected to sign the repeal into law. The repealed regulation allowed OSHA inspectors to fine corporations who failed to properly record workplace injuries if the reporting error occurred within five years of an OSHA citation. Now that the regulation has been repealed, OSHA can only fine corporations for violations that occurred within six months of an OSHA citation.

Federal statues require certain corporations to record workplace injuries and keep those records for five years. So, this regulatory repeal basically just makes it easier for corporations that do not follow the law to avoid any consequences for their unlawful activity. Former Commissioners of the Bureau of Labor Statistics (BLS) that served under Presidents Bush and Obama both criticized the repeal of this regulation. They argued that repeal of the regulation would mean that, “responsible employers who accurately record workplace injuries will be at a disadvantage competing with employers who do not maintain accurate records.” They also warned that repealing the regulation would result in less accurate data on workplace injuries and, thus, make it more difficult to enact policies to protect workers.

The vote on repeal of the regulation was largely along partisan lines. Senator Collins voted to repeal the regulation and Senator King, along with every Democrat in the Senate, voted against repeal. Representative Poliquin voted to repeal the regulation and Representative Pingree voted against repeal.

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Last week the U.S. House of Representatives passed a bill called the “Fairness in Class Action Litigation Act of 2017.” This bill would significantly weaken workers’ ability to band together and bring class actions. Some have argued that it would essentially eliminate certain types of class actions.

Class actions are a far more effective way to hold companies fully accountable for widespread violations of workers’ rights than individual actions. When companies commit widespread violations of workers’ rights, individual cases are inadequate to fix the problem. In an individual case, the company can compensate the one victim who sued, claim that the victim’s case is an isolated incident, and continue to engage in widespread violations of workers’ rights. Class actions seek compensation for all workers that a company harmed through its systemic or widespread rights violations. Class actions, unlike individual actions, can force companies to make systemic changes to prevent future violations of workers’ rights.

The bill that the House passed does many things to undermine workers’ ability to bring class actions. One of the most egregious provisions of the bill relates to the burden on classes of workers to prove that they basically all suffered identical harms in order to pursue a class action. The bill says that the workers who represent the class must have suffered the “same type and scope of injury” as all workers in the proposed class. This is a huge barrier to class actions.

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The U.S. Ninth Circuit Court of Appeals recently held that a jury could reasonably find that a Sheriff unlawfully sexually harassed one of his female corrections officers because he repeatedly hugged her and, on one occasion, kissed her. The female corrections officer complained to supervisors about the Sheriff’s harassment but they did not forward her complaint for investigation.  The court found that a jury could reasonably determine that this conduct created a hostile work environment.

The Ninth Circuit reversed the decision of a trial judge who had thrown the case out on summary judgment because he did not believe hugging could constitute sexual harassment. While hugging may not constitute unlawful sexual harassment in every case, the Ninth Circuit found that it did in this case where, among other things, (1) the Sheriff was the highest official in the department; (2) the hugging occurred over 100 times over twelve years; (3) the hugs were chest-to-chest; and (4) there was evidence that the female corrections officer who brought the case needed to get sleep medication because the Sheriff’s behavior upset her so much.

The court interestingly found that the alleged harasser’s prominent position made his conduct more likely to create a hostile work environment. The Sheriff won his position through an election and he was the highest official in the department. According to the court, the Sheriff’s high rank and authority over his employees gave his harassment a “threatening character” that would not have been the same had the Sheriff been a co-worker of the female corrections officer.

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The Washington Post recently ran a story about a class action sex discrimination case against Sterling Jewelers, the company behind Jared the Galleria of Jewelry and Kay Jewelers. The women who filed the case initiated it in 2008 but the public knew nothing about the case until recently because Sterling made its employees agree to bring claims against the company in arbitration. Arbitration, unlike court proceedings, can enable a company to keep damaging information about the company away from the public eye.

What we learned from the Washington Post story is that the plaintiffs in the case produced about 250 sworn statements from women who claim that Sterling fostered a corporate culture of abuse toward women. The women who made these statements spoke of a culture where male managers treated their female subordinates as sexual objects. These men demanded that the women they managed acquiesce to their sexual harassment in order to get ahead at Sterling. The plaintiffs also allege that Sterling paid female employees less than similarly situated male employees.

If the plaintiffs who filed this case had been allowed to file it in court, this evidence of widespread sex discrimination would have come to light far sooner. A class action such as this likely would have grabbed headlines back in 2008 when it was filed. Because Sterling was allowed to force the case into secretive arbitration proceedings, the public did not know about it. Women who applied for jobs at Sterling did not know about these allegations of widespread sex discrimination at the company. If the allegations are true, some of the women who obtained jobs at Sterling without knowledge of the allegedly toxic culture likely became victims of that culture.