Articles Posted in Uncategorized

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Today, the U.S. Department of Justice (DOJ) announced the first lawsuit filed by the Trump administration under Title VII of the Civil Rights Act.  Title VII prohibits employment discrimination based on race, color, sex, national origin, and religion.  DOJ enforces Title VII against state and local government employers.

The lawsuit alleges that the Houston Fire Department violated Title VII of the Civil Rights Act when it subjected two female firefighters to sexual harassment.  The news of the lawsuit coincided with the announcement of a new DOJ initiative to combat sexual harassment in the workplace—the Sexual Harassment in the Workplace Initiative (SHWI).

This lawsuit against the City of Houston follows criticism from civil rights advocates over the fact that the current administration had not filed any Title VII lawsuits.  Now that the first one has been filed, it will be interesting to see whether DOJ will begin to file Title VII lawsuits at an increased frequency.

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The Maine Employee Rights Group (MERG) is pleased to announce that award-winning attorney Allan Townsend has joined the firm.  Allan comes to MERG from the U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, where he worked for the past seven years protecting the rights of employees of state and local governments as well as military service members.

DOJ entrusted Allan to represent the United States in some of its most high profile cases including a large class action challenging the New York City Fire Department’s (FDNY) pattern of discrimination against Black and Hispanic applicants—which settled for about $100 million—and the first-ever employment discrimination lawsuit that DOJ filed to protect the rights of a transgender individual.

“Allan began his career in Maine and we are thrilled that he has returned from Washington, DC.  He is an extraordinary attorney and a dogged advocate for his clients.  Allan has spent his entire career fighting for working people and all Maine workers should be thankful that he has returned,” said MERG principal Peter Thompson.

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The federal Age Discrimination in Employment Act (ADEA) turned 50 years old this month.  Congress enacted the ADEA, 50 years ago, to address the following stated problems:

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

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In almost every workplace, information is communicated and stored electronically. Email, scanned documents, spreadsheets, databases, memos, letters, and more are all stored electronically. These troves of electronic information often contain the evidence that lawyers need to prove illegal activity. Even when a wrongdoer tries to cover their tracks, electronic storage of information can make it difficult to completely cover their tracks. One example of this occurred in a case in San Francisco that recently resulted in a judgment of over $10 million dollars for a whistleblower.

In that San Francisco case, the company claimed that it fired the whistleblower because of erratic work and loud outbursts. The whistleblower—who argued that the company fired him because he blew the whistle on illegal activity—said that his work was not erratic, he did not make loud outbursts, and the company never provided him with any documentation to support these claims. The company presented a performance review, dated a couple months before the whistleblower’s termination, which appeared to corroborate the company’s claim of erratic work and loud outbursts. But because the performance review was created electronically, “metadata” showed that the performance review was a fake.

Metadata is information about an electronic record such as who created it and when it was created. The whistleblower’s lawyer obtained the metadata associated with the performance review that supported the company’s claim of erratic work and loud outbursts. The metadata showed that the performance review was actually created after the whistleblower’s termination. This showed that the company did not take that performance review into account when it fired the whistleblower and that it may have created the performance review after the termination as a way to cover up its unlawful retaliatory motive for firing the whistleblower.

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After a three day jury trial, a Bangor jury found that Woodlands Senior Living of Brewer (“Woodlands”) violated the Americans with Disabilities Act, the Rehabilitation Act, the Family Medical Leave Act, and the Maine Family Medical Leave Requirements and awarded the plaintiff, Christy Dorr, of Milford, $15,000 for her lost wages. 

Ms. Dorr was employed by Woodlands Senior Living of Brewer for three years.  On June 26, 2014 she needed to leave a shift for reasons relating to her pregnancy and medical conditions.  The next day Woodlands terminated her employment.  The jury concluded that Woodlands terminated Ms. Dorr because of her protected medical conditions and that Woodlands had failed to provide her with protected leave under the Family Medical Leave Act. Ms. Dorr filed suit in the U.S. District Court for the District of Maine on March 10, 2015 and the case went through protracted litigation prior to the trial.

The Court will consider additional issues including an award of liquidated damages, changes to Woodlands’ policies and procedures, corrections of Ms. Dorr’s personnel file and an award of attorney’s fees and costs. Ms. Dorr is represented by Chad Hansen, a member of the Maine Employee Rights Group.

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Earlier this month a federal court in Connecticut determined that a jury could reasonably find that the Hartford School District unlawfully discriminated against a teacher because of her sexual orientation. The teacher (who is the plaintiff in the lawsuit) and her female spouse both worked for the same school. After the principal and an assistant principal learned that the plaintiff and her spouse were in a same-sex relationship, they allegedly engaged in a campaign of harassment against the plaintiff.

Plaintiff alleged, among other acts of harassment, that she was treated with hostility at meetings; she was assigned more than her fair share of children with behavioral problems; she received discipline for trumped up charges; she was berated for reporting that a student had physically assaulted her; she was denied transfers; and when she experienced a medical emergency at work, no one contacted her spouse to inform her. She eventually quit due to medical concerns related to the stress at work.

None of this harassment seems to have been directly linked to the plaintiff’s sexual orientation. For instance, there was no evidence that the principal used homophobic slurs or commented on plaintiff’s sexual orientation. However, the court determined that a jury could find that the harassment was linked to plaintiff’s sexual orientation because of evidence that the same principal treated other gay employees with hostility. Furthermore, the principal and assistant principal claimed that they did not know plaintiff’s sexual orientation and those claims lacked credibility because it was common knowledge in the school that plaintiff and her spouse were a couple. Thus, a jury could infer that the principal and assistant principal lied about not knowing plaintiff’s sexual orientation to cover up their discriminatory bias against plaintiff.

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We previously reported on the New York Department of Labor’s (NYDOL) delay in ruling on whether some former Uber drivers were eligible for unemployment benefits. To determine eligibility for unemployment benefits, NYDOL had to decide whether Uber drivers are employees or independent contractors. NYDOL finally reached a decision last week in favor of the Uber drivers.

Worker advocates in New York have taken this ruling from the NYDOL as a sign that they could be successful in arguing that Uber should treat its drivers in New York as employees. This would mean that they are entitled to a whole host of employment benefits such as workers compensation and overtime pay.

New York has now joined Oregon and California in determining that Uber drivers are employees for purposes of unemployment benefits determinations. Each state that makes a determination that Uber drivers are employees creates more precedent and more momentum for other states to do the same.

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Multiple studies have shown that homeless people face pervasive employment discrimination. In 2014, a survey of homeless people found that over 70% of them believed that businesses had discriminated against them based on their housing status. Homeless people face obstacles in getting employment because they are stereotyped as drug abusers and mentally disabled. (Of course, discrimination against the disabled is also illegal, but that is the subject for a different blog post.) Needless to say, this type of discrimination creates a vicious cycle of poverty for homeless people.

Maine does not have a law that prohibits employment discrimination against homeless people. Other New England states—Connecticut and Rhode Island—have passed laws, however, that prohibit employment discrimination against homeless people. Criminal statutes in Maine call for heightened punishment when a victim is targeted because s/he is homeless. A Maine law that prohibits employment discrimination against the homeless would go even further toward protecting one of the most, if not the most, vulnerable populations in our state.

Another option to help homeless people find employment is to enact laws that encourage employers to hire homeless people. Enhanced tax breaks for hiring the homeless or doing more to steer government contracts to employers that actively recruit homeless people for employment are two possibilities. There are already laws that provide these types of tax breaks to the poor but the tax breaks could be enhanced. All of these ideas merit consideration in Maine’s legislature and Congress.

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This week the U.S. Equal Employment Opportunity Commission (EEOC) convened a number of experts to discuss how employers have begun and will increasingly continue to use “Big Data” to make employment decisions. These uses of Big Data include using algorithms, “data scraping” of the internet, and other means to evaluate tens of thousands of data points. Employers use these techniques to determine who to hire, who to promote, how to determine whether an employee is performing well, and make other employment decisions.

“Big Data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations, and promotions,” said EEOC Chair Jenny R. Yang. “At the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

The experts saw the potential for the use of Big Data to make fairer employment decisions, reduce the role of implicit bias, and promote equality. At the same time, if not used properly, the use of Big Data could continue, and possibly worsen, inequities in employment decisions. As one expert said, “algorithms may be trained to predict outcomes which are themselves the result of previous discrimination. The high-performing group may be non-diverse and hence the characteristics of that group may more reflect their demographics than the skills or abilities needed to perform the job. The algorithm is matching people characteristics, rather than job requirements.”

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A panel of reviewers representing a variety of stakeholders, including advocates of employers’ and workers’ interests, recently issued a report that debunks the myth that the Maine Human Rights Commission (MHRC) is biased against employers.  This panel conducted its review in accordance with Governor LePages executive order that a panel study, among other things, factors causing and/or contributing to perceptions that the MHRC is prejudiced against employers and biased in favor of workers.  In conducting its work, the panel noted that there are also people who believe that the MHRC is prejudiced against workers, not employers, but the panel unanimously found no evidence of prejudice against employers or workers.

“We think the report very clearly and unambiguously finds that we are factually not biased and don’t act in a way that is biased toward anyone in our process, nevermind labor,” said MHRC Executive Director Amy Sneirson. “We also think that anyone looking at our annual reports could have found the same thing a year ago without needing this review panel.”

The panel made various recommendations to improve the MHRC in ways that would, hopefully, reduce the perceptions of bias.  These recommendations included more funding and staff at the MHRC.