• 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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Recently, judges from the U.S. Seventh Circuit Court of Appeals, in Chicago, and a judge from the U.S. District Court of New Hampshire have expressed frustration with attorneys for corporate defendants who filed meritless summary judgment motions in employment discrimination cases.  A summary judgment motion asks a judge to dismiss a case before trial.  In employment discrimination cases, a judge may only grant a defendant-employer’s summary judgment motion if s/he finds that no reasonable jury could find in favor of the plaintiff-employee.

In Malin v. Hospira, Inc. et al., the Seventh Circuit reversed a trial court’s decision to grant Hospira’s summary judgment motion.  The plaintiff, Deborah Malin, alleged that Hospira unlawfully demoted her because she (a) complained about sexual harassment, (b) took FMLA leave, or (c) for both reasons.  Malin argued that Hospira retaliated against her when it demoted her in 2006 because of a sexual harassment complaint she made in 2003.  Hospira argued that no reasonable jury could find that it demoted Malin in retaliation for her 2003 complaint because three years separated the complaint and the demotion.  The Seventh Circuit rejected this argument, in part, because of evidence that Hospira had repeatedly retaliated against Malin before the 2006 demotion and, thus, the passage of time could not foreclose her claim.  With respect to Malin’s FMLA leave, Hospira argued that it decided to demote Malin before she requested FMLA leave and, as such, could not have taken her FMLA leave into account when it decided to demote her.  The Seventh Circuit determined that a jury could reasonably find that Hospira had not, in fact, made its final decision to demote Malin before she requested FMLA leave.

At the end of its decision, the Seventh Circuit expressed “disappointment with Hospira’s approach to summary judgment practice, which is such a common part of modern federal civil litigation and especially employment discrimination cases.”  The court noted that “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.”  The court cautioned defendants who engage in these types of “shenanigans” that they could face sanctions for unreasonably prolonging cases with these meritless motions.

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A Nova Scotia Human Rights Commission Board of Inquiry recently found that the Black Educators’ Association (BEA), an agency funded by the Nova Scotia Department of Education, discriminated against former employee Rachel Brothers because of her color.  According to Donald C. Murray, who was appointed to hear the case by the Chief Judge of the Provincial Court in Nova Scotia, the BEA fired Ms. Brothers, who is bi-racial, because she was not “black enough” for them.

Mr. Murray found that BEA employees made comments about Ms. Brothers’ relatively light brown skin.  BEA’s executive director also heard these types of comments and did nothing to discourage them.  The BEA ultimately fired Ms. Brothers supposedly due to concerns about the stability of her office.  Those concerns, which Mr. Murray found to be vague and not credible, were brought forward by a subordinate of Ms. Brothers with demonstrated hostility toward Ms. Brothers because of her skin color.

“We take issues of discrimination very seriously at the department,” said Education Minister Karen Casey.  “It is important that the BEA, and every other organization funded by the department, ensure they are respectful and equitable to their employees and clients at all time.  I expect that the BEA will learn from this as they move forward and ensure that they create a workplace where discrimination will not be tolerated.”

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Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Pregnancy Discrimination and Related Issues which discusses legal requirements under the Pregnancy Discrimination Act (PDA), Americans with Disabilities Act (ADA), and other federal laws.  According to the new Enforcement Guidance, pregnancy discrimination complaints have been on the rise for years, outpacing the steady rise of women in the workplace.

This new Enforcement Guidance provides additional legal support for pregnant employees who need light duty because of physical restrictions related to their pregnancies.  The Enforcement Guidance makes clear that, under the PDA, if an employer permits employees with physical restrictions similar to a pregnant woman to have light duty, it must give light duty to pregnant employees as well.  For instance, if an employer gives light duty assignments to employees with lifting restrictions due to on-the-job injuries, it will need to provide light duty assignments to pregnant employees who have those same lifting restrictions.

According to the Enforcement Guidance, the ADA entitles pregnant employees who suffer from some pregnancy-related medical impairments to reasonable accommodations.  For instance, an employer may have to permit a modification to an employee’s work schedule in order to accommodate her if she has a pregnancy-related medical impairment. The Enforcement Guidance offers the following example of such a situation:

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The Maine Employee Rights Group (MERG) has filed a lawsuit against Huhtamaki, Inc.  The lawsuit alleges that the company discriminated against MERG’s client Barry Kot because he has epilepsy and retaliated against him because he spoke out against the company’s discrimination.

Huhtamaki is a large Finnish corporation with about 14,400 employees and operations all over the world.  It manufactures consumer and specialty packaging.

In August of 2013, Huhtamaki offered Mr. Kot a job as a Machine Operator at its Waterville location.  Mr. Kot was well qualified for this job having worked as a machine operator for another company between 2007 and 2012 and doing other similar jobs as well.

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Meggan Sommerville, a manager in Hobby Lobby’s Aurora, Illinois store, has filed a lawsuit against Hobby Lobby for gender identity discrimination because she claims that it will not permit her to use the women’s restroom.  For years, she says that her boss has insisted that she cannot use the women’s restroom because she is a transgender woman.  “Hobby Lobby’s taking the fairly absurd position that in order for Meggan to be able to use the female facilities, she has to undergo reconstructive surgery,” her attorney, Jacob Meister, explained.

Sommerville, who has worked for Hobby Lobby since 1998, transitioned from male to female in 2009 and legally changed her name the following year.  For purposes of her health benefits, provided by Hobby Lobby, she is classified as female.  But, when she used the women’s restroom at work, she received a written disciplinary warning.  It is unclear whether Hobby Lobby’s decision not to let Sommerville use the women’s restroom stems from its owners’ decision to run their business consistent with their religious beliefs.

“I’m just looking to be treated equally with every other female in the company—not just in the store, but in the company,” Sommerville said.  “If they recognize me as female for certain things, why can’t they recognize me as female for everything?”

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The Mexican American Legal Defense and Education Fund (MALDEF) and a private law firm represent Ruben Juarez in a first-of-a-kind lawsuit against Northwestern Mutual, an insurance company.  Mr. Juarez was brought to the United States illegally as a child.  However, he has a work permit, a social security number, and he is authorized to live and work in the United States under a program called the Deferred Action for Childhood Arrivals (DACA) law, which is an executive order.  Despite the fact that Mr. Suarez was legally authorized to work in the United States, Northwestern Mutual allegedly refused to hire him because he is not a U.S. citizen and he does not have a “green card.”

In the lawsuit filed against Northwestern Mutual, Mr. Juarez’s attorneys have expressed that they intend to pursue the case as a class action on behalf of persons who are legally authorized to work in the United States, but who were denied the right to work by Northwestern Mutual at any time since July 9, 2010, because they are not citizens or permanent residents (“green card” holders).

Victor Viramontes, of MALDEF, said, “this lawsuit should serve as a warning that employers cannot pick and choose which verification documents or residency histories they will accept from prospective employees who are otherwise excellent employment candidates and meet their obligations under the law.”

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Fifty years ago, in July 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law.  Through this landmark piece of legislation, the federal government sought, among other things, to dismantle abhorrent “Jim Crow” laws in the South which rendered African Americans second class citizens.

A strong minority of legislators in Congress fought bitterly to try to defeat the Civil Rights Act.  They argued that the Civil Rights Act would unconstitutionally usurp state rights and impair individual liberty.  Thanks, in part, to the work of civil rights activists like Dr. Martin Luther King and John Lewis, who helped the entire nation and its members of Congress to see the horrors of segregation and Jim Crow, enough members of Congress banded together to pass the law.

Interestingly, before the Civil Rights Act passed, opponents to the law added an amendment to bar sex discrimination in employment.  This tactic backfired.  Title VII of the Civil Rights Act, which prohibits employment discrimination, passed with not only landmark protections against race discrimination, religious discrimination, and national origin discrimination, but also with landmark protections against sex discrimination.

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The astonishing answer to this question is, sometimes, yes; an employer can sometimes get away with firing an employee for reporting unlawful activity if that employee’s job duties required him to report the unlawful activity.  In Winslow v. Aroostook County, the U.S. First Circuit Court of Appeals interpreted one section of the Maine Whistleblower Protection Act (MWPA) to allow employers to discriminate against employees who blow the whistle on unlawful activity “if it is part of his or her job responsibilities to” blow the whistle.  Maine’s Supreme Judicial Court, which has the final say on what the MWPA prohibits, has not yet weighed in on this issue, however; and other sections of the MWPA may provide more protection for employees than others.  Nevertheless, court decisions like Winslow are troubling.

In other states, courts are split on this issue.  In New Jersey, one appellate court has held that New Jersey’s whistleblower protection law prohibits employers from discriminating against employees who blow the whistle on unlawful activity if their job duties require them to do so.  Another New Jersey appellate court went the opposite way.  There has been a large amount of public debate over this issue in New Jersey and the New Jersey Supreme Court will likely settle the issue in a case it has agreed to hear this fall.

It does not make much sense to permit employers to discriminate against employees who blow the whistle when, by blowing the whistle, they’re just doing the job their employer hired them to do.  Such a rule places these employees in an untenable Catch-22 situation.  If they don’t blow the whistle on their employer’s unlawful activity, they can get fired for not doing their jobs.  At the same time, if they do blow the whistle on their employer’s unlawful activity, they can get fired in retaliation.  Moreover, from a public policy standpoint, we want to encourage whistleblowers to report unlawful activity, whether it is their job to report it or not, because that is the way unlawful activity is brought to light and stopped.  Permitting employers to retaliate against any whistleblower undermines this public policy goal.

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A group of sociologists recently conducted experiments in New England and the Southern United States to determine whether the inclusion of a religious identifier on a resume affected an applicant’s chances of getting hired.  The sociologists found that applicants who included a religious identifier on their resumes decreased their chances of getting hired both in New England and in the South.

The experiment entailed sending out thousands of resumes with identical qualifications but with different indicators of the applicants’ religious beliefs.  For instance, some of the resumes said that the applicant had been a member of his university’s association of Catholic students.

In New England, the sociologists found significant levels of discrimination against Muslims and, to a lesser extent, atheists, pagans, and Catholics. However, on the whole, the sociologists found that the level of religious discrimination in New England is relatively low.  They thought this relatively low level of discrimination was likely because of New Englanders’ relatively low level of religiosity and high amount of religious tolerance.

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Senator Susan Collins (R-ME) has proposed legislation, supported by a group of trucking and business organizations, that would freeze some new federal regulations designed to address the problem of truckers driving without enough sleep.  Collins believes that these regulations need to be frozen and studied more because she thinks they are leading to unintended safety risks.

The problem of fatigued driving came to the forefront recently in connection with an accident that involved a Wal-Mart truck driver crashing into comedian Tracy Morgan’s car, leaving Morgan seriously injured and another passenger dead.  However, safety advocates have said that the problem has gone on for years.

Mainer Daphne Izer, founder of Parents Against Tired Truckers (PATT) has expressed deep dissatisfaction with Collins’ action. “I have whiplash—one month ago I was in the White House celebrating vital improvements to reduce truck driver fatigue, and now my own senator is using her power as Ranking Member on the THUD Appropriations Subcommittee to undo a rule which will result in more overly tired truckers on our roads,” said Izer.

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