• 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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As many people know, it is tough to be unemployed and looking for work particularly in times of high unemployment when you have to compete against more people for fewer jobs. For people with disabilities, it can be even more stressful because they are not sure if an employer will treat them differently because they have a disability or will unwilling to accommodate their disability. The U.S. Equal Employment Opportunity Commission has published guidance to help people with disabilities who are looking for work.

Under the Americans with Disabilities Act (ADA), which is similar in many respects to the Maine Human Rights Act (MHRA), before an employer offers you a job, it may not ask you if you have a disability or require you to undergo a medical examination. Some examples of prohibited questions during this pre-offer stage of the hiring process are:

  • How many days were you sick last year?
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Yesterday, Judge Woodcock of the U.S. District Court of Maine denied the University of Phoenix’s request to transfer an age discrimination case against it to a court in Arizona, where it is headquartered. Two former employees of the university, one of whom lives in Maine, filed this lawsuit against the university claiming that the same group of people discriminated against both of them. The university argued that it would be more convenient to litigate one of the plaintiff’s claims in Arizona. However, the court held that “the convenience of the parties and the witnesses would be unquestionably enhanced with one trial of two Plaintiffs in Maine rather than two trials of single Plaintiffs in Maine and Arizona.”

Interestingly, the court held that the location of documents, which was once a weighty factor, no longer carries that much weight when a judge considers whether to transfer a case to another court. This is because documents are not kept in paper form as much as they used to be and they are easily transported to distant places. Indeed, the University of Phoenix is an international business which regularly transfers documents to other countries where it has operations.

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A security director for the National Basketball Association (NBA) has sued the NBA, USA basketball, and UConn women’s basketball coach Geno Auriemma because of retaliation she experienced after she rebuffed Auriemma’s sexual advances. The security director, Kelley Hardwick, claims that Auriemma’s sexual advance occurred in 2009 when she was working in Russia at a basketball tournament. She claims that Auriemma followed her back to her hotel room, grabbed her, and tried to kiss her. Hardwick, a former NYPD detective, claims that she rebuffed his advance and told him he was out of line. This year, according to the lawsuit, Auriemma demanded that the NBA remove Hardwick from the security detail at the London Olympics as retaliation for her rejection of his sexual advance.

Hardwick told the NBA about Auriemma’s retaliatory motive, gave it a list of witnesses to support her story, and asked that it investigate. According to her, the NBA did not talk to any of her witnesses or to Auriemma about the allegations. Instead, it chose to stand by its decision to ban her from working security at the London Olympics. Hardwick subsequently filed her lawsuit. “I was willing to close this story in 2009,” Hardwick said in an interview. “If Geno had not interfered with my job and my livelihood, I would not have filed this lawsuit.”

Unfortunately, sexual harassment is an all too common problem that continues to persist. If you have experienced sexual harassment, or retaliation because you opposed sexual harassment at work, you should contact an experienced employment lawyer for advice.

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A group of black United Airlines employees have sued the company for race discrimination. The employees allege that United Airlines utilizes uncontrolled subjective criteria to select applicants for promotions. The suit also alleges that United operates two tracks for the promotion of employees — one for minorities and one for non-minorities. These practices allegedly work to disproportionately deprive promotions to black employees.

“We have endured a habitual, longstanding pattern of discriminatory behavior at the hands of United Air Lines,” Terry Haynie, a United pilot said in a statement. United denies that it has discriminated against the plaintiffs and says it plans to fight the lawsuit.

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Yesterday, Senators Snowe and Collins voted with other Republicans in the U.S. Senate to prevent an up-or-down vote on the Paycheck Fairness Act, effectively blocking it for now. The Paycheck Fairness Act would make it more difficult for employers to pay women less than men for the same work. It would, among other things, require employers who pay women less than men for the same work to prove that the pay disparity is based on things like education or qualifications. It would also prohibit employers from retaliating against employees who discuss their wages with one another, taking away a prime method employers utilize to hide pay discrimination from women.

Laws that have been on the books for decades have not solved the problem of pay discrimination. Women still earn significantly less than men. The Paycheck Fairness Act is designed to enhance current laws to make them more effective.

“I support equal pay for equal work,” Senator Collins said in a statement. “I remain concerned that this particular legislation would unnecessarily expose the small business community to excessive litigation, and impose increased costs and restrictions on businesses that are already struggling to create and maintain jobs in this difficult economic environment.” This is the same argument that the business community raises whenever enhancements to employment discrimination laws are being debated. Collins’ concern that this new law would result in “excessive litigation” is based on pure speculation. One does not have to speculate, however, to see that women who are “struggling” in this “difficult economic environment” deserve more protection from pay discrimination.

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Last week, the First Circuit Court of Appeals, which rules on federal appeals from Maine, other New England states, and Puerto Rico, held that an arbitrator would need to decide whether an employer’s arbitration agreement could shorten the statute of limitations on claims against it.

In this case, the plaintiff claimed that his former employer, a hotel in Puerto Rico, unlawfully retaliated against him because he filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC). As a condition of his employment, the hotel had required the employee to sign an arbitration “agreement.” (It is called an “agreement” even though employees usually don’t have much choice but to agree because, if they don’t, the employer won’t hire them.) Arbitration agreements require employees to bring claims against their employers before a private arbitrator, instead of before a public court. The particular arbitration agreement at issue in this case also shortened the statute of limitations for the employee’s retaliation claim from 3 years to 1 year. If enforced, this shortened statute of limitations would bar the employee’s claim.

Some courts have held that employers cannot legally use an arbitration agreement to shorten the statute of limitations of claims against it. The First Circuit, however, decided that in this case the arbitrator, instead of the court, would need to decide whether it was legal for the employer to shorten the statute of limitations. Employers prefer arbitrators to make these decisions, in part, because they usually pay the arbitrators and they bring arbitrators repeat business. So, arbitrators have a financial incentive to side with employers.

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Yesterday, the Maine Human Rights Commission unanimously found that Families Matter, Inc., an employer located in Hallowell that provides services to young adults with special needs, discriminated against its former employee, Lisa Pierce, based on her race and ethnicity. Ms. Pierce served as an Assistant Director for the company’s Skowhegan location. She is bi-racial (Hispanic and Native American) and her national origin is Puerto Rican.

According to the company’s former Personnel Director, the company’s Executive Director, Edward McNaughton, once said, about Ms. Pierce, “I didn’t know you hired a woman of color.” Additionally, he said that he once had a conversation about employee holidays with Mr. McNaughton. When he said that Martin Luther King Day is generally given to employees as a holiday, Mr. McNaughton replied “over my dead body.” He replied “old school huh?” and Mr. McNaughton replied “you have no idea.” The former Personnel Director also told the MHRC investigator that Mr. McNaughton once revealed that he believed in “pure heritage.” Another witness corroborated the former Personnel Director’s testimony. She heard Mr. McNaughton refer to Ms. Pierce as the “colored girl.” This witness also told the MHRC investigator who investigated the case that Mr. McNaughton is a bigot who talks down to people.

The MHRC found that, during her employment, Ms. Pierce was treated differently than other Assistant Directors. For instance, contrary to standard protocol, she was not given the chance to defend herself in response to criticism from a client’s sister. Ms. Pierce also did not receive information about management decisions that the other Assistant Directors received, which made it difficult for her to perform her job and left her at a disadvantage when she interacted with her peers and management.

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The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated Enforcement Guidance titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The EEOC updated its guidance in this area because, during the twenty years since it first issued guidance on this issue, employers have gained easier access to criminal records through new technology. Also, at least one court has suggested that the EEOC update its guidance. The guidance explains how an employer can discriminate against an employee or applicant on the basis of his race or ethnicity if it misuses criminal history information.

Nationally, African Americans and Hispanics are arrested and incarcerated in numbers disproportionate to their representation in the general population. Thus, employers who rely on criminal records to make hiring decisions are more likely to screen out African Americans and Hispanics than whites. As such, caution is warranted when using criminal records to make hiring decisions. If an employer does not comply with the EEOC’s guidance on the use of these criminal records, it risks violating Title VII of the Civil Rights Act.

If you are African American or Hispanic and an employer has deprived you of a job opportunity because of your criminal history, you should contact an experienced employment lawyer to learn more about your rights.

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Today, a bi-partisan group of U.S. Senators, which includes Susan Collins, called for Senate hearings regarding the Employment Non-Discrimination Act (ENDA), which would make it unlawful under federal law for employers to discriminate against employees on the basis of their sexual orientation or gender identity. The text of the Senators’ letter to the Senate health and labor committee stated, in part:

“ENDA would prohibit most workplaces in the United States, with exemptions for religious institutions, private membership clubs and certain small businesses, from discriminating against potential and existing employees on the basis of their sexual orientation or gender identity. As strong supporters of this legislation, we urge you to schedule a time for Committee members to consider this proposed legislation.”

“ENDA embodies the American ideal of fairness: employees should be judged on their skills and abilities in the workplace, and not on their sexual orientation or gender identity. While some states prohibit public and private employment discrimination on the basis of sexual orientation and gender identity, recent studies have found evidence of continued widespread employment discrimination against LGBT people. Sadly, it is still legal for businesses in many states to fire someone based on their sexual orientation or gender identity.”

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Today, the U.S. District Court in Bangor rejected UPS Cartage Services, Inc.’s (UPS) argument that a federal whistleblower law which protects truck drivers, the Surface Transportation Assistance Act (STAA), did not prohibit it from retaliating against a truck driver who reported safety problems with its trucks. Former UPS truck driver, Dennis Manske, represented by the Maine Employee Rights Group, brought this case against UPS after it terminated him because he reported safety problems with its trucks.

As required by federal law, Mr. Manske documented many safety problems with UPS trucks that constituted violations of DOT regulations. These deficiencies included, but were not limited to, loose U-bolts; problems with mirrors; the use of a “city truck” on the highway even though it lacked the ability to sufficiently accelerate; a seat that did not adequately protect the driver’s head; and shocks so bad that they caused Mr. Manske to bounce up out of his seat and hit his head on the ceiling of the cab. Ultimately, UPS decided it did not want to employ Mr. Manske because he kept pointing out these safety problems with its trucks–even though federal law required him to point out the problems.

UPS argued that STAA and Maine’s Whistleblower Protection Act (MWPA) do not prohibit an employer from firing a truck driver for reporting these type of safety problems. In advancing this argument, UPS attempted to distort the facts. At one point in its opinion, the court went so far as to call UPS’s denial of certain facts “inexplicable and frivolous.” Ultimately, the court held that STAA prohibits trucking companies from retaliating against drivers who report the type of safety issues that Mr. Manske reported. The Court refrained from ruling on whether the MWPA prohibits this type of retaliation because it found that UPS had not adequately developed an argument on that issue.

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