• 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 federal First Circuit Court of Appeals has affirmed a jury verdict against the Providence Fire Department (PFD) in a sexual harassment lawsuit filed by a lesbian who formerly served as a lieutenant in PFD. The plaintiff, Lori Franchina, suffered severe sexual harassment and after she reported the harassment to PFD she experienced severe retaliation. Some of the harassment and retaliation included: a man on the first day he met her telling her that he could impregnate her if she wanted because he knew she was a lesbian; this same man later opened the closed door to Franchina’s bedroom in the firehouse, walked in while she was getting undressed, and refused to leave until the third time she asked him to “get the f—k out”; multiple people used sexist epithets to refer to her; another person tampered with her food and made her sick; and, in one disgusting incident, someone flung blood and brain matter from a suicide victim on her. To remedy the damages that Franchina suffered, Franchina was awarded $806,000.

One of the legal hurdles that Franchina had to overcome to win this case was that she had to argue that she experienced discrimination based on her sex, not just her sexual orientation. This is because the First Circuit previously determined, about 20 years ago in a case called Higgins, that the law Franchina sued PFD under, Title VII, does not prohibit sexual orientation discrimination.

The First Circuit judges in this case distinguished the facts of Higgins from the facts of Franchina’s case because Franchina suffered harassment not just because she was gay but, rather, because she was both a woman and a gay person. Thus, the First Circuit found that this case fit into a category of Title VII cases called “sex-plus” cases. A common type of sex-plus case is where a woman with children gets discriminated against not just because she is a woman but, rather, because she is a woman with children. Similarly, Franchina experienced harassment (a form of discrimination) not just because she was a woman but, rather, because she was a woman who was gay.

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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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A Suffolk County jury slapped the Massachusetts Water Resources Authority (MWRA) with a $1.2 million verdict yesterday because it discriminated against an employee who needed medical leave.

The employee, a data resources manager, suffered from nerve tumors in his feet which required surgery and recovery time. The employee had a pre-planned vacation to Mexico scheduled for the period of time he was going to be recovering from his surgery. His doctor said he could go on the vacation and he told MWRA about the vacation when he requested medical leave. Even though his doctor cleared him to go to Mexico during his medical leave, MWRA fired him supposedly for going to Mexico during his medical leave.

The employee’s lawyer argued to the jury that MWRA’s claimed reason for firing the employee was illogical, false, and just a pretext to fire him because he needed medical leave. Given the verdict, the jury obviously bought the employee’s lawyer’s argument.

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Maine Senator Susan Collins, and one of her colleagues in the Senate, recently sent a letter to Facebook, Google, and Linkedin expressing concern about job advertisements that target only workers in certain age groups. This is the same issue that we discussed last week because there is a class action lawsuit against companies that have been posting these job advertisements.

“By targeting employment advertisements to specific age groups, certain users may be denied the ability to view job opportunities. We write today to express our concerns related to such targeting and to inquire as to the use of age-based advertising tools in hiring practices,” said Senator Collins in her letter. The letter asked the companies to provide her with certain information by January 31, 2018, which will help her to better understand the issue.

Targeting certain demographic groups with social media job advertisements is an interesting issue. Of course, a company can use this ability to target demographic groups for discriminatory reasons, seeking to exclude certain groups of people from its work force. However, some employers may want to use this same technology to target certain demographic groups that are under represented in their companies.

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student-849825_1920-300x200T-Mobile, Amazon, Cox Communications, Facebook and many other companies are defending a new class action lawsuit which alleges that they have engaged in systemic age discrimination by targeting younger workers with Facebook job advertising. The lawsuit seeks relief for millions of older workers who are excluded from this advertising.

These companies have allegedly used Facebook’s targeted advertising system to show job ads to Facebook users based on their ages. The lawsuit alleges that Facebook actually requires companies to select the age range of the people who will see the ad in their Facebook news feed.

The lawsuit includes examples of job ads which say that the person viewing it was targeted because of their age. For example, there is an advertisement for a position with Cox Media Group which says that the viewer is seeing the ad, in part, because they are between the ages of 20 and 45.

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Minimum wage workers in Maine will receive a pay increase to $10 per hour starting on January 1. This is a scheduled increase mandated by minimum-wage legislation enacted after a voter referendum in 2016. The minimum wage will continue to increase to $12 per hour by 2020 and then will increase yearly after 2020 to keep pace with inflation. As we previously reported, there is an exception to the minimum wage increase for tipped workers and some lawmakers want to make further changes to the law.

Maine’s minimum wage is in the middle of the pack both nationally and in New England. New Hampshire’s minimum wage is pegged to the federal minimum wage of $7.25 per hour while Massachusetts’ minimum wage is $11 per hour.

Unemployment is relatively low nationally and in Maine.  That low unemployment rate also creates some upward pressure on wages. With fewer workers to choose from, employers have to offer higher wages to attract applicants. This is a particular issue in the hospitality industry in southern Maine. “I think that for most of the industry, the labor shortage is so acute that people are paying above minimum wage anyhow,” said Steve Hewins, president and CEO of the Maine Restaurant Association and Maine Innkeepers Association.

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6981747143_3772d3caa0_oA federal court in Connecticut has determined that a jury could reasonably find that Yale New Haven Health Services Corporation (“Yale”) discriminated against a female employee because she needed to pump breast milk at work. The court found that discrimination against an employee for pumping breast milk violates both federal and state laws that protect employees from pregnancy discrimination.

Because Yale argued that the court should dismiss the female employee’s lawsuit through summary judgment, the court’s decision described the facts in the light most favorable to the female employee. According to the court, the managers at Yale at first had no problem with the female employee pumping breast milk in her shared office or in her supervisor’s office. When she got a new supervisor, however, Yale instituted a new policy that required the female employee to pump breast milk in a designated lactation room. When the female employee inquired about this new policy, she was told that someone had complained about her pumping breast milk in an office.

The female employee complied with the new policy at first but trekking down to the lactation room to pump breast milk interfered with her ability to do her job. The female employee served as a Clinical Bed Manager and her job required her to communicate with other Yale employees regarding admissions, discharges, and transfers of patients. She could not communicate with other employees while she was in and walking to and from the lactation room.

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The New York Times recently published an article that discussed a variety of steps that experts say employers can take to reduce the amount of sexual harassment in the workplace. This article provides helpful information that you could present to your employer if it is interested in addressing problems of harassment in the workplace.

The experts who spoke to the New York Times identified five things that employers should do:

(1) Bystander training – Oftentimes victims of harassment have allies that do not know how they can best help the victim. Employers should train employees on how they can help victims. This type of training is still rare in companies but colleges, the military, and non-profit organizations have successfully used it.

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With the current cultural emphasis on the epidemic of sexual harassment in the workplace, it is a good time to discuss how the law can help victims. Laws that prohibit sexual harassment aremetoo-2859980_1920-300x200 one tool that can be used to help victims.

There are state and federal laws that prohibit sexual harassment. In most cases, a victim of sexual harassment has 300 days from the last date of harassment to pursue legal action. The first legally required step in most cases is to file a charge of discrimination with the Maine Human Rights Commission (MHRC) or the U.S. Equal Employment Opportunity Commission (EEOC). The MHRC or EEOC will investigate your charge but in the vast majority of cases neither the MHRC nor EEOC will pursue legal action against the employer. For that reason, it is important for you to have legal representation when you file your charge because you’re most likely going to have to press your case yourself.

There are two major things victims of sexual harassment must show in order to prevail in a lawsuit. First, the victim must show that they experienced harassment that was so severe or pervasive that it affected their employment, unreasonably interfered with their work performance, or created an intimidating, hostile, or offensive work environment. Second, the victim must prove there is a basis to hold their employer liable for the harassment. The standard for proving employer liability varies depending on the harasser’s position within the employer’s hierarchy and the form of the harassment. The EEOC has regulations and guidance that discuss the different legal standards but, basically, the higher the harasser is in the employer’s hierarchy, the easier it is to hold the employer liable for the harassment.

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In the face of a number of employment discrimination lawsuits against Tesla, the company published an email from CEO Elon Musk that one of the lawsuits referenced. Musk’s email covers a lot but the part that struck us was the following:

“We have had a few cases at Tesla where someone in a less represented group was actually given a job or promoted over more qualified highly represented candidates and then decided to sue Tesla for millions of dollars because they felt they weren’t promoted enough. That is obviously not cool.”

Musk’s message to his company seems to express to his employees that it is “not cool” when an employee files a discrimination lawsuit against the company that Musk believes lacks merit. The example Musk uses in his email sounds like a meritless claim but the line between what is and is not a valid claim of discrimination almost always depends on your perspective. Managers at Tesla who are inclined to retaliate against employees that accuse them of discrimination likely feel emboldened by Musk’s message. If one of these managers punished an employee who complained that the manager discriminated against him, telling the employee it was “not cool” to file such a complaint, the manager could clearly point to Musk’s email and say, “I was just saying the same thing as Mr. Musk.”  This is not the type of message the leader of a company should send to their employees.

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