Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action”

High court rules against Shaw’s in age discrimination suit

Read the entire story here at Mainebiz.

Maine’s highest court ruled Tuesday against Shaw’s Supermarkets in an age-discrimination case that could have implications for other employers in the state.

The Maine Supreme Judicial Court ruled Tuesday that Maine employers trying to justify what they consider to be neutral employment policies or practices, but which happen to have a significant adverse “disparate impact” on older workers, are required by state law to meet the same strict standards that have been applied to race and sex bias cases.

The court ruling in “Scamman v. Shaw’s Supermarkets” states that one test Maine employers must apply is a requirement that they look for alternative, equally effective means to accomplish the same goals as the challenged practices, but which have a lesser adverse impact on older workers.

“It adopts a standard for pursuing an age discrimination claim that is easier to meet than the federal standard,” said Jeffrey Young, an attorney with Johnson, Webbert & Young in Augusta. Young represented Louise Scamman and four other Maine full-time employees of Shaw’s Supermarkets whose jobs were terminated in 2012 as part of a reduction in the company’s workforce.

In a phone interview with Mainebiz from the law firm’s Portland office, Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action” certification for the plaintiffs in the Scamman case and approximately 100 other Shaw’s employees who lost their jobs in 2012 and were between the ages of 50 and 60 years old. He said a class-action lawsuit would seek damages for lost wages for the affected Shaw’s employees in Maine.

A key point in the decision, he said, is that Shaw’s only discharged full-time employees in its 2012 workforce reduction. Because full-time employees were, on average, older than their part-time counterparts, the layoffs affected more older workers than younger employees.

Lori Parham, Maine state director for AARP, which had filed as a “friend of the court” in the case, applauded the court’s ruling.

“The court fully agreed with AARP, the older workers who brought the case, and the Maine Human Rights Commission which also weighed in on the older workers’ side,” she said in a written statement. “This decision preserves a key tool for older workers in Maine who are disadvantaged at work, but cannot show ‘smoking gun evidence’ of their employer’s intent to fire them based on ageism.”

Maine AARP in a release about the ruling stated that the court rejected Shaw’s legal argument that standards in federal law more favorable to employers — under the federal Age Discrimination in Employment Act — also should apply under Maine law. AARP said the court rejected Shaw’s contention that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers is “reasonable” and not that it is justified by “business necessity.”

“Maine’s Supreme Judicial Court rejected the claim that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers claim because the ADEA language that creates a ‘reasonable factor other than age’ defense does not appear in Maine human rights law,” AARP stated.

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Katler says ruling protects all Maine workers from illegal retaliation.

Read the entire story here in the Kennebec Journal.

A human rights panel sided with a Farmingdale man in an employment discrimination complaint . . .

……….

The Maine Human Rights Commission voted 2-1 Monday to find reasonable grounds to believe a Farmingdale man, Conrod Wilson, was a victim of retaliation when he was fired within a week of telling management he believed he was a victim of race discrimination.

Wilson had complained to the commission about his termination from his job with GIRI Community Drive LLC/GIRI Hotel Management of Augusta/Best Western of Augusta.

……….

Wilson, who previously lived in Randolph, worked for the hotel in the housekeeping department from March 2011 until his firing on Feb. 21, 2013. He was removed from his job as breakfast room attendant, described as a desirable post, in Feb. 14, 2013, and given other housekeeping/cleaning responsibilities.

“He was told quote, ‘Management wants an older white woman in that position,’” Wilson’s attorney, Max Katler, told commissioners.

When Wilson told management he believed that was unlawful discrimination, Wilson was fired, Katler said.

……….

The case now moves into a conciliation phase, and Katler said after the hearing that if that process fails, he anticipates moving forward with a federal lawsuit against the hotel.

“The MHRC has sent Best Western an important message that it cannot punish employees who report reasonable concerns about illegal discrimination in the workplace,” Katler said later via email. “This ruling protects all Maine workers from illegal retaliation and reminds all employers that Maine has a zero tolerance policy for discrimination in the workplace.”

……….

Black Nurse’s Discrimination Lawsuit Can Proceed. David Webbert says, “the ruling was an important one.”

Read the entire story here at the Bangor Daily News.

A lawsuit filed by a black nurse who says she was taunted on a daily basis while working at the Maine State Prison can proceed, a federal judge has ruled.

Cannell’s attorney David Webbert said Tuesday the ruling was an important one, since there has been a trend in the workplace for companies to subcontract work and then deny responsibility when discrimination occurs.

He said the prison has a poor track record and is behind the times in treatment of blacks and women in the workplace.

 

 

 

Sidney woman, represented by Max Katler, wins at Maine Human Rights Commission

The Maine Human Rights Commission decided earlier this week that there are reasonable grounds to believe Brenda Webber was a victim of disability discrimination.

Read the full story here at the Kennebec Journal.

A state human rights panel sided with a former housekeeper at a Waterville hotel earlier this week, finding reasonable grounds to believe she was a victim of disability discrimination when she was fired after asking for a 12-week leave under the Family Medical Leave Act following two heart attacks and coronary bypass surgery.

Brenda Webber, of Sidney, had worked for the Waterville Hampton Inn for a year before her April 12, 2013, heart attack.

After Webber’s termination, she filed a complaint with the Maine Human Rights Commission. She was represented by attorney Max Katler.

. . . . . . . .

Webber had alleged she was a victim of discrimination because of her physical disability — coronary artery disease. She said the hotel refused to grant a reasonable accommodation of unpaid medical leave or to allow her to work in a light duty position and instead terminated her from her job.

. . . . . . . .

The commission voted to find that there were reasonable grounds to believe Webber was subjected to disability discrimination for failure to accommodate and for termination.

. . . . . . . .

Cases with reasonable grounds findings move into a conciliation stage. They can become grounds for lawsuits.

 

 

 

Webbert responds to Brunswick School Department’s denial student’s civil rights were violated

Read the full article at The Forecaster here.

m-brun-lawsuitBRUNSWICK — The School Department and Brunswick Junior High School Principal Walter Wallace on Aug. 7 denied allegations of unlawful discrimination against a child who was pervasively bullied in school between 2010 and 2012.

The complaint against the department and Wallace was filed in U.S. District Court in Portland on July 7 by the mother of the former student and the Maine Human Rights Commission.

It claims the child, whose identity is protected by a pseudonym, was “subjected to chronic, severe, pervasive, and objectively offensive verbal and physical harassment and abuse,” which resulted in him dropping out of school.

The alleged abuse ranged from other students stabbing the child with a pushpin to see if he would “deflate,” to three sexual assaults.

The plaintiffs argue that Wallace was “deliberately indifferent to the harassment,” repeatedly telling the mother “boys will be boys.” They argue the School Department and Wallace violated the child’s federal civil rights.

According to MHRC Executive Director Amy Sneirson, this is the first time the commission has sued a School Department over a case of bullying.

Wallace and the School Department denied nearly all the allegations in a 12-page answer to the complaint filed last week.

They also claim that a fact-finding report by MHRC investigator Victoria Ternig was not “thorough or careful.”

. . . . . . . .

They also say the plaintiffs inaccurately characterize the school’s proposed safety plan, and argue that the complaint fails to  “state a legally cognizable claim.”

School Department attorney Melissa Hewey on Monday said the plaintiffs make some “creative legal theories, but case law just doesn’t support those claims. I anticipate we’ll ask the court to dismiss the case on legal grounds.”

On Tuesday, plaintiffs’ David Webbert said he was “surprised by how uninformative the (defendants’) answer was. … It seemed to deny things that were indisputable, like certain things that were right from the MHRC report.”

Webbert said he was “disappointed” the defendants consistently claimed to have”no information or belief” about multiple aspects of the case, such as the alleged sexual assaults.

“To have them admit they hadn’t investigated sexual assaults, that was pretty shocking,” Webbert said.

As for the defense that no “legally cognizable” claims were made, Webbert argued that “they’re saying (this case) is so unimportant and trivial it shouldn’t have been filed. … that’s disappointing given how serious the allegations are.”

On Monday, U.S. Magistrate Judge John Rich set a deadline to complete discovery by Jan. 8, 2016. A trial is not expected until next May.

Katler says, “Ruling protects all Maine workers from illegal retaliation . . . “

Read the full article here at the Kennebec Journal/Morning Sentinal.

AUGUSTA — A human rights panel sided with a Farmingdale man in an employment discrimination complaint and a Skowhegan landlord in a housing discrimination complaint.

The two were among the local cases handled Monday by the Maine Human Rights Commission. The panel’s findings are not law, but may become grounds for lawsuits.

The Maine Human Rights Commission voted 2-1 Monday to find reasonable grounds to believe a Farmingdale man, Conrod Wilson, was a victim of retaliation when he was fired within a week of telling management he believed he was a victim of race discrimination.

Wilson had complained to the commission about his termination from his job with GIRI Community Drive LLC/GIRI Hotel Management of Augusta/Best Western of Augusta.

In a separate issue, the commission voted 3-0 against Wilson on his charge that he was a victim of discrimination because of race, color, national origin/ancestry, age and sex. Wilson, now 37, is originally from Jamaica, according to the report of the commission investigator.

Wilson, who previously lived in Randolph, worked for the hotel in the housekeeping department from March 2011 until his firing on Feb. 21, 2013. He was removed from his job as breakfast room attendant, described as a desirable post, in Feb. 14, 2013, and given other housekeeping/cleaning responsibilities.

“He was told quote, ‘Management wants an older white woman in that position,’” Wilson’s attorney, Max Katler, told commissioners.

When Wilson told management he believed that was unlawful discrimination, Wilson was fired, Katler said.

The management, through attorney Bob Kline, told commissioners that Wilson was fired because he failed to re-clean a large bathroom in a common area after being told to do so and walked off the job. According to the commission investigator’s report, management also said that Wilson repeatedly failed to turn in required checklists about the work he had done each day.

The case now moves into a conciliation phase, and Katler said after the hearing that if that process fails, he anticipates moving forward with a federal lawsuit against the hotel.

“The MHRC has sent Best Western an important message that it cannot punish employees who report reasonable concerns about illegal discrimination in the workplace,” Katler said later via email. “This ruling protects all Maine workers from illegal retaliation and reminds all employers that Maine has a zero tolerance policy for discrimination in the workplace.”

Wilson said after the hearing that he has since found employment in another industry. Kline was in a meeting and unavailable to respond after the hearing.

Race Discrimination and Retaliation Lawsuit

Read the full article at the Bangor Daily News here

WARREN, Maine — A former nurse at the Maine State Prison has filed a federal lawsuit against the private company that provides health care to Maine corrections facilities, claiming she was subjected to frequent racial taunts and that her employer retaliated by firing her when she complained.

Attorney David Webbert of Augusta filed the civil rights lawsuit Tuesday in U.S. District Court in Portland on behalf of Shana E. Cannell, who worked as a licensed practical nurse at the prison from February through October 2010. The lawsuit names Corizon LLC and three of its employees — Brian Castonguay, Larry Brayhall and Tammy Hatch.

Webbert said that the prison was aware of the actions of Corizon although the state is not named in the lawsuit. The lawsuit states that some prison staffers also made derogatory comments toward Cannell, who is black.

Cannell, who now lives in St. Louis, Missouri, claims in the lawsuit that she was subjected to racial slurs. She said when she complained to her supervisors she was given less favorable assignments and ultimately fired.

In her lawsuit, Cannell lists the derogatory comments made by co-workers. In addition to the slurs, she said that other employees would say that “cleaning up messes is what your people do,” “of course your people like chocolate, a chocolate for a chocolate,” and “I can be the fried chicken and you can be the watermelon.” One of the people accused of making the comments was fellow nurse Brayhall.

The woman said she went both to Castonguay, who was the director of nursing, and Hatch, who was the administrator.

“Defendants orchestrated and condoned a continuing campaign of harassment against Cannell because of her race and in retaliation for her opposition to the unlawful race discrimination and harassment in the workplace,” the lawsuit states.

Cannell claims in the lawsuit that after she made her complaints there was an incident in which she was not protected when an inmate made serious and repeated threats against her personal safety, and that her car was ransacked while she was at work.

Social Media in the Job Hunt

Read it here.

Apple just introduced its new iPhone 6. I saw on the news that people were camped in line for up to a week before the doors opened at their Apple store so they could be among the first to own the phone. People who didn’t have a place in line were willing to pay up to $1,400 to take someone else’s place. Sound crazy?

My family consists of iPhone and iPad users. My wife and children use them all the time to post photos and comments on Facebook. My older daughter, who just obtained her Master’s Degree, is currently looking for a great job in her new field. I see some of her Facebook posts. None of them are inappropriate to me, but sometimes I wonder what a prospective employer might think. The person hiring for some employer may have very different views than I on what’s appropriate and what’s not. I know about the prevalence of social media searches being conducted by employers today.

According to a 2012 survey, 37% of companies said they used social networking sites to research job candidates. Another 11% said they planned to start. Fast forward two years to 2014, and another survey found that 77% of employers are using social media to evaluate candidates.

The 2012 survey, conducted by Harris Interactive, included more than 2,000 hiring managers and human resource professionals across various industries and a wide range of company size. What are they up to? They are using social media to evaluate a candidate’s character and personality outside the confines of the traditional interview process. Here are some of the things they were looking for: 65% said to see if the person presented himself or herself professionally; 51% responded that they were using it to see if the candidate would be a “good fit;” 35% were looking to see if the candidate was well-rounded; 12% were looking for reasons not to hire the candidate.

Here’s the thing to be concerned about. One-third (34%) of the hiring managers said they found information that caused them not to hire a candidate. The information ranged from evidence of inappropriate behavior to information that contradicted their listed qualifications. Examples were the posting of provocative or inappropriate photos or information (49%), information about drinking or using drugs (45%), evidence of poor communication skills (35%), bad-mouthing a previous employer (33%), making discriminatory remarks related to race, gender, religion, and the like (28%), and evidence of lying about qualifications (22%).

And here’s something of more concern. Some unscrupulous hiring managers are using information obtained through social media or the internet in a discriminatory manner. According to an April 11, 2014 report on NPR, research shows that some employers are unlawfully discriminating based on what they find in social media. One project conducted at Carnegie-Mellon University involved setting up fake identities of equally qualified candidates who identified their religion only in social media. Those who self-identified as Muslim on-line averaged 17% fewer callbacks nationally.

But there’s a positive side too, which shows that social media can actually help a candidate. The 2012 survey showed that in addition to looking for red flags, employers were looking for information that could give a job seeker an advantage. Three out of 10 managers reported that they found something that caused them to hire a candidate based on factors such as a good “feel” for the person’s personality (58%), conveying a professional image (55%), background information that supported professional qualifications (54%), evidence of a well-rounded individual with a wide range of interests (51%), great communication skills (49%), creativity (44%), and other people posting positive comments about the candidate (34%).

So what do we tell our children about their social media? Pay attention to what you are posting and how it may look to potential employers and others. Think before you post. Be aware that potential employers may be using your posts and information to formulate opinions about you that they will use in hiring decisions. Create a positive image of yourself and avoid negativity.

America Turns 238: Three Reasons to Celebrate!

Read it here

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” Virtually every American knows these opening words to Lincoln’s Gettysburg Address memorializing those who died in the Battle of Gettysburg July 1-3, 1861, some 151 years ago today. We learned–or memorized–them in high school, in college, from our parents, teachers, brothers and sisters.

In fact, our nation was not conceived in liberty or dedicated to the proposition that all men (let alone women) are created equal. When our nation was born on July 4, 1776, there were slaves in every state of the Union. Altogether, there were over half a million slaves at the time of the Revolution. Of course, Thomas Jefferson, the author of the Declaration of Independence, himself owned slaves. Indeed, Article I Section 2 of the Constitution, written a decade and half after the Declaration, provided that for purposes of calculating electoral representation, slaves counted as 3/5 of a person (although they of course could not vote).

So how do we reconcile Jefferson’s lofty language and Lincoln’s timeless oratory some 85 years later with the reality that was America in 1776? I think the key is to regard these proclamations as inspirational and aspirational, not as fact. Rather, the central theme of our great nation from its founding 238 years ago has been one of struggle to achieve the ambitious goal of equality.

I thought about the Declaration and recalled Lincoln’s famous speech this past week while attending a conference in Boston. The conference opened with a tribute to the 50th anniversary of the Civil Rights Act of 1964, which outlawed discrimination based upon race, color, sex, religion, and national origin, and to several unsung heroes of the struggle for equality. We met Percy Green II, an activist who in 1964 climbed the Gateway Arch in St. Louis to protest that no colored workers (as they were known then) were employed in the construction of the landmark and who also brought a case of race discrimination which every employment lawyer is familiar with today. We heard from Sheila White, a black woman who in 1997 was the only female working in the Maintenance of Way Department at Burlington Northern Railroad. Her case reached the Supreme Court after her boss, who did not believe women should be working on the railroad, retaliated against her for complaining about his sexually harassing behavior.

During a break from the conference, I was privileged to attend the ceremony celebrating the appointment of my friend Indira Talwani, a woman of Indian descent, as a federal district judge in Massachusetts. Her presence as a judge was striking against a tableau of largely older gray-haired male judges.

Percy Green. Sheila White. Indi Talwani. Three Americans you probably never have heard of. They are all living proof of how far we have come as a nation in our struggle for equality. And their life stories and triumphs are all reason for us to celebrate this Independence Day.

Happy July 4!