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 . . .

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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.

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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.

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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.”

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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.

The War on Women: The Supreme Court Edition

Read it here.

You’ve no doubt heard the news by now – last week, on the last day of its term, the Supreme Court issued two major decisions limiting the rights of employees. Both cases were decided by slim 5-4 majorities, with the Justices falling on typical ideological lines. What’s striking to me is how these decisions show a profound lack of understanding and empathy not only for workers in general, but for female workers in particular. Perhaps it’s no surprise that in both cases, the five-Justice majority was comprised completely of men, while the three female Justices on the Court dissented.

In Burwell v. Hobby Lobby, the conservative majority struck down the Affordable Care Act’s requirement that corporations pay for insurance coverage for contraceptives, finding that it violated the corporations’ federal right to religious freedom.

The Court decided that Hobby Lobby, described by the Court as closely held for-profit family business (with about 30,000 employees!), was a “person” who had a right to religious freedom under a federal law passed in ’93, the Religious Freedom Restoration Act. Hobby Lobby’s owners claimed that it offended their religious beliefs to fund insurance coverage for contraceptives like the morning-after pill and IUDs, which they believe are similar to abortion. (The scientific evidence does not support that belief.)

This case will have broad and immediate repercussions for working women. Without insurance coverage, many low-income women will likely be unable to afford some of the most effective forms of birth control. Emergency contraception (like the morning-after pill) costs about $45 without insurance, and an IUD, one of the most effective means of birth control, costs upward of $1000 – several weeks’ pay for many workers. This could mean more unintended pregnancies, more abortions, and more pregnancy-related health issues. And although the Supreme Court suggested that Congress could instead require insurance companies (or the federal government itself) to pay for the contraceptive coverage, that kind of legislative fix is unlikely to happen anytime soon in this political climate.

As Justice Ginsburg noted in dissent, the majority’s decision in Hobby Lobby was one of “startling breadth.” Although the majority emphasized that it was talking only about “closely held” corporations, the ruling could easily be extended to all for-profit companies – and in any event, closely held corporations represent about 90% of American businesses. And as the dissent pointed out, if owners can object to insurance for contraceptives on religious grounds, what is to stop them from refusing coverage for vaccines, or blood transfusions, or even paying women equal pay for equal work?

The Supreme Court’s second 5-4 decision a week ago last Monday, again along ideological lines, had less obvious – but equally real – implications for working women. In Harris v. Quinn, the Supreme Court ruled that thousands of unionized home health-care workers can’t be forced to pay fair-share union fees to support union contract negotiations. This means that even though the union is legally required to represent everyone within its bargaining unit, unit members will not be required to pay anything for that representation. The ruling allows “quasi-public” employees like the home health workers to free-load, paying nothing for union representation even as they benefit from it. It could lead to thousands of employees opting out of the union while enjoying union benefits.

This is a blow not just for unionized workers but for working women in particular. Home health-care workers are disproportionately women (particularly women of color). Even though they perform the incredibly important and difficult work of caring for our elderly and disabled, they typically receive very low wages and minimal benefits. Before Illinois recognized the union to represent home health workers, there was huge worker turnover and wages were extremely low. In the decade since unionization, wages have risen from $7 to $13/hour, training has increased, workers have gained health insurance, qualifications have been standardized, and retention has increased. And contrary to popular belief, this hasn’t cost the state money – instead, it has saved the state $632 million. But with the Supreme Court’s recent ruling, this vulnerable group of working women may have lost their most important protection, effective union representation.

The attacks on women just keep coming. All I can hope is that voters will remember this at the election this November – when, after all, women make up more than 50 percent of the electorate.