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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Entries in Appeal (30)


Seventh Circuit Holds Sexual Orientation Bias Exists Under Title VII

Earlier this week, the Seventh Circuit in an en banc (all member of the court participating as opposed to only three) decision held that Title VII’s ban on sex discrimination encompasses discrimination based on sexual orientation.  The 8-3 ruling represents the first federal court of appeals ruling to find that Title VII covers sexual orientation bias.

While many state statutes prohibit discrimination on the basis of sexual orientation or gender identity, Courts across the country diverge on whether sexual orientation is protected under Title VII.  This decision (Hively v. Ivy Tech Community College of Indiana) overruled previous Seventh Circuit precedent and makes it much more likely that the Supreme Court will grant review to determine whether Title VII prohibits sexual orientation bias.  Judge Diane P. Wood authored the opinion and noted that the ruling needed to be “understood against the backdrop” of Supreme Court decisions that had discussed sexual orientation including the 2015 decision recognizing a constitutional right to same-sex marriage.

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Can the Gravity of the Employer’s Reasons for Termination Outweigh the Employee’s Evidence of Retaliation?

As employment lawyers we have seen some pretty awful examples of behavior in the workplace. If we are involved, we are usually helping our clients weigh the risk of litigation against the need to remove an employee from the company. When we consult with people we usually ask about whistleblowing activities.  After telling us about a report the employee might have made, or complaints the employee might have, our clients ask, “but doesn’t the employee’s bad behavior weigh against any claim that they are a whistleblower?” A jury will certainly weigh an employer’s reason for termination against the reasons argued by the employee, but do you want to trust a jury with that decision and pay attorneys' fees for getting the case to that point?

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Employee Again Shows Genitals to Co-Workers: Litigation Again Follows

Dear reader, we know that after seeing this headline, you are saying to yourself: Super; and in other news, scientists have determined that the big bright thing in the sky is pretty warm. Fear not, however, because in this tale of southern exposure, the alleged harassment victim did the pants dropping (!) Plus, there’s stuff about softball, fortune telling and allegations of breakfast food with a side order of sexual innuendo.

(Like you’re not going to keep reading.)

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Worked to Death in the Keystone State

While we often remind employers that complaints about on-the-job stress could be a reportable event to a workers’ compensation carrier, we do not often warn employers not to work their employees “too hard” or “to death.” In this case, however, that was exactly the question at issue—did Lower Bucks County Joint Municipal Authority work an employee to death?

Robert Dietz worked for the Lower Bucks County Joint Municipal Authority as a field maintenance worker, doing work involving heavy physical labor, for 20 years. On November 7, 2007, however, Mr. Dietz suffered a fatal heart attack while working—he was 48 years old. As a result of his death, his wife, Judith Dietz filed a fatal claim petition with the Workers’ Compensation Board alleging that Decedent’s work caused his heart attack and death.

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Second Circuit Stops Runaway Train of Claims Potentially Falling Within the Lilly Ledbetter Fair Pay Act

In an uncertain world, statutes of limitations provide some certainty and security for employers potentially facing employment related claims. However, the Lilly Ledbetter Fair Pay Act of 2009 (the “Fair Pay Act”) extends the statute of limitations for certain claims. Under the Fair Pay Act, the statute of limitations for filing a claim for discrimination in compensation starts anew each time an employee receives a paycheck affected by discrimination. For employment discrimination plaintiffs whose claims otherwise fall outside of the statute of limitations, the Fair Pay Act can be a powerful tool to resuscitate otherwise time-barred claims. On Wednesday, however, the Second Circuit issued a decision limiting the types of claims the Fair Pay Act applies to.

In Davis v. Bombardier Transportation Holdings, Inc., the plaintiff worked for a company that operates AirTrain, a computer driven train that transports passengers between major hubs in New York City and John F. Kennedy International Airport. After returning from disability related leave, the plaintiff failed a physical and eye exam which disqualified her from returning to her former position. Because she could not return to her former position, Bombardier demoted the plaintiff to a different position with lower pay.

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Watch Out Employers: Complaints to Harassing Supervisor = Protected Activity

The Sixth Circuit Court of Appeals just potentially opened up a big ole can of employer liability.

In EEOC v. New Breed Logistics, the Court affirmed its prior decision that for purposes of a retaliation claim, a complaint to a supervisor that he stop his sexually harassing conduct – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity under Title VII. The opinion recognized that other courts have concluded that a complaint directed solely to a harassing supervisor does not constitute protected activity - and rejected it, holding that if “the other elements of a prima facie case are present, a harassment claim only becomes a retaliation claim if, after the harassee opposes the harassment, the harasser initiates adverse action against the victim. Thus, giving retaliation victims protection where they complain to the harasser will not morph all harassment claims into a retaliation claim, absent some materially adverse action.”

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