March 2004 - Highlight

Discrimination Revisited

The Supreme Judicial Court of Maine, sitting as the Maine Law Court, revisited the issue of discrimination under the Workers' Compensation Act in two recent cases: Laskey v. Sappi Fine Paper, et al (820 A.2d 579, 2003) and Jandreau v. Shaw's Supermarkets, Inc., et al (2003 ME 134). In both cases, the Law Court held that facially neutral policies leading to job termination generally do not violate Maine's discrimination statute. That statute precludes an employee from being discriminated in any way "for testifying or asserting any claim" under the Act.

Laskey and Jandreau are interesting cases. Similar to the 1987 case of Lindsay v. Great Northern Paper (532 A.2d 151, Me. 1987), these cases involve facially neutral employment policies which the Court finds non-discriminatory; yet the Court struggles in its effort to avoid overruling Lindsay.

The pertinent facts in Lindsay were as follows: Great Northern, at the time, had a facially neutral "no fault" absenteeism policy which allowed for a limited amount of absences for work or non-work related reasons. If an employee exceeded the limit, he or she was subject to discipline. The policy did not distinguish between absences for work related reasons and non work related injury. Mr. Lindsay's recovery time from his injury exceeded the days allowed for absence, and he was disciplined.

The Law Court held that Mr. Lindsay's "assertion of a right not to work while physically incapacitated as a result of a work-related injury constituted a 'claim' under the Workers' Compensation Act." In spite of the fact that the discipline policy was neutral, the Court, through an imaginative and novel construction of the term "claim," held that a facially neutral policy was in fact discriminatory.

Sixteen years or so later, Mr. Laskey was terminated by Sappi Fine Paper based on a facially neutral policy which ended the employment of any employee who was not able to perform the essential function of their job. The Law Court held that Mr. Laskey was not discriminated against because Sappi's termination policy did not discriminate between work-related injuries, and non-work-related injuries.

The Law Court, in a footnote, distinguished Mr. Laskey's case by stating that Mr. Laskey was not asserting that working in his light duty job constituted a "claim," under the Act. It is not clear from the opinion whether Mr. Laskey did not present that argument to the Court, or whether the Law Court simply didn't think that working in a light duty job constituted a "claim."

A few months later, the Law Court decided that Diane Jandreau also was not discriminated against within the construct of the Act, when her employment status fell victim to a facially neutral policy terminating employment after a six-month absence from work.

In Jandreau, the Law Court made a clear effort to distinguish the pertinent facts from those in Lindsay. The Court states: "Unlike the employee in Lindsay, who was physically capable of returning to work after his injury, Jandreau has consistently maintained that she cannot return to her pre-injury employment, nor can she perform the alternative work that the employer offered to her."

Furthermore, the Jandreau Court opines that given the nature of the employee's injury, the six-month time period mandated in Shaw's absenteeism policy was a reasonable amount of time for the employer to make a "nondiscriminatory employment decision to terminate Jandreau based on her physical incapacity to return to work."

One may question whether or not the factual distinction the Court draws between the policy in Lindsay and that in Jandreau constitutes a legal distinction or a factual distinction. Both cases involve facially neutral policies, to promote a legitimate business goal: predictable and reliable attendance by its employees.

One could opine that Lindsay was not discriminated against by his employer any more than Laskey or Jandreau, but that a factual distinction was drawn to support the policy of res judicata; and that the factual distinctions which are drawn do not touch on the principle that facially neutral policies do not discriminate between workers' compensation and non-workers' compensation restrictions.

The conclusion which can be drawn from these three cases is that, as a general matter, facially neutral employment practices do not constitute discrimination. However, since the Court did not overrule Lindsay, facially neutral absenteeism policies, which include as non-excused absenteeism time out of work due to a work-related injury, may still be found to be discriminatory.

Furthermore, since the Jandreau Court chose to comment on the fact that it was improbable that Jandreau would return to work, as well as the length of time she had been absent from work, it seems that in individual cases the Hearing Officer may still have to make a factual/legal determination as to whether or not a facially neutral policy is discriminatory.

- Lawrence D. Goodglass, Esq.