A skilled attorney's ability to interpret the strength of an employee's claims and the potential for liability depends in part upon the existence of controlling precedent -- whether a court has analyzed a precise issue of law and rendered a judgment that serves to guide, and sometimes, control, subsequent courts.  Last April, a sharply divided Maine Law Court departed from federal precedent and ruled that individual supervisors could be found liable for violations of the Maine Human Rights Act.  In a rare reversal, however, that doctrine lasted less than four months before the Court decided to revise, on reconsideration, its own new precedent from Gordan v. Cummings.

Fortified by substantive arguments against the ruling submitted in briefs prepared by the Maine Chamber of Commerce and Maine Attorney General's Office, the defendant argued that deciding the issue was unnecessary since the plaintiff had failed
to satisfy administrative formalities set forth in state law.  The Law Court agreed, reasoning that this failure precluded her from recovering any form of remedy against the defendants through her lawsuit, which made issuance of important precedent addressing her right to proceed against a supervisor unnecessary and inappropriate.  
When it was first issued, Gordan meant that, for the first time, supervisors in Maine were subject to liability for statutory damages related to discriminatory or harassing conduct that violated the MHRA.  Although the Court may not have entirely backed off from that principle -- meaning that it might well issue a similar ruling in a subsequent appeal on another set of facts -- it did withdraw the precedential effect of Gordan.  Further complicating efforts to predict how the Court might rule on this issue in the future is the fact that Chief Justice Daniel Wathen and Justice Susan Caulkins did not participate in the first Gordan ruling.

As a by-product of the Court's initial ruling, the Maine Human Rights Commission -- recipient of the type of administrative filings that the plaintiff in Gordan neglected to pursue -- has begun to receive numerous charges of discrimination from employees naming supervisors as individual respondents in addition to their employers.  Thus, it is more likely than not that the Law Court will have another opportunity to address the liability of supervisors in the near future, once those proceedings wend their way from the Commission fact-finding process into state court.  Unlike then, however, state law does not provide for individual liability in the context of workplace discrimination claims.