EEO - Discrimination: Maine
Federal law and guidance on this subject should be reviewed together with this section.
Author: Ronald W. Schneider, Bernstein Shur Sawyer & Nelson
- The Maine Human Rights Act (MHRA) prohibits discrimination in employment based on race, color, sex, sexual orientation, physical or mental disability, age, religion, ancestry, national origin, or because of the previous assertion of a claim or right under Maine's Workers' Compensation Law. See Discrimination Under the Maine Human Rights Act.
- Maine has a broader definition of mental and physical disability than the ADA. See Disability.
- Unlike the ADA, the MHRA does not impose a duty on an employer to engage in the interactive process but does provide an employer with an affirmative defense to a claim that the employer failed to provide a reasonable accommodation. See Disability.
- Maine law covers any person of legal working age from age discrimination unlike the federal law, which protects people over the age of 40. See Age.
- The MHRA provides for a wide-range of remedies. Punitive damages may be awarded against certain employers, but only if the employee demonstrates that the employer acted with malice or with reckless indifference to the rights of the plaintiff. See Remedies.
Discrimination Under the Maine Human Rights Act
The Maine Human Rights Act (MHRA), was enacted to prevent discrimination in employment on account of race, color, sex, sexual orientation, physical or mental disability, age, religion, ancestry, national origin, or because of the previous assertion of a claim or right under Maine's Workers' Compensation Law. +5 M.R.S.A. §§ 4551 et seq. The MHRA is administered and enforced by the Maine Human Rights Commission (MHRC).
The MHRA applies to any employer, irrespective of the number of employees, which are defined as individuals employed by an employer except individuals employed by parents, spouses, children although such individual are considered employees for the purposes of disability discrimination. +5 M.R.S.A. § 4553(3). An employer "includes any person in this State employing any number of employees, whatever the place of employment of the employees, and any person outside this State employing any number of employees whose usual place of employment is in this State; any person acting in the interest of any employer, directly or indirectly; and labor organizations, whether or not organized on a religious, fraternal or sectarian basis, with respect to their employment of employees." +5 M.R.S.A. § 4553(4).
Discrimination Provisions and Protected Class Status
The MHRA declares freedom from employment discrimination because of one's protected status to be a civil right. +5 M.R.S.A. § 4571. Under the MHRA, an employer cannot discriminate in hiring or employment based on the following:
- Sexual orientation;
- Physical or mental disability;
- Age (any age);
- National origin; or
- A previous assertion of a claim or right under Maine's Workers Compensation Law.
Effective September 19, 2019, amendments to the MHRA take effect. See Future Developments.
The MHRA declares age discrimination unlawful regardless of a person's age unless federal or state law prohibits the employment of that person. +5 M.R.S.A. § 4573 (1-A)(A); +5 M.R.S.A. § 4574(3)(A). An employer may not as a condition of employment require or permit an employee to retire at a specified age or after the completion of a specified number of years. +5 M.R.S.A. § 4574(3)(B). An employer may use a normal retirement age which is used for the purpose of determining eligibility for retirement benefits, so long as the normal retirement age is not used in any way to require an employee to retire at a certain age. +5 M.R.S.A. § 4553(6-A); +5 M.R.S.A. § 4574(4).
The MHRC regulations declare it to be unlawful to "classify any job according to age or to maintain separate lines of progression or separate seniority lists based on age where this would adversely affect any employee" unless the employer can demonstrate that age is bona fide occupational qualification (BFOQ), for that job. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.07(C). SeeBona Fid Occupational Qualification. An employer also may not establish a seniority system or line of progression that creates "light" and "heavy" jobs if the employer's distinctions function as an age classification or create an unreasonable obstacle to an employee's advancement because of his age. A labor organization or an employer may, however, adopt a maximum age in apprenticeship programs.
Sexual orientation is broadly defined to mean "a person's actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression." +5 M.R.S.A. § 4553(9-C).
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Maine law prohibits discrimination based in whole or in part on a person's national origin, which includes not just where the person was born but also where the person's ancestors were born. +5 M.R.S.A. § 4572; 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.11. In its regulations, the MHRC explicitly states the Maine Human Rights Act "protects all individuals of a particular country of national origin, such as Spanish-surnamed or Franco Americans." 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.11. The MHRC further interprets the MHRA to prohibit discrimination against lawfully immigrated individuals, including naturalized citizens and resident aliens.
By way of example, the MHRC declares it unlawful ethnic discrimination :
- To use English language tests to screen out persons whose mother tongue or first language is not English unless using English is a necessary requirement of the work to be performed;
- To use height and weight requirements which are beyond a particular group's national norms unless the employer can show that the height or weight requirements are necessary for the successful performance of the job involved; or
- To require an employee to be a U.S. citizen unless the requirement is imposed in the interests of national security "pursuant to a statute of the United States or an Executive Order of the President with respect to the particular occupation or place of work involved."
94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.11.
The MHRC specifically recognizes an exception to the prohibition of discrimination in employment on account of ancestry or national origin when such discrimination is based on a BFOQ. The MHRC construes the BFOQ exception very narrowly and requires an employer to prove that all or substantially all members of one national origin would be unable to perform the normal duties of the job involved. Employers cannot seek refuge in the BFOQ exception if it bases its selection on assumptions or stereotyped characterizations. Nor can an employer rely on the preferences of co-workers, the employer, clients or customers. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.11.
The MHRA prohibits discrimination in employment of a "qualified individual with a disability," which the law defines as "an individual with a physical or mental disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires." +5 M.R.S.A. § 4553(2); +5 M.R.S.A. § 4553(8-D); +5 M.R.S.A. § 4572. Employers cannot utilize standards, criteria or methods of administration that:
- Have the effect of discrimination on the basis of disability; or
- That perpetuates the discrimination of others who are subject to common administrative control.
Under the MHRA, a physical or mental disability is defined as a physical or mental impairment that:
- Substantially limits one or more of a person's major life activities;
- Significantly impairs physical or mental health; or
- Requires special education, vocational rehabilitation or related services.
The law specifically provides that "the definition of 'physical or mental disability' in section 4553-A is intended to be interpreted broadly to create greater coverage than under the federal Americans with Disabilities Act of 1990." +5 M.R.S.A. § 4554(4).
The MHRSA also provides a list of impairments considered to be disabilities without regard to severity: absent, artificial or replacement limbs, hands, feet or vital organs; alcoholism; amyotrophic lateral sclerosis; bipolar disorder; blindness or abnormal vision loss; cancer; cerebral palsy; chronic obstructive pulmonary disease; Crohn's disease; cystic fibrosis; deafness or abnormal hearing loss; diabetes; substantial disfigurement; epilepsy; heart disease; HIV or AIDS; kidney or renal diseases; lupus; major depressive disorder; mastectomy; intellectual disability; multiple sclerosis; muscular dystrophy; paralysis; Parkinson's disease; pervasive developmental disorders; rheumatoid arthritis; schizophrenia; and acquired brain injury. +5 M.R.S.A. § 4553-A(1)(B).
Physical or mental disability does not include:
- Sexual behavior disorders;
- Compulsive gambling;
- Pyromania ;
- Tobacco smoking; or
- Psychoactive substance use disorders resulting from current illegal use of drugs.
Failure to make a reasonable accommodation to a known physical or mental limitation is also unlawful unless the employer can show that the accommodation would impose an undue hardship. +5 M.R.S.A. § 4553(2).
The MHRA provides that a reasonable accommodation includes, but is not limited to making existing facilities readily accessible to and usable by a disabled employee. A reasonable accommodation also may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, or the provision of qualified readers or interpreters. +5 M.R.S.A. § 4553(9-A).
Undue hardship or undue burden is defined as "an action requiring undue financial or administrative hardship." +5 M.R.S.A. § 4553(9-B). The subsection also lists a long set of factors to be considered. To avoid the imposition of damages for the failure to reasonably accommodate an employee's disability, an employer may show that it acted in good faith to make reasonable accommodations that would provide the employee with "an equally effective opportunity and would not cause an undue hardship" on the employer's business. +5 M.R.S.A. § 4613(2) (B) (8) (b).
Unlike the ADA, the MHRA does not impose a duty on an employer to engage in the interactive process. See Kezar v. Central Maine Medical Center, +2012 ME 54, 40 A.3d 955. The MHRA provides an affirmative defense to a claim that the employer failed to provide a reasonable accommodation but there is no independent action for an employer's failure to engage in the interactive process.
The MHRA prohibits discrimination based on a person's gender as well as stereotypical ideas about a person's gender. +5 M.R.S.A. § 4572. It is also an unlawful employment practice to forbid or restrict the employment of married women when such a prohibition or restriction is not applicable to married men. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.06(E).
Unless the employer can justify the use of a sex-specific job title in a help wanted advertisement or job posting as the BFOQ exception, an employer may not use a sex-specific job title if the use of such sex-specific job title operates to discourage members of one sex from applying for a job for which they are qualified. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.06(H).
Under Maine law, +26 M.R.S.A. § 807, employers must annually notify employees about the illegality of sexual harassment, the definition of sexual harassment under state law, a description of sexual harassment, utilizing examples, the internal complaint process available to the employee, the legal recourse and complaint process available through the MHRC, directions on how to contact the MHRC; and the protection against retaliation as provided pursuant to Section 4553(10) (D) of the MHRA. The notice may be provided with employees' paychecks or paystubs to ensure that all employees receive notice.
Employers with 15 or more employees must educate and train all new employees within one year of employee's date of hire. The new employees' education and training program must include at a minimum the topics covered in the annual notice as well as the definition of sexual harassment under state and federal laws and federal regulations, including the Maine Human Rights Act and Title VII.
Finally, employers with 15 or more employees shall conduct additional training for supervisory and managerial employees within one year of commencement of employment that includes, at a minimum, the specific responsibilities of supervisory and managerial employees and methods that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints. With respect to supervisory and managerial employees, it would be wise for all employers to train such employees regardless of the number of employees the employer has.
Sex Harassment Posting
Maine law, +26 M.R.S.A. § 807, imposes on employers the obligation to post "in a prominent and accessible location in the workplace a poster" advising employees about the illegality of sexual harassment; a description of sexual harassment, and directions on how to contact the commission. As mandated by the Maine Human Rights Commission, all Maine employers must post the Maine Human Rights Act Prohibits Sex Discrimination Poster.
The MHRA states that it is unlawful to discriminate against a pregnant woman unless the differential treatment is based on a bona fide occupational qualification. +5 M.R.S.A. § 4572-A.
The MHRC's Employment Regulations protect employees with disabilities related to pregnancy or childbirth. Specifically, the regulations state, "[d]isabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, or related medical conditions, and recovery therefrom, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment." +CMR 94-348-003, Section 11. See Future Developments; Disabilities (ADA): Maine.
The MHRA prohibits discrimination in employment on account of a person's religion. +5 M.R.S.A. § 4572.
Defining a Religious Entity
The MHRA defines a religious entity as an employer unless the entity is a nonprofit and it acts with respect to the employment of employees who are members of the entity's same religion. Specifically, the MHRA provides, "employer does not include a religious or fraternal corporation or association, not organized for private profit and in fact not conducted for private profit, with respect to employment of its members of the same religion, sect or fraternity, except for purposes of disability-related discrimination, in which case the corporation or association is considered to be an employer.'" +5 M.R.S.A. § 4553(4). While there is no case law construing this provision, the plain language indicates that a Catholic school run by a Church would not be free to discriminate against a Muslim unless the organization has taken advantage of the MHRA's provision that allows a religious organization to "require that all applicants and employees conform to the religious tenets of that organization." +5 M.R.S.A. § 4573-A (4).
Like other prohibitions on discrimination, the MHRC recognizes a BFOQ exception to religious discrimination, which again is very narrowly construed by the MHRC. Employers cannot utilize a BFOQ defense based on assumptions, stereotyped characterizations or preferences of coworkers, the employer or customers. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.10.
An employer's obligation not to discriminate on religious grounds includes an employer's obligation to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship to the conduct of the employer's business. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.10. An employer may not refuse to hire a person or terminate an employee who regularly observes Friday evening and Saturday, or some other day of the week, as the Sabbath or who observes certain special religious holidays during the year and, as a consequence, does not work on such days, unless the employer can prove that there exists no reasonable accommodation of such religious needs or that such accommodations can only be made at the price of undue hardship.
Bona Fide Occupational Qualification
The MHRA permits an employer to discriminate against an employer if the employer can show a bona fide occupational qualification (BFOQ) to justify the differential treatment. The Maine Law Court, Maine's highest court, has warned that because the BFPOQ exception is contrary to the intent of the MHRA, the exception is narrowly construed. To prevail on a defense based on the exception, an employer must demonstrate:
- That "the essence of the business operation requires the discriminatory practice"; and
- That "there was a factual basis for the belief that all or substantially all persons in the excluded category would be unable to perform the job in a safe or efficient manner."
See LeBlond v. Sentinel, +635 A.2d 943 (Me. 1993).
As mentioned above, the MHRC construes the "BFOQ provision very narrowly and requires an employer to prove that all or substantially all members of one sex would be unable to perform the normal duties of the job involved." 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.06(A)(1).
Any personnel or employment record (including, but not limited to: employment application forms, applicant and employee rating sheets, tests, and other records having to do with job referral, hiring, promotion, demotion, transfer, lay-off, rates of pay or other terms of compensation, seniority, labor organization memberships or selection for training or apprenticeship) made or kept by an employer, employment agency or labor organization shall be preserved for a period of at least one (1) year from the date of the making of the record or the personnel action involved, whichever occurs later. When an employee has been involuntarily terminated, the personnel records of the individual terminated shall be kept for a period of one (1) year from the date of termination. 94-348 Employment Regulations of the Maine Human Rights Commission, ch. 3, Section 3.03. Records in a personnel file may be maintained in any form including paper, microfiche or electronic form. The employer shall take adequate steps to ensure the integrity and confidentiality of these records.
An employer maintaining records in a form other than paper shall have available to the employee, former employee or duly authorized representative the equipment necessary to review and copy the personnel file. +26 M.R.S.A. § 631.
Employment records that identify a person's features may not be used for the purpose of discrimination but must be kept and used in good faith solely for identification purposes. +5 M.R.S.A. § 4573. Employment records of a person's physical or mental disability must be collected, if collected, and maintained on separate forms and in separate files and be treated as confidential.
Use of Illegal Drugs
Although one who currently uses illegal drugs is not considered disabled under the MHRA, the MHRA does not permit an employer to exclude a person who has:
- Successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in such use;
- Is participating in a supervised rehabilitation program and is no longer engaging in such use;
- Is erroneously regarded as engaging in such use, but is not engaging in such use; or
- In the context of a reasonable accommodation in employment, is seeking treatment or has successfully completed treatment.
Even though marijuana remains illegal under federal law, Maine law permits the use of marijuana for recreational purposes and for medical purposes under certain circumstances. See EEO - Discrimination: Maine.
Employer and Individual Liability
The MHRA applies to all employers regardless of how many employees they have. Specifically, the MHRA defines an employer to "includes any person in this State employing any number of employees, whatever the place of employment of the employees, and any person outside this State employing any number of employees whose usual place of employment is in this State; any person acting in the interest of any employer, directly or indirectly; and labor organizations, whether or not organized on a religious, fraternal or sectarian basis, with respect to their employment of employees." +5 M.R.S.A. § 4553(4).
The MHRC interprets the MHRA to impose individual liability on a supervisor, which is an interpretation inconsistent with Federal law and most court decisions in the Maine state and federal courts. In 2000, the Maine Law Court issued but then withdrew a decision that did permit an action against a supervisor. Since that time, however, the Maine Superior Court and the Maine Federal District Court decisions have consistently applied federal precedent and refused to impose individual liability against individuals. See Maine Human Rights Commission v. Coffee Couple, LLC, +2011 U.S. Dist. LEXIS 61768 (D. Me. 2011).
The MHRA provides for a wide range of remedies. +5 M.R.S.A. § 4613. In response to a finding of unlawful discrimination, a court may enjoin unlawful behavior, reinstate an employee with or without back pay and award attorney's fees to the prevailing party. +5 M.R.S.A. § 4613 and +5 M.R.S.A. § 4614. A jury or court may award compensatory damages, which does not include back pay, and punitive damages upon a finding of intentional unlawful discrimination. Punitive damages, which are not available against a governmental entity, may be awarded only if the plaintiff demonstrates that the employer acted with malice or with reckless indifference to the rights of the employee.
If an employer has less than 14 employees, the plaintiff's damages is limited to civil penal damages in the amount of $20,000 for the first offense, $50,000 for the second and $100,000 for the third. If an employer has more than 14 employers, the MHRA provides a limitation of damages for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other non-pecuniary losses and the amount of punitive damages as follows:
- In the case of an employer who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
- In the case of an employer who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000;
- In the case of an employer who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000; and
- In the case of an employer who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $500,000.
Enforcement Through Main Human Rights Commission and Judicial Proceedings
The Maine Human Rights Commission (MHRC) is the five-member independent state agency charged with enforcing the MHRA. The commissioners serve terms of five years. The MHRC has the duty of investigating all forms of invidious discrimination whether by public agencies or private persons. +5 M.R.S.A. § 4566. To carry out its duties, the MHRC retains the authority to investigate complaints of discrimination, to hold hearings, to subpoena documents and individuals, and to make and publish the results of their investigations.
The MHRA provides for conciliation or an attempted informal resolution involving a complainant, the respondent, and the MHRC The amendments clarify that a conciliation occurs after a finding by the Commission that unlawful discrimination has occurred.
In order to be eligible to be awarded civil penal, compensatory, or punitive damages or attorney's fees, an employee must first exhaust his or her administrative remedies by commencing an action before the MHRC within 300 days of the act of alleged discrimination. +5 M.R.S.A. § 4611 and +5 M.R.S.A. § 4622(1). If within 180 days of a complaint being filed with MHRC, the MHRC has not filed a civil action or completed its process, the employee may request a right-to-sue letter.
If the employee wishes to pursue his or her claim after the MHRC process, he or she must commence an action in Maine Superior Court the later of either:
- Not more than two years after the act of unlawful discrimination complained of; or
- Not more than 90 days after any of the following occurrences:
- MHRC dismissal based on a finding that no reasonable grounds existed to believe that discrimination occurred;
- The MHRC failed to enter into a conciliation agreement with the employee as a party within 90 days after finding reasonable grounds to believe that unlawful discrimination occurred;
- The MHRC issued a right-to-sue letter; or
- The MHRC dismissed the case in error.
Generally, Maine courts are guided by federal law when interpreting and applying the MHRA. Thus, discrete concepts within such claims, such as undue hardship and reasonable accommodation with respect to a disability claim, or BFOQ with respect to age discrimination, will basically be treated the same as under federal law.
As recommended by the Maine Human Rights Commission, all Maine employers should post the Maine Equal Employment Rights Poster.
Maine enacted the Workplace Smoking Act of 1985, which requires employers to have a written smoking/non-smoking policy that may prohibit smoking on all business premises, must prohibit smoking indoors, and must prohibit smoking outdoors except in designated smoking areas. +22 M.R.S.A. § 1541; +22 M.R.S. § 1580-A. The policy may restrict smoking to designated areas, or may ban smoking throughout the workplace. A designated smoking area must be outdoors and at least 20 feet from entryways, vents, and doorways. Maine law also prohibits smoking in enclosed areas of workplaces open to the public.The law makes it illegal to discriminate against an employee who assists in the supervision or enforcement of the Act. +22 M.R.S.A. § 1580-A(6). A designated smoking areameans an outdoor area where smoking is permitted, which must be at least 20 feet from entryways, vents and doorways.
Further, in Maine an employer is prohibited from discriminating against an employee or applicant who smokes or uses tobacco products outside the course of employment, provided that an employee or applicant complies with any workplace policy on tobacco use. +26 M.R.S.A. § 597. However, the employer may adopt policies regarding use of tobacco products at work, or in or upon employer premises. Pursuant to an amendment to Maine law, an employer may offer a voluntary wellness program providing incentives for stopping tobacco use in compliance with applicable federal regulations. +2017 Me. ALS 219.
An employer may not fail or refuse to hire, discharge or otherwise discriminate against an employee or applicant for employment :
- On the basis of genetic information concerning that individual;
- Because of that individual's refusal to submit to a genetic test or make available the results of a genetic test; or
- On the basis that the individual received a genetic test or genetic counseling, except when based on a bona fide occupational qualification.
The Maine Human Rights Commission is obligated to enforce discrimination based on genetic information and testing.
Maine has a family and medical leave that applies to any private employer that employs 15 or more employees at one location in this State and any city, town or municipal agency that employs 25 or more employees. +26 M.R.S.A. §§ 843 et seq.
Maine law prohibits requiring an employee or an applicant to submit to an HIV test except when based on a bona fide occupational qualification. The employee's status may not be affected or changed if the employee declines to be tested, because of the results of the test or if the employee exercises any rights under the law. +5 M.R.S.A. § 19204-B.
The Maine Equal Pay Law prohibits unequal pay based on sex. +26 M.R.S.A. § 628. Specifically, an employer may not discriminate between employees on the basis of sex by paying wages to any employee at a rate less than the rate at which the employer pays any employee of the opposite sex for comparable work on jobs that have comparable requirements relating to skill, effort and responsibility. Pay differentials based on a seniority systems or merit increase systems or difference in the shift or time of the day worked are lawful so long as such a system does not discriminate on the basis of sex are not within this prohibition.
Effective September 17, 2019, the Act Regarding Pay Equality amends the Maine equal pay law and restricts salary history inquiries except under certain circumstances. See Future Developments.
An employer may not retaliate against any employee who invokes or assists in any manner with the enforcement of Maine's Equal Pay Law. As recommended by the Maine Department of Labor, all Maine employers should post the Maine Equal Pay Poster.
Under the MHRA it is also an unlawful employment discrimination to discriminate with respect to compensation because of sex (including pregancy and related medical conditions) except when based on a bona fide occupational qualification. +5 M.R.S.A. § 4572-A(1).
Under the Equal Pay Law, an employer may not prohibit an employee from disclosing the employee's own wages or from inquiring about another employee's wages if the purpose of the disclosure or inquiry is to enforce the rights provided by the law. +26 M.R.S.A. § 628.
Effective September 17, 2019, the Act Regarding Pay Equality amends the MHRA and prohibits current employees from disclosing another employee's wages if the purpose of the disclosure or inquiry is to enforce equal pay rights. See Future Developments.
Lactation/Breastfeeding Protections and Accommodations
Maine law states that "a mother may breast-feed her baby in any location, public or private, where the mother is otherwise authorized to be." +5 M.R.S.A. § 4634.
An employer may not discriminate in any way against an employee who chooses to express breast milk in the workplace.
An employer must make a reasonable effort to provide nursing mothers with appropriate space (not a bathroom stall) to express breast milk in a private, secure and sanitary location. This may be the employee's normal work space if it meets these requirements. An employer must provide nursing mothers with reasonable break time to express breast milk for up to 3 years following the birth of a child. It may be paid or unpaid, at the employer's discretion and may be the employee's regular break periods. +26 M.R.S.A. § 604.
Federal law continues to prohibit the use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
Notwithstanding this, Maine law permits the use of marijuana for recreational purposes and for medical purposes under certain circumstances. However, an employer:
- Does not need to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
- Is permitted to enact and enforce workplace policies restricting the use of marijuana and marijuana products by an employee; or
- Is permitted to discipline employees who are under the influence of marijuana in the workplace in accordance with the employer's workplace policies regarding the use of marijuana and marijuana products by employees.
+28-B M.R.S. § 112 (replacing the repealed Marijuana Legalization Act, 7 M.R.S. § 2454).
Thus, there is no duty for an employer to accommodate marijuana use in the workplace either for recreational or medicinal purposes. An employer should continue to follow applicable drug testing policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.
Additionally, employers should note that the Adult Use Act provides that a person may not consume marijuana or marijuana concentrate in a designated smoking area as provided under the Workplace Smoking Act of 1985. +28-B M.R.S. § 112.
Maine law requires state government to have affirmative action plans to ensure equal opportunity to employment without regard to race, color, religious creed, national origin, sex, ancestry, age, physical handicap or mental handicap, unless related to a bona fide occupational qualification. +5 M.R.S.A. § 781. Private employers may but are not required to establish affirmative action plans. All affirmative action plans are reviewable by the Maine Human Rights Commission.
It is unlawful for any public or private employer to penalize any member of the National Guard or the Reserves of the United States Armed Forces, with regard to compensation, hiring, tenure, terms, conditions, or privileges of employment or to deny any other incident or advantage of employment due to the employee's membership or participation in the National Guard or the Reserves of the United States Armed Forces. It is also unlawful for an employer to discriminate against personnel of the National Guard or the Reserves of the United States Armed Forces. +37-B M.R.S. § 342.
Voluntary Veterans Preference
Maine law allows a private employer to have a veteran preference employment policy. Under this law, a private employer may apply a voluntary veteran preference to employment decisions regarding hiring, promotion or retention during a reduction in workforce. See Recruiting: Maine; +5 M.R.S.A. § 876. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.
Salary History Inquiry Restrictions
Effective September 17, 2019, the Act Regarding Pay Equality (the Act) amends the Maine Equal Pay Law and restricts an employer from making salary history inquiries and broadens existing wage discussion and disclosure provisions.
The Act prohibits an employer from inquiring about a prospective employee's compensation history (except under certain circumstances) until after a job offer, that includes all terms of compensation, has been negotiated and made to the prospective employee.
The Act also amends the Maine Human Rights Act, and provides that inquiring, either directly or indirectly, about the compensation history of a prospective employee is evidence of unlawful employment discrimination.
For more information please see Employment Offer: Maine.
Effective September 19, 2019, amendments to the MHRA take effect and clarify various provisions of the state antidiscrimination law.
- Expand the definition of an aggrieved person to include any person claiming to have been subject to unlawful discrimination based on protected class status, including discrimination based on the person's known relationship or association with a member of a protected class and discrimination based on perceived protected class status.
- Provide that conciliation or an attempted informal resolution of a complaint occurs after a finding by the Maine Human Rights Commission that unlawful discrimination has occurred.
- Expand the definition of discrimination to include acts of unlawful harassment as well as acts affecting all protected classes (i.e., race or color, sex, sexual orientation, gender identity, physical or mental disability, religion, age, ancestry, or national origin).
- Expand the definition of assistance animal. See Disabilities (ADA): Maine.
- Add gender identity as a protected class status and defines it as the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual's assigned sex at birth.
- Add leaves of absence to the list of potential reasonable accommodations for an individual with a disability.
- Make it unlawful for any public accommodation to designate a single-occupancy toilet facility as for use only by members of one sex. A single-occupancy toilet facility may be identified by a sign, as long as the sign does not indicate that the facility is for use by members of one specific sex. A single-occupancy toilet facility is a restroom for use by one user at a time or for family or assisted use and that has an outer door that can be locked by the occupant.
Effective September 19, 2019, employers are required to provide a reasonable accommodation for an employee's pregnancy or pregnancy-related condition, including lactation, unless doing so would impose an undue hardship on the employer's operations.
Reasonable accommodations may include more frequent or longer breaks, modified work schedules or equipment, relief from lifting requirements and lactation breaks (as provided by Maine law relating to breastfeeding breaks).
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.