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Legislation to clarify the definition of what constitutes a disability in the workplace has been printed and sent to the Joint Standing Committee on Judiciary for a public hearing.
LD 1027, An Act to Clarify the Definition of “Physical and Mental Disability” in the Maine Human Rights
Act, sponsored by Sen. Peter Mills (R-Somerset), will be one of the most important pieces of legislation for the business community considered by the 123rd Legislature in 2007.
The bill arises out of a Maine Supreme Court ruling handed down in April of 2006. In a split decision (4-3) concerning the Whitney v. WalMart case, the court held that the definition of “physical or mental disability” in the Maine Human Rights Act did not permit defining a disability as one that “substantially limited a major life function.” Instead, the court ruled that the definition of disability in the Maine Human Rights Act was much broader, more so than the federal Americans with Disabilities Act (ADA), and did not require a showing of a “substantial limitation” in order to qualify as disabled. As a consequence of this ruling, rules developed by the Maine Human Rights Commission (MHRC) in the mid-1980’s, which interpreted the statute and were based on the ADA interpretation of disability, were void.
Throughout the summer and early fall, the MHRC attempted to again develop rules to provide clarity to both employers and employees as to what constituted a “disability” in Maine law. Representatives of the plaintiff bar, disability rights advocates, and business community representatives – including Peter Gore of the Maine State Chamber and James Erwin of Pierce Atwood – met with MHRC staff with little success. While a rule was eventually proposed and adopted by the commission, both Gore and Erwin contended that the only real way to help narrow the scope of Whitney’s impact was to change the statute. Both Gore and Erwin also expressed concern that any subsequent rules designed to address the Whitney decision would only cause additional confusion and hold false hope for employers as they tried to sort out the court’s ruling and its impact on the workplace.
Employers are now concerned that they cannot accurately determine what constitutes a disability, given the very broad language in the statute. As such, any employer who may need to take an adverse employment action or who refuses to meet an accommodation request, may be open to protracted and expensive litigation, based on an allegation of ADA discrimination.
LD 1027 restores the definition of disability in Maine law that this state, the Maine Human Rights Commission, employers, and employees, had operated under for more than 20 years. It focuses the definitions of “physical or mental disability” to one that substantially limits one or more of a person’s major life activities. It brings Maine law back into conformity with the federal Americans with Disabilities Act. It is not an attempt to roll back civil rights protections, or a way for employers to treat people with a disability unfairly. It simply returns the bar to the same position Maine had understood the definition to be prior to Whitney.
The Maine State Chamber has joined with a broad based coalition of employers to support LD 1027. We are working with the Association of Builders and Contractors and others to make the legislature and the governor aware of the seriousness of this problem.
It is expected that the bill will be scheduled for a public hearing in the coming weeks. It will be important for employers to express their concerns on this issue to the judiciary committee at that time. For additional information or questions, please contact Peter Gore by calling (207) 623 4568, ext. 17, or by emailing
pgore@mainechamber.org.
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