When making any employment decision, whether it’s to hire, fire, promote, or demote an employee, each and every employer in Maine must be aware of the Maine Human Rights Act. See 5 M.R.S. § 4551-4634.
The Maine Human Rights Act (“MHRA” or “the Act”) is Maine’s own anti-discrimination law. The MHRA prohibits discrimination based on race, color, ancestry, national origin, sex, sexual orientation, gender, gender identity or expression, physical or mental disability, religion, age, whistleblower status, and potentially other personal characteristics in certain contexts.
The Act prevents discrimination based upon one of the aforementioned classes in the areas of employment, as well as in the areas of housing, public accommodation, education, and the extension of credit. The MHRA’s fair employment laws apply to all Maine employers. Therefore, if an aggrieved employee feels as though he or she has been discriminated against by an employer based on the employee’s membership in a protected class, the employee may have a claim under the MHRA.
The MHRA and its conditions are enforced by the Maine Human Rights Commission (“the Commission”). It is the job of the Commission to receive, review, investigate, and attempt to resolve complaints of discrimination without court involvement. After the Commission receives a complaint from the aggrieved employee, its role is to conduct an investigation, interpret and apply the provisions of the MHRA to the complaint and the evidence received through the investigation process, issue a decision, and, if reasonable grounds are found, attempt to conciliate the dispute.
Alternatively, if the complaining employee so chooses, he or she may request a right-to-sue letter from the Commission after the complaint has been pending for 180 days. This allows the employee to bring suit directly to Superior Court, prior to the Commission completing its investigation. The employee must file a lawsuit within either (a) two-years of the act of unlawful discrimination or (b) 90 days after the issuance of the right-to-sue letter– whichever is later.
Unfortunately, many employers are not aware of the Maine Human Rights Act until it is too late and they are either served with a civil complaint or a complaint from the Commission. The best way for employers to get ahead of any complaints and/or lawsuits is to familiarize themselves with the MHRA, the Commission’s process of handling complaints, and where to turn when a complaint is made against them. Below will give you, as an employer, the basics having to do with the MHRA and help you understand how to better protect yourself and your business.
What is discrimination?
Discrimination is defined as the unjust or prejudicial treatment of different categories of people, depending on their membership in a particular class. For the purposes of employment discrimination, the protected classes include the categories of race, color, national origin, ancestry, age, religion, physical or mental disability, sex, sexual orientation, gender, gender identity or expression, familial status, genetic predisposition or information, those who have previously sought and received an order of protection from abuse, those protected under the Maine Whistleblowers Act, those who have previously filed a workers’ compensation claim, and those who have previously asserted an MHRA complaint or who have opposed any act or practice that is unlawful under the MHRA. An employer may not make employment decisions or take adverse employment actions against an employee based on his or her membership in any protected class or status.
Discrimination is generally designated into three categories: disparate treatment, disparate impact, and hostile environment.
- Disparate treatment is discrimination that occurs when an individual is treated less favorably than others because of his or her class
- Disparate impact is discrimination that occurs when a specific policy or practice does not appear on its face to be discriminatory, but in fact operates in a discriminatory manner by disproportionately and adversely impacting members of a protected
- A hostile work environment exists when someone is being harassed or mistreated because of his or her membership in a protected class and the harassment or mistreatment is
severe or pervasive enough to create a working environment that a reasonable person would consider intimidating, hostile, or abusive. A hostile work environment claim may be based on a single incident if it was particularly severe, although more typically, these claims are based on a pattern of discriminatory and abusive behavior over a period of time. For behavior to rise to the level of a perceived hostile environment, it must be severe or pervasive to the point that the environment is abusive, and must be both subjectively offensive to the complaining employee and objectively offensive to the average person.
What happens when an employee files a complaint?
When an employee believes he or she has been discriminated against, the first step is to file a complaint with the Commission. Under the Maine Human Rights Act, the employee’s complaint must be filed within 300 days of the date of the incident of discrimination. This time period effectively operates as a statute of limitations set by the MHRA.
Once the employee’s complaint has been filed, the Commission will notify the employer, known as the “Respondent” in the matter. The employer/Respondent will be sent a copy of the complaint and be given the opportunity to respond to the allegations against them.
After the employer/Respondent submits its response, the Commission will forward that information to the employee and provide the employee with an opportunity for rebuttal. Once the employee has submitted a rebuttal, the Commission will assign an investigator to the case. The investigator may request additional information from either or both sides, conduct interviews of parties or witnesses, etc. At the conclusion of the investigation, the investigator will prepare a written report that summarizes both parties’ provisions, details of the investigator’s factual findings, and the investigator’s decision of whether or not “reasonable grounds” exist to
conclude that unlawful discrimination occurred.
The Commission also offers options for mediation to attempt to resolve the matter before a case is taken to court. The mediators are offered to the parties at a low cost and can be a great help in facilitating a settlement agreement.
What are the grounds for a finding of discrimination?
The Commission is tasked with deciding whether or not there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission will issue a reasonable grounds finding when it believes that there is at least an even chance of the employee prevailing in a civil lawsuit.
What happens at the end of the investigation?
The investigator will write a report detailing his or her findings, and most importantly whether or not the investigator has found that reasonable grounds exist to believe there was discrimination against the employee.
The parties are then given an opportunity to submit a statement of disagreement with the investigator’s report. Ultimately, the Commission will hold a public hearing to hear and decide each case.
If neither side indicates disagreement with the investigator’s report, then the Commission will place the report on its consent agenda. This means that the Commission will vote to adopt the investigator’s recommendation without further argument at one of its upcoming hearings.
On the other hand, if either or both sides submit a statement of disagreement, the Commission will schedule the case for arguments at one of its hearings. Both sides, as well as the investigator, will be given an opportunity to argue their case before the Commission. Once the arguments
have concluded, the Commissioners will discuss the case and then vote on whether or not to find that reasonable grounds exist.
If the Commission concludes that there are no reasonable grounds, it will close its file. The employee can then, if desired, file a lawsuit in the Maine Superior Court for employment discrimination.
If the Commission does in fact find reasonable grounds, it will usually first attempt to conciliate or resolve the case by some sort of agreement between the parties. If conciliation is successful, generally there will not be any need for a civil lawsuit. However, if conciliation fails, then the employee and the Commission each have the option of filing a civil suit in the Maine Superior Court.
If the employee and/or the Commission choose to file a lawsuit, they must do so within the later of either (a) 2 years after the act of discrimination, or (b) 90 days after the dismissal of the complaint or the failure of conciliation, as applicable.
Do I get to argue my case?
Yes. Once the investigator’s report is complete, it is sent to both parties for their review. If one or both of the parties are not satisfied with the report, they may file written objections to the findings. If either party objects to the findings, the parties may be given the opportunity to appear before the Commission and argue their case.
Additionally, if a lawsuit is filed, you are permitted to present your entire defense as you would in any other matter before the court.
When do I need to hire an attorney?
As usual, it is always in your best interest to consult an employment law attorney as quickly as possible after an incident occurs. Consider consulting an attorney regarding employment practices before a complaint is made, when a complaint is made and received by the employer, and/or at any point during the Commission investigation.
How do I prevent complaints being filed against me and/or my business?
First, familiarize yourself with what constitutes workplace discrimination and harassment and do not discriminate against anyone, for any reason, based upon their membership in a protected class of individuals.
Past this, make sure you are using sound business practices. For example, always have an
up-to-date employee handbook available specifically outlining that discriminatory behaviors will not be tolerated in your workplace and your values as an employer. Next, make sure that your management, upper-level staff, and supervisors are all properly trained and educated on the Maine Human Rights Act and how to navigate potential issues involving protected classes. An additional step may be to establish an internal system for reporting abusive or discriminatory comments or behaviors to supervisors, management, or human resources.
Finally, the best answer is to consult with an employment law attorney to keep up to date with
the legislation, procedure, and case law involving the MHRA and to ensure that your business is compliant with all regulations and requirements.
If you or someone you know has questions about workplace discrimination or harassment,
consult us at Rudman Winchell and we can help you with your inquiry.