September 5, 2005
COMMENTARY: The definition of disability | Maine's Supreme Judicial Court will soon decide an issue important to employers across the state
By Jim Erwin And Katy Rand
Attorneys, Pierce Atwood, Portland
Who is to be considered "disabled" and thus entitled to the benefits and protections of the Maine Human Rights Act? If you thought that question was resolved, a case now before the Maine Supreme Judicial Court requires Maine employers to think again. There is much at stake for Maine businesses.
Both federal and Maine law, of course, protect individuals from employment discrimination on the basis of disability. The problem arises because the federal Americans with Disabilities Act and the Maine Human Rights Act define "disability" using different terms. The ADA provides that a disability is an impairment that substantially limits an individual in the performance of one or more major life activities. The MHRA does not expressly refer to an impairment's effect on an individual's major life activities, defining "disability" to include, among other things, any "infirmity," "disfigurement" or "malformation."
The Maine Human Rights Commission, the agency charged with administering the law and certainly not regarded as a pro-employer organization, recognized the implications of these potentially inconsistent definitions 20 years ago. Concerned that the MHRA would be interpreted so broadly that it would cover individuals with mild or temporary impairments ˆ meaning virtually everyone in the workforce ˆ the commission adopted a rule interpreting the MHRA's definition of "disability" to be consistent with the ADA. Ever since, federal courts, where most discrimination cases are resolved, have interpreted Maine and federal law as protecting the same group of individuals: those with "substantial" impairments that significantly restrict them in the performance of one of more "major life activities."
However, both the commission rule and the body of case law that has developed interpreting the MHRA and ADA consistently have recently come under attack. Stanley Whitney worked for the North Windham Wal-Mart as a manager in a position requiring 48 hours per week. However, because of an asymptomatic heart condition he became limited to working only 40 to 45 hours a week. When Wal-Mart refused to accommodate his request for shorter hours, he sued, claiming he was disabled under the MHRA and thus entitled to an accommodation of this restriction.
Stanley's condition was clearly not a disability under the ADA or the commission's interpretive rule, so Stanley argued that the rule was invalid, and urged the court to find that there is no requirement under Maine law that an individual be substantially limited in any major life activity in order to be entitled to the benefits and protections of the MHRA. Invoking a rarely used procedure, U.S. District Court Judge D. Brock Hornby elected to certify to the Maine Supreme Judicial Court the following questions: 1) Does the MHRA require a substantial limitation of a major life activity, and 2) is the commission's interpretive rule valid?
The certification of these questions to the Maine's highest court has attracted the attention of groups on both sides of the issue. Whitney has been joined by the Maine Employment Lawyers Association, the Maine AFL-CIO and the Augusta-based Disability Rights Center in urging the court to reject the MHRC rule and years of settled precedent and adopt a reading of the Maine Human Rights Act that does not conform to the ADA. They argue that the Legislature consciously chose a different, and broader, definition to cover a much larger class of individuals with impairments or "infirmities" that are not necessarily enduring or even severe. The commission rule, they argue, is not a mere "clarification," but rather an attempt to amend the statutory definition of "disability," which they say exceeds the scope of the commission's rule-making authority.
On the other side, 10 business organizations, including the Maine and U.S. Chambers of Commerce, filed a friend of the court, or "amicus," brief supporting Wal-Mart's position and emphasizing the problems created by the position taken by Whitney, employment lawyers, unions and disability rights advocates. Since nearly every member of the population has some sort of "disfigurement" or "infirmity" at one time or another, their reading of the MHRA's definition of disability would seem to protect everyone, rather than a discrete group of individuals traditionally considered "disabled." Wal-Mart and its amici reminded the court that the purpose of the MHRA is to protect groups of individuals who have historically borne the brunt of prejudice and stereotyping from discrimination, not the population at large. The broader the group of individuals protected, the less the MHRA serves as an anti-discrimination law and the more it begins to resemble a law that merely regulates the workplace.
Whitney's interpretation of the MHRA would put Maine at odds not only with federal law, but also with the law of 43 other states, all of which define "disability" as an impairment that substantially limits one or more major life activities. For years, Maine businesses have conformed their policies and expectations to the standard embodied in the ADA. From their perspective, if Whitney prevails they will have to 1) learn a new set of rules, 2) accommodate far more employees and 3) attempt to make non-discriminatory, business-necessitated employment decisions in the face of an increased risk of costly litigation.
The Maine Supreme Judicial Court is expected to hear the case this fall and issue a decision late in the year. In the meantime, Maine's business and legal communities anxiously await the court's resolution of this important issue.
Who is to be considered "disabled" and thus entitled to the benefits and protections of the Maine Human Rights Act? If you thought that question was resolved, a case now before the Maine Supreme Judicial Court requires Maine employers to think again. There is much at stake for Maine businesses.
Both federal and Maine law, of course, protect individuals from employment discrimination on the basis of disability. The problem arises because the federal Americans with Disabilities Act and the Maine Human Rights Act define "disability" using different terms. The ADA provides that a disability is an impairment that substantially limits an individual in the performance of one or more major life activities. The MHRA does not expressly refer to an impairment's effect on an individual's major life activities, defining "disability" to include, among other things, any "infirmity," "disfigurement" or "malformation."
The Maine Human Rights Commission, the agency charged with administering the law and certainly not regarded as a pro-employer organization, recognized the implications of these potentially inconsistent definitions 20 years ago. Concerned that the MHRA would be interpreted so broadly that it would cover individuals with mild or temporary impairments ˆ meaning virtually everyone in the workforce ˆ the commission adopted a rule interpreting the MHRA's definition of "disability" to be consistent with the ADA. Ever since, federal courts, where most discrimination cases are resolved, have interpreted Maine and federal law as protecting the same group of individuals: those with "substantial" impairments that significantly restrict them in the performance of one of more "major life activities."
However, both the commission rule and the body of case law that has developed interpreting the MHRA and ADA consistently have recently come under attack. Stanley Whitney worked for the North Windham Wal-Mart as a manager in a position requiring 48 hours per week. However, because of an asymptomatic heart condition he became limited to working only 40 to 45 hours a week. When Wal-Mart refused to accommodate his request for shorter hours, he sued, claiming he was disabled under the MHRA and thus entitled to an accommodation of this restriction.
Stanley's condition was clearly not a disability under the ADA or the commission's interpretive rule, so Stanley argued that the rule was invalid, and urged the court to find that there is no requirement under Maine law that an individual be substantially limited in any major life activity in order to be entitled to the benefits and protections of the MHRA. Invoking a rarely used procedure, U.S. District Court Judge D. Brock Hornby elected to certify to the Maine Supreme Judicial Court the following questions: 1) Does the MHRA require a substantial limitation of a major life activity, and 2) is the commission's interpretive rule valid?
The certification of these questions to the Maine's highest court has attracted the attention of groups on both sides of the issue. Whitney has been joined by the Maine Employment Lawyers Association, the Maine AFL-CIO and the Augusta-based Disability Rights Center in urging the court to reject the MHRC rule and years of settled precedent and adopt a reading of the Maine Human Rights Act that does not conform to the ADA. They argue that the Legislature consciously chose a different, and broader, definition to cover a much larger class of individuals with impairments or "infirmities" that are not necessarily enduring or even severe. The commission rule, they argue, is not a mere "clarification," but rather an attempt to amend the statutory definition of "disability," which they say exceeds the scope of the commission's rule-making authority.
On the other side, 10 business organizations, including the Maine and U.S. Chambers of Commerce, filed a friend of the court, or "amicus," brief supporting Wal-Mart's position and emphasizing the problems created by the position taken by Whitney, employment lawyers, unions and disability rights advocates. Since nearly every member of the population has some sort of "disfigurement" or "infirmity" at one time or another, their reading of the MHRA's definition of disability would seem to protect everyone, rather than a discrete group of individuals traditionally considered "disabled." Wal-Mart and its amici reminded the court that the purpose of the MHRA is to protect groups of individuals who have historically borne the brunt of prejudice and stereotyping from discrimination, not the population at large. The broader the group of individuals protected, the less the MHRA serves as an anti-discrimination law and the more it begins to resemble a law that merely regulates the workplace.
Whitney's interpretation of the MHRA would put Maine at odds not only with federal law, but also with the law of 43 other states, all of which define "disability" as an impairment that substantially limits one or more major life activities. For years, Maine businesses have conformed their policies and expectations to the standard embodied in the ADA. From their perspective, if Whitney prevails they will have to 1) learn a new set of rules, 2) accommodate far more employees and 3) attempt to make non-discriminatory, business-necessitated employment decisions in the face of an increased risk of costly litigation.
The Maine Supreme Judicial Court is expected to hear the case this fall and issue a decision late in the year. In the meantime, Maine's business and legal communities anxiously await the court's resolution of this important issue.
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