Anti-Discrimination Law in Maine

Maine’s anti-discrimination law prohibits discrimination based on sexual orientation, HIV status and gender identity or expression.

Questions & Answers (Accurate as of February 25, 2014)

Does Maine have an anti-discrimination law protecting gay, lesbian, bisexual and transgender individuals from discrimination?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005.

This marks the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to ratify a second anti-discrimination law that had been approved by the legislature.

The law provides protection against discrimination based on sexual orientation which is defined as “... a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.”1

Does it also protect people perceived of as gay, lesbian, bisexual and transgender?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

What kinds of discrimination does the anti-discrimination law address?

The Maine law prohibits discrimination in:

  • EMPLOYMENT
  • PUBLIC ACCOMMODATIONS
  • HOUSING
  • CREDIT and
  • EDUCATION2

Are there other non-discrimination protections available in Maine?

Yes. Several cities and towns have enacted non-discrimination ordinances, including Portland, Falmouth, South Portland, Long Island, Orono, Sorrento, Westbrook and Bar Harbor. In Clarke v. Olsten Certified Healthcare Corp., the Maine Law Court assumed without so stating that the Portland ordinance is enforceable.3

Employment

To whom does the non-discrimination law apply and what does it forbid?

The non-discrimination law applies to governmental employers (local and state) and private employers with any number of employees.4 It forbids employers from refusing to hire, or discharging, or discriminating against the employee with respect to any employment matter, including hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment. Nor may an employer use any employment agency that discriminates.5 Harassment based on sexual orientation is included within “terms and conditions” of employment.

Employment agencies may not refuse to: classify properly; refer their customers for employment; or otherwise discriminate because of sexual orientation. Labor organizations (e.g. unions) may not deny apprenticeship, membership or any membership rights or otherwise penalize or discriminate against their members because of sexual orientation.6

The law also forbids any employer, employment agency, or labor organization, prior to employment or membership, from eliciting or recording information about a person’s sexual orientation, printing any advertisement indicating any preference or limitation based on sexual orientation, or having a system of denying or limiting employment or membership opportunities based on sexual orientation.7

Does the law apply to every employer?

No, there is a religious exemption that 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. 8

This appears to mean that certain non-profit religious entities (not individuals) are exempt from the law, and a religious organization may require all applicants and employees to conform to the religious tenets of that organization.9  The full scope of this exemption may be sorted out in specific court cases.

Does the non-discrimination law have any impact on my employer’s obligation to provide domestic partner benefits to my partner of the same-sex?

Possibly yes. The non-discrimination law can be a powerful tool to equalizing treatment in compensation, and therefore, valuable “fringe benefits.”  As discussed below in the family section of this booklet, the state and several municipalities have already equalized some benefits like health insurance.10

Private employers in Maine are neither required to offer health insurance to their employees nor to offer spousal or family coverage. However, some employers who provide such coverage may be obligated to provide insurance to same-sex partners to comply with the Maine insurance laws and/or anti-discrimination law. This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.

Harassment

Does Maine law forbid sexual harassment?

Yes, sexual harassment is expressly prohibited by state law.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature constitute sexual harassment when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”11

Although the Maine Law Court has not specifically ruled on the question, it should be as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation, which is discussed below. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws. Compare Oncale v. Sundowner Offshore Services12  (man can sue for sexual harassment by other men under federal sexual harassment laws) to Melnychenko v. 84 Lumber Co. 13 (same-sex sexual harassment forbidden under Massachusetts state law).

Are there any protections from sexual orientation harassment?

Yes. In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledged the existence of sexual orientation harassment.14  Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment when:

  1. submission to this conduct is a condition of employment or a term of membership in a union;
  2. submission to or rejection of this conduct is used as a basis for a decision made by unions or employers that effect the individual;
  3. such conduct interferes or attempts to interfere with the individuals work performance or creates an intimidating, hostile, or offensive working or union environment. 15

Employers or labor organizations are responsible for their actions and for those of their employees with respect to sexual orientation harassment.16

Public Accommodations

What is a place of public accommodation?

A place of public accommodation means a facility operated by a private or public entity whose operations fall into categories such as lodging, restaurants, entertainment, public gathering, retail stores, service establishments, transportation, museums, libraries, recreation facilities, exercise or health facilities, schools and educational institutions, social service establishments, or government buildings. Generally, any establishment that caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from the general public is a place of public accommodation.17

What does the law say about discrimination in places of public accommodation?

The law makes it illegal for places of public accommodation to discriminate on the basis of sexual orientation or “… in any manner withhold from or deny the full and equal enjoyment … of the accommodations, advantages, facilities, goods, services or privileges of public accommodation.”  The law also makes it illegal to advertise that any place of public accommodation is restricted to people of a particular sexual orientation.18

Housing

What is prohibited by the housing anti-discrimination law in Maine?

The fair housing laws apply to any person with the right to sell, rent, lease or manage residential housing. It covers any transaction related to housing—including advertising, inquiring, showing, selling, renting, leasing, pricing, evicting, misrepresenting availability or asking price, or failing to communicate an offer.19

The law declares that every individual has a basic civil right to secure decent housing in accordance with the individual’s right to pay and without discrimination because of sexual orientation.20

Those who finance housing — whether financing for the acquisition, construction, rehabilitation, repair or maintenance of residential housing — are barred from discriminating.

Are any landlords exempt from the housing anti-discrimination law?

The following landlords are exempt from the law:

  • an owner-occupied 2-family dwelling;
  • an owner-occupied single family dwelling that rents not more than 4 rooms; and
  • a dwelling owned, controlled, or operated for other than a commercial purpose by a religious corporation that rents to its membership.21

 

Credit

How does the Maine anti-discrimination law protect people with regard to credit?

It is unlawful credit discrimination for any creditor to refuse the extension of credit to any person solely on the basis of sexual orientation.22 The law requires that the Superintendent of Financial Institutions and the Superintendent of Consumer Credit Protection cooperate with the Maine Human Rights Commission in enforcing the credit anti-discrimination law.23

Education

How does the Maine anti-discrimination law apply to education?

Maine law applies to both public and private schools and makes the following discrimination on the basis of sexual orientation unlawful:

  • to exclude a person from, deny a person the benefits of, or subject a person to discrimination in any academic, extracurricular, research, occupational training or other program or activity;
  • to deny a person equal opportunity in athletic programs;
  • to deny admission to the institution or program or fail to provide equal access to any information about an institution or program;
  • to deny financial assistance availability and opportunity.24

Are any educational institutions exempt from the law?

Yes. Any educational facility owned, controlled or operated by “a bona fide religious corporation, association or society” is exempt.25

Transgender/Gender Identity

What protections exist for transgender people under the discrimination laws?

The definition of sexual orientation in the law includes a person’s “actual or perceived … gender identity or expression.”  This is explicit protection for transgender persons in Maine.26

The Maine Human Rights Commission has also set out its view that employers must “reasonably accommodate” employees with respect to gender identity and gender expression issues in the workplace. The only legitimate reason for failure to do so is if doing so “would impose an undue hardship on the conduct of the business.”27

In some situations a transgender person may also have a claim of sex or disability discrimination if he or she is adversely treated at work, in housing, in a place of public accommodation, in a credit transaction or at an educational institution. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim as well. See Price Waterhouse v. Hopkins28 and Rosa v. Park West Bank29.

In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules to add “sexual orientation” to the protected classifications under the Maine Human Rights Act. As part of these amendments,” the MHRC defined both “gender identity” and “gender expression” as protected under the definition of “sexual orientation.”

The Commission defined “gender identity” as an “individual’s gender-related identity, whether or not the identity is different from that traditionally associated with that individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.”30

It has also defined “gender expression” as “the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle.”31

For more information, see GLAD’s publication, Transgender Legal Issues.

Pursuing a Complaint

How do I file a complaint of discrimination?  What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an overview of this process refer to the MHRC regulations, available at http://www.maine.gov/mhrc/laws/index.html.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred.32

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact-finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

  • there are no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court;33
  • there are reasonable grounds, it will try to resolve the matter through settlement.34

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint.35 The person may then file an action in the Superior Court.36  In some situations, the Commission may file an action in court on your behalf.37

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. Please call the GLAD Legal InfoLine for help or for an attorney referral.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 6 months of the discriminatory act or acts.38 There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of.”39

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue.40

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available. 41  If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices.42

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

  1. The present non-discrimination laws for employment forbid taking action against someone because of race, color, sex, physical or mental disability, religion, ancestry, national origin, age, or because a person previously filed a worker’s compensation claim, as well as sexual orientation.43
  2. In public accommodations, it is illegal to discriminate on the basis of race, color, sex, physical or mental disability, religion, ancestry or national origin, as well as sexual orientation.44
  3. In housing, the protected characteristics for public accommodations apply plus familial status.45
  4. In credit, in addition to sexual orientation, the protected characteristics are age, race, color, sex, ancestry, religion, national origin and marital status.
  5. In education, the protected characteristics in addition to sexual orientation are sex, physical or mental disability, national origin or race.

Can I also file a complaint with a federal agency?

Yes, in many cases.  Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC).  But if you initially institute your complaint with MHRC and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MHRC has terminated the case.46  (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law.  This is true because there may be overlapping provisions of state and federal law.   For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.” 

Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with MHRC first but keep in mind the possibility of pursuing a federal claim as well.  If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that MHRC cross-file your complaint with the EEOC.

LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to MHRC.  For more information go to:    http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination. ;

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

  1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a grievance. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against it for its failure to work with you, or for failure of duty of fair representation.
  2. State or Federal Court: After filing with the MHRC or EEOC, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies. For example:

  • If a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter can be pursued in court.
  • If a person has a claim for a violation of constitutional rights, such as a teacher or other governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who participate in MHRC proceedings or otherwise oppose unlawful conduct, whether as a complainant or as a witness. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.47

What can I do to prepare myself before filing a complaint of discrimination?

In evaluating your potential claims, you have the right to request a complete copy of your personnel file at any time48. Personnel files are the official record of your employment and are an invaluable source of information.49

Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Try to obtain and bring copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

1 5 Me. Rev. Stat. sec. 4553 (9-C).
2 5 Me. Rev. Stat. sec. 4552 et seq.
3 714 A.2d 823 (Me. 1998).
4 5 Me. Rev. Stat. sec. 4553 (4) (definition of employer).
5 5 Me. Rev. Stat. sec. 4572 (1)(A).
6 5 Me. Rev. Stat. sec. 4572 (1)(B) & (C).
7 5 Me. Rev. Stat. sec. 4572 (1)(D).
8 5 Me. Rev. Stat. sec. 4553 (4) (definition of “employer”).
9 5 Me. Rev. Stat. sec. 4573-A (2).
10 This result also conforms with the better view of the law, i.e., that it is discrimination based on sexual orientation to condition benefits on a status (marriage) that only gay people cannot attain. See Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781 (Alaska 2005); Bedford v. N.H. Cmty. Technical Coll. Sys., Superior Court Order, 04-E-230 (May 3, 2006).
11 94-348 Rules of Maine Human Rights Com’n, 3.06 I (1). Available at: http://www.maine.gov/mhrc/laws/index.html. ;  
12 523 U.S. 75 (1998).
13 424 Mass. 285, 676 N.E.2d 45 (1997).
14 See generally 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12. Available at: http://www.maine.gov/mhrc/laws/index.html.
15 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (1) (a) - (c). Available at: http://www.maine.gov/mhrc/laws/index.html.
16 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (2). Available at: http://www.maine.gov/mhrc/laws/index.html.
17 5 Me. Rev. Stat. sec. 4553 (8) (definition of “public accommodation”).
18 5 Me. Rev. Stat. sec. 4592 (1).
19 5 Me. Rev. Stat. sec. 4582. See also “Panel backs 2 men in housing complaint,” Bangor Daily News, Sept. 18, 2007 (discusses first case where the Maine Human Rights Commission “found reasonable grounds to a housing discrimination claim based on sexual orientation.”)
20 5 Me. Rev. Stat. sec. 4581
21 5 Me. Rev. Stat. sec. 4553 (6).
22 5 Me. Rev. Stat. sec. 4596.
23 5 Me. Rev. Stat. sec. 4598.
24 5 Me. Rev. Stat. sec. 4602.
25 5 Me. Rev. Stat. sec. 4602.
26 5 Me. Rev. Stat. sec. 4553 (9-C).
27 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (F) (1). Available at: http://www.maine.gov/mhrc/index.html.
28 490 U.S. 228, 251 (1989)
29 214 F.3d 213 (1st Cir. 2000).
30 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (2). Available at: http://www.maine.gov/mhrc/laws/index.html.
31 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (3). Available at: http://www.maine.gov/mhrc/laws/index.html.
32 5 Me. Rev. Stat. sec. 4611.
33 See generally 5 Me. Rev. Stat. sec. 4612.
34 5 Me. Rev. Stat. sec. 4612.
35 5 Me. Rev. Stat. sec. 4612 (6).
36 5 Me. Rev. Stat. sec. 4621.
37 See generally 5 Me. Rev. Stat. sec. 4612.
38 5 Me. Rev. Stat. sec. 4611.
39 5 Me. Rev. Stat. sec. 4613(2)(C).
40 94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html. ;
41 5 Me. Rev. Stat. secs. 4613, 4614.
42 5 Me. Rev. Stat. sec. 4622.
43 5 Me. Rev. Stat. sec. 4572.
44 5 Me. Rev. Stat. sec. 4553 (8) (definition), 4592 (prohibition).
45 5 Me. Rev. Stat. sec. 4582.
46 United States Code 42 sec. 2000e-5(e)(1).
47 5 Me. Rev. Stat. sec. 4572 (1)(E).  See also Provencher v. CVS Pharmacy, 76 Fair Empl.Prac.Cas. (BNA) 1569 (1st Cir.(N.H.) 1998) (upholding federal retaliation claim of gay man).
48 5 Me. Rev. Stat. sec. 7071 (Employee right to request personnel file).
49 5 Me. Rev. Stat. sec. 7070 (Definition of personnel record).