Does Maine have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in employment?

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 LGBTQ+ 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 In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998.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” (5 Me. Rev. Stat. sec. 4553 (9-C)).

Does it also protect people perceived of as LGBTQ+ in employment?

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

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 (5 Me. Rev. Stat. sec. 4553 (4) (definition of employer)). 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 Me. Rev. Stat. sec. 4572 (1)(A)). 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 (5 Me. Rev. Stat. sec. 4572 (1)(B) & (C)).

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 (5 Me. Rev. Stat. sec. 4572 (1)(D)).

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 (5 Me. Rev. Stat. sec. 4553 (4) (definition of “employer”)).

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 (5 Me. Rev. Stat. sec. 4573-A (2)). 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 (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)).

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.

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” (94-348 Rules of Maine Human Rights Com’n, 3.06 I (1). Available here).

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 Services (9523 U.S. 75 (1998), man can sue for sexual harassment by other men under federal sexual harassment laws)) to Melnychenko v. 84 Lumber Co. (424 Mass. 285, 676 N.E.2d 45 (1997), (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 (see generally 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12. Available here). 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 (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (1) (a) – (c). Available here).

Employers or labor organizations are responsible for their actions and for those of their employees with respect to sexual orientation harassment (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (2). Available here).