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 In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998.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

• EMPLOYMENT
• PUBLIC ACCOMMODATIONS
,
• HOUSING
• CREDIT and

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• EDUCATION²

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

“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.

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. 

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

a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

c) 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). 

a) submission to this conduct is a condition of employment or a term of membership in a union;

b) submission to or rejection of this conduct is used as a basis for a decision made by unions or employers that effect the individual;

c) such conduct interferes or attempts to interfere with the individuals work performance or creates an intimidating, hostile, or offensive working or union environment. ¹⁵

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

• 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 membership²¹
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• 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

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 Bank. ²⁹

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, at http://www.glad.org/rights/transgender_Legal_Issues.pdf.

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.

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

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; ⁴³ (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; ⁴⁴and (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).⁴⁵

1. a) 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. 
2. b) 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
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3. c) In housing, the protected characteristics for public accommodations apply plus familial status. 
4. d) In credit, in addition to sexual orientation, the protected characteristics are age, race, color, sex, ancestry, religion, national origin and marital status.
5. e) In education, the protected characteristics in addition to sexual orientation are sex, physical or mental disability, national origin or race
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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. Federal Agencies: Sometimes an individual may state a claim for a violation of federal law in addition to state law.  For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation.  Thus, a gay person who is fired from a job because of his or her sexual orientation can file with the MHRC only.  In other instances, an employee can file with both the MHRC and the federal Equal Employment Opportunity Commission (for cases when physical disability is involved). For example, a gay person with HIV who is fired from a job can file with the Commission as well as the federal Equal Employment Opportunity Commission (EEOC).

   Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with MHRC, then the time limit is extended to the earlier of 300 days or 30 days after MHRC has terminated the case.  For more information, see the EEOC website available at http://www.eeoc.gov/



3. State or Federal Court: After filing with the MHRC or EEOC (if you file with one on grounds protected by both state and federal law, your complaint is automatically cross-filed with the other), as discussed above, 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.

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.