Text of ME LD 1701 (2019)

Printed on recycled paper 129th MAINE LEGISLATURE FIRST REGULAR SESSION-2019 Legislative Document No. 1701 H.P. 1216 House of Representatives, May 8, 2019 An Act To Clarify Various Provisions of the Maine Human Rights Act Submitted by the Maine Human Rights Commission pursuant to Joint Rule 204. Reference to the Committee on Judiciary suggested and ordered printed. ROBERT B. HUNT Clerk Presented by Representative BAILEY of Saco. Page 1 - 129LR2281(01)-1 1 Be it enacted by the People of the State of Maine as follows: 2 Sec. 1. 5 MRSA §4553, as amended by PL 2015, c. 457, §§1 and 2, is further 3 amended to read: 4 §4553. Definitions 5 As used in this Act, unless the context or subchapter otherwise indicates, the 6 following words have the following meanings. 7 1. Commission. "Commission" means the Maine Human Rights Commission 8 established by this Act. 9 1-A. Commercial facilities. "Commercial facilities" means facilities that are 10 intended for nonresidential use. 11 1-B. Covered entity. For purposes of subchapter III 3, "covered entity" means an 12 employer, employment agency, labor organization or joint labor-management committee. 13 For purposes of subchapter V 5, "covered entity" means any applicable private entity or 14 public entity. 15 1-C. Direct threat. For purposes of subchapter III 3, "direct threat" means a 16 significant risk to the health or safety of others that can not be eliminated by reasonable 17 accommodation. 18 1-D. Aggrieved person. "Aggrieved person" includes any person who claims to 19 have been subject to unlawful discrimination on the basis of protected class status, 20 including discrimination based on the person's known relationship or association with a 21 member of a protected class and discrimination on the basis of perceived protected class 22 status. "Aggrieved person" also includes any person who claims to have been injured by 23 unlawful housing discrimination. 24 1-E. Complainant. "Complainant" means a person who files a complaint under 25 section 4611 or a civil action under section 4621. 26 1-F. Conciliation. "Conciliation" means the attempted resolution after a finding by 27 the commission that unlawful discrimination has occurred of issues raised by a complaint 28 filed under section 4611 or by an investigation of such a complaint through informal 29 negotiations involving the complainant, the respondent and the commission. 30 1-G. Conciliation agreement. "Conciliation agreement" means a written agreement 31 setting forth the resolution of the issues in conciliation. 32 1-H. Assistance animal. "Assistance animal" means, for the purposes of subchapter 33 4: 34 A. An animal that has been determined necessary for an individual with a physical or 35 mental disability to mitigate the effects of a physical or mental disability by a 36 physician, psychologist, physician assistant, nurse practitioner or, licensed social Page 2 - 129LR2281(01)-1 1 worker, licensed professional counselor or other licensed health professional with 2 knowledge of the disability-related need for an assistance animal; or 3 B. An animal individually trained to do work or perform tasks for the benefit of an 4 individual with a physical or mental disability, including, but not limited to, guiding 5 individuals with impaired vision, alerting individuals who are deaf or hard of hearing 6 to intruders or sounds, providing reasonable protection or rescue work, pulling a 7 wheelchair or retrieving dropped items. 8 2. Discriminate. "Discriminate" includes, without limitation, segregate or, separate 9 or subject to harassment. 10 For purposes of subchapter III 3, "discriminate" also includes, as it relates to individuals 11 with physical or mental disability: 12 A. Limiting, segregating or classifying a job applicant or employee in a way that 13 adversely affects the opportunities or status of the applicant or employee because of 14 the disability protected class of the applicant or employee; 15 B. Participating in a contractual or other arrangement or relationship that has the 16 effect of subjecting a covered entity's qualified applicant or employee with a 17 disability to the discrimination prohibited by this Act. A relationship includes a 18 relationship with an employment or referral agency, labor union, an organization 19 providing fringe benefits to an employee of the covered entity or an organization 20 providing training and apprenticeship programs; 21 C. Utilizing standards, criteria or methods of administration: 22 (1) That have the effect of discrimination on the basis of disability protected 23 class status; or 24 (2) That perpetuate the discrimination of on the basis of protected class status by 25 others who are subject to common administrative control; 26 D. Excluding or otherwise denying equal jobs or benefits to a qualified individual 27 because of the known disability protected class status of an individual with whom the 28 qualified individual is known to have a relationship or association; 29 E. Not making reasonable accommodations to the known physical or mental 30 limitations of an otherwise qualified individual with a disability who is an applicant 31 or employee, unless the covered entity can demonstrate that the accommodation 32 would impose an undue hardship on the operation of the business of the covered 33 entity; 34 F. Denying employment opportunities to a job applicant or employee who is an 35 otherwise qualified individual with a disability, if the denial is based on the need of 36 the covered entity to make reasonable accommodation to the physical or mental 37 impairments of the employee or applicant; 38 G. Using qualification standards, employment tests or other selection criteria that 39 screen out or tend to screen out an individual with a disability or a class of 40 individuals with disabilities based on their protected class status unless the standard, 41 test or other selection criteria, as used by the covered entity, is shown to be job- 42 related for the position in question and is consistent with business necessity; and Page 3 - 129LR2281(01)-1 1 H. Failing to select and administer tests concerning employment in the most 2 effective manner to ensure that, when the test is administered to a job applicant or 3 employee who has a disability that impairs sensory, manual or speaking skills, the 4 test results accurately reflect the skills, aptitude or any other factor of the applicant or 5 employee that the test purports to measure, rather than reflecting the impaired 6 sensory, manual or speaking skills of the employee or applicant, except when the 7 skills are the factors that the test purports to measure. 8 2-A. Educational institution. "Educational institution" means any public school or 9 educational program, any public post-secondary institution, any private school or 10 educational program approved for tuition purposes if both male and female students are 11 admitted and the governing body of each such school or program. For purposes related to 12 disability-related discrimination, "educational institution" also means any private school 13 or educational program approved for tuition purposes. 14 3. Employee. "Employee" means an individual employed by an employer. 15 "Employee" does not include any individual employed by that individual's parents, 16 spouse or child, except for purposes of disability-related discrimination, in which case the 17 individual is considered to be an employee. 18 4. Employer. "Employer" includes any person in this State employing any number 19 of employees, whatever the place of employment of the employees, and any person 20 outside this State employing any number of employees whose usual place of employment 21 is in this State; any person acting in the interest of any employer, directly or indirectly, 22 such that the person's actions are considered the actions of the employer for purposes of 23 liability; and labor organizations, whether or not organized on a religious, fraternal or 24 sectarian basis, with respect to their employment of employees. "Employer" does not 25 include a religious or fraternal corporation or association, not organized for private profit 26 and in fact not conducted for private profit, with respect to employment of its members of 27 the same religion, sect or fraternity, except for purposes of disability-related 28 discrimination, in which case the corporation or association is considered to be an 29 employer. 30 5. Employment agency. "Employment agency" includes any person undertaking 31 with or without compensation to procure opportunities to work, or to procure, recruit, 32 refer or place employees; it includes, without limitation, placement services, training 33 schools and centers, and labor organizations, to the extent that they act as employee 34 referral sources; and it includes any agent of such person acting in the interest of the 35 person such that the agent's actions are considered the actions of the employment agency 36 for purposes of liability. 37 5-A. Familial status. "Familial status" means that a family unit may contain one or 38 more individuals who have not attained the age of 18 years of age and are living with: 39 A. A parent or another person having legal custody of the individual or individuals; 40 or 41 B. The designee of the parent or other person having custody, with the written 42 permission of the parent or other person. Page 4 - 129LR2281(01)-1 1 The protections afforded against discrimination on the basis of familial status shall apply 2 to any person who is pregnant or who is in the process of securing legal custody of any 3 individual who has not attained the age of 18 years of age. 4 5-B. Family. "Family" includes, but is not limited to, a single individual. 5 5-C. Gender identity. "Gender identity" means the gender-related identity, 6 appearance, mannerisms or other gender-related characteristics of an individual, 7 regardless of the individual's assigned sex at birth. 8 5-D. Harassment. "Harassment" includes verbal or physical conduct related to a 9 protected class or directed at an individual because of protected class status when: 10 A. Submission to such conduct is made either explicitly or implicitly a term or 11 condition of the individual's access to employment, housing, public accommodation, 12 educational opportunity or extension of credit; 13 B. Submission to or rejection of such conduct by an individual is used as the basis 14 for the individual's access to employment, housing, public accommodation, 15 educational opportunity or extension of credit; 16 C. Such conduct has the purpose or effect of unreasonably interfering with the 17 individual's access to employment, housing, public accommodation, educational 18 opportunity or extension of credit or creating an intimidating, hostile or offensive 19 environment in those settings; or 20 D. Such conduct constitutes an assault, as defined by Title 17-A, section 207. 21 6. Housing accommodation. "Housing accommodation" includes any building or 22 structure or portion thereof, or any parcel of land, developed or undeveloped, that is 23 occupied, or is intended to be occupied or to be developed for occupancy, for residential 24 purposes. 25 6-A. Normal retirement age. "Normal retirement age" means the specified age, the 26 years of service requirement or any age and years of service combination at which a 27 member may become eligible for retirement benefits. This subsection may not be 28 construed to require the mandatory retirement of a member or to deny employment to any 29 person based solely on that person's normal retirement age. 30 7. Person. "Person" includes one or more individuals, partnerships, associations, 31 organizations, corporations, municipal corporations, legal representatives, trustees, 32 trustees in bankruptcy, receivers and other legal representatives, labor organizations, 33 mutual companies, joint-stock companies and unincorporated organizations and includes 34 the State and all agencies thereof. 35 7-A. Physical or mental disability. "Physical or mental disability" has the meaning 36 set forth in section 4553-A. 37 8. Place of public accommodation. "Place of public accommodation" means a 38 facility, operated by a public entity or private entity, whose operations fall within at least 39 one of the following categories: Page 5 - 129LR2281(01)-1 1 A. An inn, hotel, motel or other place of lodging, whether conducted for the 2 entertainment or accommodation of transient guests or those seeking health, 3 recreation or rest; 4 B. A restaurant, eating house, bar, tavern, buffet, saloon, soda fountain, ice cream 5 parlor or other establishment serving or selling food or drink; 6 C. A motion picture house, theater, concert hall, stadium, roof garden, airdrome or 7 other place of exhibition or entertainment; 8 D. An auditorium, convention center, lecture hall or other place of public gathering; 9 E. A bakery, grocery store, clothing store, hardware store, shopping center, garage, 10 gasoline station or other sales or rental establishment; 11 F. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe 12 repair service, funeral parlor, gas station, office of an accountant or lawyer, 13 pharmacy, insurance office, professional office of a health care provider, hospital, 14 dispensary, clinic, bathhouse or other service establishment; 15 G. All public conveyances operated on land or water or in the air as well as a 16 terminal, depot or other station used for specified public transportation; 17 H. A museum, library, gallery or other place of public display or collection; 18 I. A park, zoo, amusement park, race course, skating rink, fair, bowling alley, golf 19 course, golf club, country club, gymnasium, health spa, shooting gallery, billiard or 20 pool parlor, swimming pool, seashore accommodation or boardwalk or other place of 21 recreation, exercise or health; 22 J. A nursery, elementary, secondary, undergraduate or postgraduate school or other 23 place of education; 24 K. A day-care day care center, senior citizen center, homeless shelter, food bank, 25 adoption agency or other social service center establishment; 26 L. Public elevators of buildings occupied by 2 or more tenants or by the owner and 27 one or more tenants; 28 M. A municipal building, courthouse, town hall or other establishment of the State or 29 a local government; and 30 N. Any establishment that in fact caters to, or offers its goods, facilities or services 31 to, or solicits or accepts patronage from, the general public. 32 When a place of public accommodation is located in a private residence, the portion of 33 the residence used exclusively as a residence is not covered by this subchapter, but that 34 portion used exclusively in the operation of the place of public accommodation or that 35 portion used both for the place of public accommodation and for the residential purposes 36 is covered by this subchapter. The covered portion of the residence extends to those 37 elements used to enter the place of public accommodation, and those exterior and interior 38 portions of the residence available to or used by customers or clients, including rest 39 rooms. 40 8-A. Private entity. "Private entity" means any entity other than a public entity. Page 6 - 129LR2281(01)-1 1 8-B. Public accommodation. "Public accommodation" means a public entity or 2 private entity that owns, leases, leases to or operates a place of public accommodation. 3 8-C. Public entity. "Public entity" means: 4 A. The State or any local government; 5 B. Any department, agency, special purpose district or other instrumentality of the 6 State, 2 or more states or a local government; and 7 C. A state, local or private commuter authority as defined in the federal Rail 8 Passenger Service Act, Section 103 (8). 9 8-D. Qualified individual with a disability. "Qualified individual with a disability" 10 applies to only: 11 A. Subchapter III 3 (employment); and 12 B. Subchapter V 5 (public accommodations) with regard to public entities only. 13 For purposes of subchapter III 3, "qualified individual with a disability" means an 14 individual with a physical or mental disability who, with or without reasonable 15 accommodation, can perform the essential functions of the employment position that the 16 individual holds or desires. 17 For purposes of subchapter V 5, "qualified individual with a disability" means an 18 individual with a disability who, with or without reasonable modification to rules, 19 policies or practices, the removal of architectural, communication or transportation 20 barriers or the provision of auxiliary aids and services, meets the essential eligibility 21 requirements for the receipt of services or the participation in programs or activities 22 provided by a public entity. 23 8-E. Protected class. "Protected class" means a class of individuals protected from 24 unlawful discrimination under this Act. 25 9. Real estate broker and sales agent. "Real estate broker" and "real estate 26 salesman sales agent" have the same definitions meanings as are given respectively in 27 Title 32, section 4001, subsections 2 and 3 sections 13198 and 13200 respectively; but 28 include all persons meeting those definitions, whether or not they are licensed or required 29 to be licensed. 30 9-A. Reasonable accommodation. For purposes of subchapter III 3, "reasonable 31 accommodation" may include, but is not limited to: 32 A. Making existing facilities used by employees readily accessible to and usable by 33 individuals with disabilities; and 34 B. Job restructuring, part-time or modified work schedules, reassignment to a vacant 35 position, leaves of absence, acquisition or modification of equipment or devices, 36 appropriate adjustment or modifications of examinations, training materials or 37 policies, the provision of qualified readers or interpreters and other similar 38 accommodations for individuals with disabilities. Page 7 - 129LR2281(01)-1 1 9-B. Undue hardship; undue burden. "Undue hardship" or "undue burden" mean 2 means an action requiring undue financial or administrative hardship. In determining 3 whether an action would result in an undue hardship, factors to be considered include: 4 A. The nature and cost of the accommodation needed under this Act; 5 B. The overall financial resources of the facility or facilities involved in the action, 6 the number of persons employed at the facility, the effect on expenses and resources 7 or the impact otherwise of the action upon the operation of the facility; 8 C. The overall financial resources of the covered entity, the overall size of the 9 business of a covered entity with respect to the number of its employees and the 10 number, type and location of its facilities; 11 D. The type of operation or operations of the covered entity, including the 12 composition, structure and functions of the work force of the entity, the geographic 13 separateness, administrative or fiscal relationship of the facility or facilities in 14 question to the covered entity; 15 E. All the resources available to meet the costs of the accommodation, including any 16 government funding or other grants available for making public accommodations and 17 places of employment accessible; 18 F. The extent to which current costs of accommodations have been minimized by 19 past efforts to provide equal access to persons with disabilities; 20 G. The extent to which resources spent on improving inaccessible equipment or 21 service could have been spent on making an accommodation so that service or 22 equipment is accessible to individuals with disabilities, as well as to individuals 23 without disabilities; 24 H. Documented good faith efforts to explore less restrictive or less expensive 25 alternatives; 26 I. The availability of equipment and technology for the accommodation; 27 J. Whether an accommodation would result in a fundamental change in the nature of 28 the public accommodation; 29 K. Efforts to minimize costs by spreading costs over time; and 30 L. The extent to which resources saved by failing to make an accommodation for 31 persons who have disabilities could have been saved by cutting costs in equipment or 32 services for the general public. 33 "Undue hardship" or "undue burden" is a higher standard than "readily achievable" and 34 requires a greater level of effort on the part of the public accommodation. 35 9-C. Sexual orientation. "Sexual orientation" means a person's actual or perceived 36 heterosexuality, bisexuality, homosexuality or gender identity or expression. 37 9-E. Service animal. "Service animal" means: 38 B. For the purposes of subchapter 5, a dog that is individually trained to do work or 39 perform tasks for the benefit of an individual with a disability, including a physical, Page 8 - 129LR2281(01)-1 1 sensory, psychiatric, intellectual or other mental disability. Other species of animals, 2 whether wild or domestic, trained or untrained, are not service animals for the 3 purposes of this definition. The work or tasks performed by a service animal must be 4 directly related to the individual's disability. Examples of such work or tasks include, 5 but are not limited to, assisting an individual who is totally or partially blind with 6 navigation and other tasks, alerting an individual who is deaf or hard of hearing to the 7 presence of people or sounds, providing nonviolent protection or rescue work, pulling 8 a wheelchair, assisting an individual during a seizure, alerting an individual to the 9 presence of allergens, retrieving items such as medicine or a telephone, providing 10 physical support and assistance with balance and stability to an individual with a 11 mobility disability and helping a person with a psychiatric or neurological disability 12 by preventing or interrupting impulsive or destructive behaviors. The crime deterrent 13 effects of an animal's presence and the provision of emotional support, well-being, 14 comfort or companionship do not constitute work or tasks for the purposes of this 15 definition. 16 9-F. Rent. "Rent" includes to lease, to sublease, to let or otherwise to grant for a 17 consideration the right to occupy premises not owned by the occupant. 18 9-G. Respondent. "Respondent" means a person accused of unlawful 19 discrimination in a complaint filed under section 4611 or a civil action filed under section 20 4621. 21 10. Unlawful discrimination. "Unlawful discrimination" includes: 22 A. Unlawful employment discrimination as defined and limited by subchapter III 3; 23 B. Unlawful housing discrimination as defined and limited by subchapter IV 4; 24 C. Unlawful public accommodations discrimination as defined by subchapter V 5; 25 D. Aiding, abetting, inciting, compelling or coercing another to do any of such types 26 of unlawful discrimination; obstructing or preventing any person from complying 27 with this Act or any order issued in this subsection; attempting to do any act of 28 unlawful discrimination; and punishing or penalizing, or attempting to punish or 29 penalize, any person for seeking to exercise any of the civil rights declared by this 30 Act or for complaining of a violation of this Act or for testifying in any proceeding 31 brought in this subsection; 32 E. In determining whether a person is acting as an agent or employee of another 33 person so as to make such other person responsible for that person's acts, the question 34 of whether the specific acts performed were actually authorized or subsequently 35 ratified is not controlling; 36 F. Unlawful educational discrimination as defined and limited by subchapter 5-B; 37 and 38 G. Discrimination in employment, housing, public accommodation, credit and 39 educational opportunity on the basis of sexual orientation or gender identity, except 40 that a bona fide nonprofit religious corporation, association or organization that does 41 not receive public funds is exempt from this provision with respect to: Page 9 - 129LR2281(01)-1 1 (1) Employment, as is more fully set forth in section 4553, subsection 4 and 2 section 4573-A; 3 (2) Housing; and 4 (3) Educational opportunity, as is more fully set forth in section 4602, subsection 5 4. 6 Any for-profit organization owned, controlled or operated by a religious association 7 or corporation and subject to the provisions of the Internal Revenue Code, 26 United 8 States Code, Section 511(a) is not covered by the exemptions set forth in this 9 paragraph.; and 10 H. Harassment. 11 Sec. 2. 5 MRSA §4555, as enacted by PL 1995, c. 393, §10, is repealed. 12 Sec. 3. 5 MRSA §4573-A, sub-§1, as enacted by PL 1995, c. 393, §21, is 13 amended to read: 14 1. General provisions. It is a defense to a charge of discrimination under this 15 subchapter that an alleged application of qualification standards, tests or selection criteria 16 that screen out or tend to screen out or otherwise deny a job or benefit to an individual 17 with a disability based on protected class status has been shown to be job-related and 18 consistent with business necessity, and such performance can not be accomplished by 19 reasonable accommodation, as required by this subchapter. 20 Sec. 4. 5 MRSA §4573-A, sub-§1-B, as enacted by PL 1995, c. 511, §1 and 21 affected by §3, is repealed. 22 Sec. 5. 5 MRSA §4592, sub-§7, ¶B, as amended by PL 2007, c. 664, §6, is 23 further amended to read: 24 B. That perpetuate the discrimination of others who are subject to common 25 administrative control; and 26 Sec. 6. 5 MRSA §4592, sub-§8, as amended by PL 2015, c. 457, §4, is further 27 amended to read: 28 8. Service animals. For any public accommodation or any person who is the owner, 29 lessor, lessee, proprietor, operator, manager, superintendent, agent or employee of any 30 place of public accommodation to refuse to permit the use of a service animal or 31 otherwise discriminate against an individual with a physical or mental disability who uses 32 a service animal at the public accommodation unless it is shown by defense that the 33 service animal poses a direct threat to the health or safety of others or the use of the 34 service animal would result in substantial physical damage to the property of others or 35 would substantially interfere with the reasonable enjoyment of the public accommodation 36 by others. The use of a service animal may not be conditioned on the payment of a fee or 37 security deposit, although the individual with a physical or mental disability is liable for 38 any damage done to the premises or facilities by such a service animal. This subsection Page 10 - 129LR2281(01)-1 1 does not apply to an assistance animal as defined in section 4553, subsection 1-H unless 2 the assistance animal also qualifies as a service animal.; and 3 Sec. 7. 5 MRSA §4592, sub-§9 is enacted to read: 4 9. Unlawful public accommodations. For any public accommodation to designate 5 a single-occupancy toilet facility as for use only by members of one sex. A single- 6 occupancy toilet facility may be identified by a sign, as long as the sign does not indicate 7 that the facility is for use by members of one specific sex. For the purposes of this 8 subsection, a "single-occupancy toilet facility" is a restroom for use by one user at a time 9 or for family or assisted use and that has an outer door that can be locked by the 10 occupant. 11 Sec. 8. 5 MRSA §4633, as enacted by PL 1993, c. 303, §3, is amended by 12 enacting a new first paragraph to read: 13 Notwithstanding any other provision of this Act to the contrary, a person may be held 14 liable for that person's actions taken in violation of this section, without regard to whether 15 such person would otherwise be a covered employer, housing provider, public 16 accommodation, educational institution or other covered entity under this Act, when the 17 individual engages in individual and independent unlawful conduct outside the scope of 18 the individual's actions on behalf of a covered entity. 19 SUMMARY 20 This bill makes changes to the Maine Human Rights Act in order to clarify its proper 21 application and interpretation. In particular, the bill describes the behaviors that may 22 constitute harassment in reference to unlawful discrimination; clarifies the Act's coverage 23 of claims based on association and based on the perception that an individual belongs to a 24 protected class; and provides a definition of "gender identity." The bill provides needed 25 clarification related to several Maine Human Rights Act provisions highlighted by recent 26 court decisions, including confirming that a leave of absence can be a reasonable 27 accommodation for a disability in employment, and that individual employees may be 28 liable for their discriminatory behavior in certain circumstances. The bill also makes 29 grammatical changes and corrects cross-references.

Page 1 - 129LR2281(05)-1 STATE OF MAINE _____ IN THE YEAR OF OUR LORD TWO THOUSAND NINETEEN _____ H.P. 1216 - L.D. 1701 An Act To Clarify Various Provisions of the Maine Human Rights Act Be it enacted by the People of the State of Maine as follows: Sec. 1. 5 MRSA §4553, as amended by PL 2015, c. 457, §§1 and 2, is further amended to read: §4553. Definitions As used in this Act, unless the context or subchapter otherwise indicates, the following words have the following meanings. 1. Commission. "Commission" means the Maine Human Rights Commission established by this Act. 1-A. Commercial facilities. "Commercial facilities" means facilities that are intended for nonresidential use. 1-B. Covered entity. For purposes of subchapter III 3, "covered entity" means an employer, employment agency, labor organization or joint labor-management committee. For purposes of subchapter V 5, "covered entity" means any applicable private entity or public entity. 1-C. Direct threat. For purposes of subchapter III 3, "direct threat" means a significant risk to the health or safety of others that can not be eliminated by reasonable accommodation. 1-D. Aggrieved person. "Aggrieved person" includes any person who claims to have been subject to unlawful discrimination on the basis of protected class status, including discrimination based on the person's known relationship or association with a member of a protected class and discrimination on the basis of perceived protected class status. "Aggrieved person" also includes any person who claims to have been injured by unlawful housing discrimination. APPROVED JUNE 23, 2019 BY GOVERNOR CHAPTER 464 PUBLIC LAW Page 2 - 129LR2281(05)-1 1-E. Complainant. "Complainant" means a person who files a complaint under section 4611 or a civil action under section 4621. 1-F. Conciliation. "Conciliation" means the attempted resolution after a finding by the commission that unlawful discrimination has occurred of issues raised by a complaint filed under section 4611 or by an investigation of such a complaint through informal negotiations involving the complainant, the respondent and the commission. 1-G. Conciliation agreement. "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation. 1-H. Assistance animal. "Assistance animal" means, for the purposes of subchapter 4: A. An animal that has been determined necessary for an individual with a physical or mental disability to mitigate the effects of a physical or mental disability by a physician, psychologist, physician assistant, nurse practitioner or, licensed social worker, licensed professional counselor or other licensed health professional with knowledge of the disability-related need for an assistance animal; or B. An animal individually trained to do work or perform tasks for the benefit of an individual with a physical or mental disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals who are deaf or hard of hearing to intruders or sounds, providing reasonable protection or rescue work, pulling a wheelchair or retrieving dropped items. 2. Discriminate. "Discriminate" includes, without limitation, segregate or, separate or subject to harassment. For purposes of subchapter III 3, "discriminate" also includes, as it relates to individuals with physical or mental disability: A. Limiting, segregating or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the disability protected class of the applicant or employee; B. Participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this Act. A relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity or an organization providing training and apprenticeship programs; C. Utilizing standards, criteria or methods of administration: (1) That have the effect of discrimination on the basis of disability protected class status; or (2) That perpetuate the discrimination of on the basis of protected class status by others who are subject to common administrative control; Page 3 - 129LR2281(05)-1 D. Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability protected class status of an individual with whom the qualified individual is known to have a relationship or association; E. Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity; F. Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if the denial is based on the need of the covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; G. Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities based on their protected class status unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job- related for the position in question and is consistent with business necessity; and H. Failing to select and administer tests concerning employment in the most effective manner to ensure that, when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or any other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the employee or applicant, except when the skills are the factors that the test purports to measure. 2-A. Educational institution. "Educational institution" means any public school or educational program, any public post-secondary institution, any private school or educational program approved for tuition purposes if both male and female students are admitted and the governing body of each such school or program. For purposes related to disability-related discrimination, "educational institution" also means any private school or educational program approved for tuition purposes. 3. Employee. "Employee" means an individual employed by an employer. "Employee" does not include any individual employed by that individual's parents, spouse or child, except for purposes of disability-related discrimination, in which case the individual is considered to be an employee. 4. Employer. "Employer" includes any person in this State employing any number of employees, whatever the place of employment of the employees, and any person outside this State employing any number of employees whose usual place of employment is in this State; any person acting in the interest of any employer, directly or indirectly, such that the person's actions are considered the actions of the employer for purposes of liability; and labor organizations, whether or not organized on a religious, fraternal or sectarian basis, with respect to their employment of employees. "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 Page 4 - 129LR2281(05)-1 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. Employment agency. "Employment agency" includes any person undertaking with or without compensation to procure opportunities to work, or to procure, recruit, refer or place employees; it includes, without limitation, placement services, training schools and centers, and labor organizations, to the extent that they act as employee referral sources; and it includes any agent of such person acting in the interest of the person such that the agent's actions are considered the actions of the employment agency for purposes of liability. 5-A. Familial status. "Familial status" means that a family unit may contain one or more individuals who have not attained the age of 18 years of age and are living with: A. A parent or another person having legal custody of the individual or individuals; or B. The designee of the parent or other person having custody, with the written permission of the parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or who is in the process of securing legal custody of any individual who has not attained the age of 18 years of age. 5-B. Family. "Family" includes, but is not limited to, a single individual. 5-C. Gender identity. "Gender identity" means the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual's assigned sex at birth. 6. Housing accommodation. "Housing accommodation" includes any building or structure or portion thereof, or any parcel of land, developed or undeveloped, that is occupied, or is intended to be occupied or to be developed for occupancy, for residential purposes. 6-A. Normal retirement age. "Normal retirement age" means the specified age, the years of service requirement or any age and years of service combination at which a member may become eligible for retirement benefits. This subsection may not be construed to require the mandatory retirement of a member or to deny employment to any person based solely on that person's normal retirement age. 7. Person. "Person" includes one or more individuals, partnerships, associations, organizations, corporations, municipal corporations, legal representatives, trustees, trustees in bankruptcy, receivers and other legal representatives, labor organizations, mutual companies, joint-stock companies and unincorporated organizations and includes the State and all agencies thereof. 7-A. Physical or mental disability. "Physical or mental disability" has the meaning set forth in section 4553-A. Page 5 - 129LR2281(05)-1 8. Place of public accommodation. "Place of public accommodation" means a facility, operated by a public entity or private entity, whose operations fall within at least one of the following categories: A. An inn, hotel, motel or other place of lodging, whether conducted for the entertainment or accommodation of transient guests or those seeking health, recreation or rest; B. A restaurant, eating house, bar, tavern, buffet, saloon, soda fountain, ice cream parlor or other establishment serving or selling food or drink; C. A motion picture house, theater, concert hall, stadium, roof garden, airdrome or other place of exhibition or entertainment; D. An auditorium, convention center, lecture hall or other place of public gathering; E. A bakery, grocery store, clothing store, hardware store, shopping center, garage, gasoline station or other sales or rental establishment; F. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, dispensary, clinic, bathhouse or other service establishment; G. All public conveyances operated on land or water or in the air as well as a terminal, depot or other station used for specified public transportation; H. A museum, library, gallery or other place of public display or collection; I. A park, zoo, amusement park, race course, skating rink, fair, bowling alley, golf course, golf club, country club, gymnasium, health spa, shooting gallery, billiard or pool parlor, swimming pool, seashore accommodation or boardwalk or other place of recreation, exercise or health; J. A nursery, elementary, secondary, undergraduate or postgraduate school or other place of education; K. A day-care day care center, senior citizen center, homeless shelter, food bank, adoption agency or other social service center establishment; L. Public elevators of buildings occupied by 2 or more tenants or by the owner and one or more tenants; M. A municipal building, courthouse, town hall or other establishment of the State or a local government; and N. Any establishment that in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public. When a place of public accommodation is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this subchapter, but that portion used exclusively in the operation of the place of public accommodation or that portion used both for the place of public accommodation and for the residential purposes is covered by this subchapter. The covered portion of the residence extends to those elements used to enter the place of public accommodation, and those exterior and interior Page 6 - 129LR2281(05)-1 portions of the residence available to or used by customers or clients, including rest rooms. 8-A. Private entity. "Private entity" means any entity other than a public entity. 8-B. Public accommodation. "Public accommodation" means a public entity or private entity that owns, leases, leases to or operates a place of public accommodation. 8-C. Public entity. "Public entity" means: A. The State or any local government; B. Any department, agency, special purpose district or other instrumentality of the State, 2 or more states or a local government; and C. A state, local or private commuter authority as defined in the federal Rail Passenger Service Act, Section 103 (8). 8-D. Qualified individual with a disability. "Qualified individual with a disability" applies to only: A. Subchapter III 3 (employment); and B. Subchapter V 5 (public accommodations) with regard to public entities only. For purposes of subchapter III 3, "qualified individual with a disability" means an individual with a physical or mental disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. For purposes of subchapter V 5, "qualified individual with a disability" means an individual with a disability who, with or without reasonable modification to rules, policies or practices, the removal of architectural, communication or transportation barriers or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 8-E. Protected class. "Protected class" means a class of individuals protected from unlawful discrimination under this Act. 9. Real estate broker and sales agent. "Real estate broker" and "real estate salesman sales agent" have the same definitions meanings as are given respectively in Title 32, section 4001, subsections 2 and 3 sections 13198 and 13200 respectively; but include all persons meeting those definitions, whether or not they are licensed or required to be licensed. 9-A. Reasonable accommodation. For purposes of subchapter III 3, "reasonable accommodation" may include, but is not limited to: A. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and B. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, leaves of absence, acquisition or modification of equipment or devices, Page 7 - 129LR2281(05)-1 appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities. 9-B. Undue hardship; undue burden. "Undue hardship" or "undue burden" mean means an action requiring undue financial or administrative hardship. In determining whether an action would result in an undue hardship, factors to be considered include: A. The nature and cost of the accommodation needed under this Act; B. The overall financial resources of the facility or facilities involved in the action, the number of persons employed at the facility, the effect on expenses and resources or the impact otherwise of the action upon the operation of the facility; C. The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of its employees and the number, type and location of its facilities; D. The type of operation or operations of the covered entity, including the composition, structure and functions of the work force of the entity, the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity; E. All the resources available to meet the costs of the accommodation, including any government funding or other grants available for making public accommodations and places of employment accessible; F. The extent to which current costs of accommodations have been minimized by past efforts to provide equal access to persons with disabilities; G. The extent to which resources spent on improving inaccessible equipment or service could have been spent on making an accommodation so that service or equipment is accessible to individuals with disabilities, as well as to individuals without disabilities; H. Documented good faith efforts to explore less restrictive or less expensive alternatives; I. The availability of equipment and technology for the accommodation; J. Whether an accommodation would result in a fundamental change in the nature of the public accommodation; K. Efforts to minimize costs by spreading costs over time; and L. The extent to which resources saved by failing to make an accommodation for persons who have disabilities could have been saved by cutting costs in equipment or services for the general public. "Undue hardship" or "undue burden" is a higher standard than "readily achievable" and requires a greater level of effort on the part of the public accommodation. 9-C. Sexual orientation. "Sexual orientation" means a person's actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression. Page 8 - 129LR2281(05)-1 9-E. Service animal. "Service animal" means: B. For the purposes of subchapter 5, a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of such work or tasks include, but are not limited to, assisting an individual who is totally or partially blind with navigation and other tasks, alerting an individual who is deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting an individual to the presence of allergens, retrieving items such as medicine or a telephone, providing physical support and assistance with balance and stability to an individual with a mobility disability and helping a person with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort or companionship do not constitute work or tasks for the purposes of this definition. 9-F. Rent. "Rent" includes to lease, to sublease, to let or otherwise to grant for a consideration the right to occupy premises not owned by the occupant. 9-G. Respondent. "Respondent" means a person accused of unlawful discrimination in a complaint filed under section 4611 or a civil action filed under section 4621. 10. Unlawful discrimination. "Unlawful discrimination" includes: A. Unlawful employment discrimination as defined and limited by subchapter III 3; B. Unlawful housing discrimination as defined and limited by subchapter IV 4; C. Unlawful public accommodations discrimination as defined by subchapter V 5; D. Aiding, abetting, inciting, compelling or coercing another to do any of such types of unlawful discrimination; obstructing or preventing any person from complying with this Act or any order issued in this subsection; attempting to do any act of unlawful discrimination; and punishing or penalizing, or attempting to punish or penalize, any person for seeking to exercise any of the civil rights declared by this Act or for complaining of a violation of this Act or for testifying in any proceeding brought in this subsection; E. In determining whether a person is acting as an agent or employee of another person so as to make such other person responsible for that person's acts, the question of whether the specific acts performed were actually authorized or subsequently ratified is not controlling; F. Unlawful educational discrimination as defined and limited by subchapter 5-B; and Page 9 - 129LR2281(05)-1 G. Discrimination in employment, housing, public accommodation, credit and educational opportunity on the basis of sexual orientation or gender identity, except that a religious corporation, association or organization that does not receive public funds is exempt from this provision with respect to: (1) Employment, as is more fully set forth in section 4553, subsection 4 and section 4573-A; (2) Housing; and (3) Educational opportunity, as is more fully set forth in section 4602, subsection 4. Any for-profit organization owned, controlled or operated by a religious association or corporation and subject to the provisions of the Internal Revenue Code, 26 United States Code, Section 511(a) is not covered by the exemptions set forth in this paragraph. Sec. 2. 5 MRSA §4555, as enacted by PL 1995, c. 393, §10, is repealed. Sec. 3. 5 MRSA §4573-A, sub-§1, as enacted by PL 1995, c. 393, §21, is amended to read: 1. General provisions. It is a defense to a charge of discrimination under this subchapter that an alleged application of qualification standards, tests or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability based on protected class status has been shown to be job-related and consistent with business necessity, and such performance can not be accomplished by reasonable accommodation, as required by this subchapter. Sec. 4. 5 MRSA §4573-A, sub-§1-B, as enacted by PL 1995, c. 511, §1 and affected by §3, is repealed. Sec. 5. 5 MRSA §4592, sub-§7, ¶B, as amended by PL 2007, c. 664, §6, is further amended to read: B. That perpetuate the discrimination of others who are subject to common administrative control; and Sec. 6. 5 MRSA §4592, sub-§8, as amended by PL 2015, c. 457, §4, is further amended to read: 8. Service animals. For any public accommodation or any person who is the owner, lessor, lessee, proprietor, operator, manager, superintendent, agent or employee of any place of public accommodation to refuse to permit the use of a service animal or otherwise discriminate against an individual with a physical or mental disability who uses a service animal at the public accommodation unless it is shown by defense that the service animal poses a direct threat to the health or safety of others or the use of the service animal would result in substantial physical damage to the property of others or would substantially interfere with the reasonable enjoyment of the public accommodation by others. The use of a service animal may not be conditioned on the payment of a fee or Page 10 - 129LR2281(05)-1 security deposit, although the individual with a physical or mental disability is liable for any damage done to the premises or facilities by such a service animal. This subsection does not apply to an assistance animal as defined in section 4553, subsection 1-H unless the assistance animal also qualifies as a service animal.; and Sec. 7. 5 MRSA §4592, sub-§9 is enacted to read: 9. Unlawful public accommodations. For any public accommodation to designate a single-occupancy toilet facility as for use only by members of one sex. A single- occupancy toilet facility may be identified by a sign, as long as the sign does not indicate that the facility is for use by members of one specific sex. For the purposes of this subsection, a "single-occupancy toilet facility" is a restroom for use by one user at a time or for family or assisted use and that has an outer door that can be locked by the occupant.