MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	41

Docket: Fed-16-31

Argued: October	25,	2016

Decided: March	7,	2017

Corrected:	 March	23,	2017

Panel: SAUFLEY,	C.J.,	and MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

LORRAINE	SCAMMAN et	al.

v.

SHAW’S	SUPERMARKETS,	INC.

HUMPHREY,	J.

[¶1]		Pursuant	to	4	M.R.S.	§	57	(2016),	 the	United	States	District	Court	

for	the	District	of	Maine	has	certified	to	us	the	following	question	of	state	law:

Is	a	claim	for	disparate	impact	age	discrimination	under	the	Maine	

Human	 Rights	 Act,	 5	M.R.S.A.	 §	 4572(1)(A),	 evaluated	 under	 the	

“reasonable	 factor	 other	 than	 age”	 standard,	see	 Smith	 v.	 City	 of	

Jackson,	 544	 U.S.	 228	 (2005);	 the	 “business	 necessity”	 standard,	

see	Maine	Human	Rights	Comm’n	v.	City	of	Auburn,	408	A.2d	1253	

(1979);	or	some	other	standard?

We	answer	the	certified	question	as	follows:	“A	claim	for	disparate	impact	age	

discrimination	 pursuant	 to the	 Maine	 Human	 Rights	 Act,	 5	 M.R.S.	

§ 4572(1)(A),	is	evaluated	according	to	the	‘business	necessity’	framework.”
2

I.		BACKGROUND

[¶2]	 	 The	 facts	 and	 procedural	 history	 are	 undisputed.	 	 Lorraine	

Scamman	and	others similarly	situated (collectively,	the	plaintiffs)	worked	at	

various	Shaw’s	Supermarkets	locations	in	Maine	as	full-time	employees	when	

their	 employment	 was	 terminated	 in	 2012	 as	 part	 of	 a	 reduction	 in	 force.	

Pursuant	to	a	policy	Shaw’s	implemented	to carry	out	the	reduction	in	 force,	

only	full-time	employees	were	terminated.	 Because	full-time	employees	were,	

on	 average,	 older	 than	 part-time	 employees,	 the	 reduction	 in	 force	 affected	

more older	 employees,	 including	 the	 plaintiffs,	 than younger	 employees.	

Shaw’s	explained	that “business	imperatives	made	it	necessary	.	.	. to	cut	costs	

by	 at	 least	 $550,000	 per	 week,	 company-wide,	 and	 the	 reduction	 in	 force	

allowed	it	to	do	so.”

[¶3]		After	the	plaintiffs filed	complaints	with	the	Maine	Human	Rights	

Commission	 alleging	 age	 discrimination	 in	 violation	 of	 the	 Maine	 Human	

Rights	Act	(MHRA),	5	M.R.S.	§§	4551-4634	(2012),1 a	Commission	investigator	

recommended	 that	 the	 Commission	 find	 reasonable	 grounds	 to	 believe that	

 1		Portions	of	the	MHRA	not	relevant	to	the	question	presented	in	this	case	have	been	amended	

since	the	plaintiffs	filed	their	claim.		See P.L.	2015,	ch.	457,	§§	1-4	(effective	July	29,	2016) (codified	

at	 5	M.R.S.	 §§	4553(1-H),	 (9-E)(A),	4582-A(3),	4592(8) (2016));	 P.L.	2015,	 ch.	 102,	 §	 9	 (effective	

Oct.	15,	2015)	(codified	at	5	M.R.S.	§	4594-D(11)	(2016));	P.L.	2013,	ch.	576,	§§	1-3	(effective	Aug.	1,	

2014)	(codified	at	5	M.R.S.	§	4573(5),	(6)(B),	(7)	(2016)).
3

Shaw’s	had	violated	 the	MHRA	by	discriminating	based	on	age	pursuant	 to	a	

disparate	 impact	 theory.2 The	 investigator	 applied	 the	 three-step,	

burden-shifting	 “business	 necessity”	 framework to	 analyze	 the	 plaintiffs’

allegations.	 See Albemarle	 Paper	 Co.	 v.	 Moody,	 422 U.S.	 405,	 425	 (1975);	

Griggs	 v.	 Duke	 Power	 Co.,	 401	 U.S.	 424,	 429-35	 (1971); Me.	 Human	 Rights	

Comm’n	 v.	 City	 of	 Auburn,	 408	 A.2d	 1253,	 1264-68 (Me.	 1979).	 	 The	

Commission	 voted	 unanimously	 to	 adopt the	 investigator’s	 analysis	 and	

recommendations.		

[¶4]	 	 The	 plaintiffs then	 filed	 a	 complaint	 in	 the	 Superior	 Court	

(Androscoggin	 County),	 alleging	 unlawful	 employment	 discrimination	 based	

on	 age	 pursuant	 to	 the	 MHRA.

3	 	 See 5	 M.R.S.	 §	 4572(1)(A) (2016).	 	 After	

Shaw’s	removed	the	case	to	the	United	States	District	Court	for	the	District	of	

Maine,	 the	 court,	 upon	 a joint	 request	 by the	 parties, certified to	 us the	

question	 of	 what	 framework	 of	 proof	 applies	 to a	 claim	 of disparate	impact	

 2	 	The	investigator	 recommended	 that	 the	 Commission	find	 no	 reasonable	 grounds to	 believe

that	 Shaw’s	 violated	 the	MHRA	 based	 on	 a	 disparate	treatment (i.e.,	 “intentional	 discrimination”)	

theory.		See,	e.g.,	EEOC	v.	Abercrombie	&	Fitch	Stores,	Inc.,	135 S. Ct.	2028,	2032	(2015);	Me.	Human	

Rights	Comm’n	v.	City	of	Auburn,	408	A.2d	1253,	1261-62 (Me.	1979).

3		The	MHRA	prohibits	recovery	of	attorney	fees	as	well	as compensatory	and	punitive	damages	

under	certain	circumstances	unless	the	plaintiff has	filed	a complaint	with	the	Commission	and	one	

of	several	outcomes	has	resulted.		5	M.R.S.	§	4622(1)	(2016);	see	Gordan	v.	Cummings,	2000	ME	68,	

¶	 11,	 756	 A.2d	 942.	 	Those	 outcomes include	 the	 Commission’s	“[f]ail[ure],	 within	 90	 days	 after	

finding	 reasonable	 grounds	 to	 believe	 that	 unlawful	 discrimination	 occurred,	 to	 enter	 into	 a	

conciliation	agreement	to	which	the	plaintiff	was	a	party.”		5	M.R.S.	§	4622(1)(B).
4

age	 discrimination brought	 pursuant	 to	 the	 MHRA.	 	 See	 Scamman	 v.	 Shaw’s	

Supermarkets,	Inc.,	No.	2:15-cv-00295-JDL,	2016	U.S.	Dist.	LEXIS	10271	(D.	Me.	

Jan.	26,	2016).

[¶5]		Shaw’s	argues	that	a	provision of the federal Age	Discrimination	in	

Employment	 Act (ADEA),	 29 U.S.C.S.	 §§ 621-634	 (LEXIS	 through	 Pub.	 L.	 No.	

114-328), known	 as	the	 “reasonable	 factor	 other	 than	 age”	 (RFOA) defense,

should	 apply	 to	 MHRA	 claims	 of	 disparate	 impact	 age	 discrimination.	 The	

parties	agree	that	if	the	RFOA	defense	applies	pursuant	to	Maine	law,	Shaw’s

is entitled	 to	 a	 judgment	 as	 a	 matter	 of	 law	 on	 the	 plaintiffs’ age	

discrimination	claim.	 They also	agree	 that	if	 the	Commission	was	correct	 to	

apply	 the	“business	 necessity”	 framework instead,	 further	 discovery	 will	 be	

necessary	 to	 develop	 the	 issues	 of	 (1)	 whether	 the	 reduction	 in	 force	 was	

actually	 motivated	 by	 a	 business	 necessity and	 (2)	 if	 so,	 whether	

less-discriminatory alternatives would	have	served those	business	needs.	

II.		DISCUSSION

A. Acceptance	of	the	Certified	Question	of	State	Law

[¶6]		We must	 first	decide	whether	 to	accept	and	answer	 the	certified	

question.		See 4	M.R.S.	§	57;	Alexander,	Maine	Appellate	Practice §	25.1	at	194	
5

(4th	 ed.	 2013)	 (“Consideration	 of	 the	 merits	 of	 a certified	 question	 is	 not	

automatic.”).

[W]herever	 reasonably	 possible,	 the	 state	 court	 of	 last	 resort	

should	 be	given	 opportunity	 to	decide	 state	law	issues	 on	which	

there	 are	 no	 state	 precedents	 which	 are	 controlling	 or	 clearly	

indicative	 of	 the	 developmental	 course	 of	 the	 state	 law	 because	

this	 approach	 (1)	 tend[s]	 to	 avoid	 the	 uncertainty	 and	

inconsistency	in	 the	exposition	 of	 state	law	 caused	when	 federal	

[c]ourts	 render	 decisions	 of	 [s]tate	 law	 which	 have	 an	 interim	

effectiveness	until	the	issues	are finally	settled	by	the	state	court	

of	last	 resort;	 and	 (2)	minimize[s]	 the	 potential	 for	 state-federal	

tensions	arising	 from	actual,	 or	 fancied,	 federal	 [c]ourt	efforts	 to	

influence	the	development	of	[s]tate	law.

Bankr.	Estate	of	Everest	v.	Bank	of	Am., N.A.,	2015	ME	19,	¶	14,	111	A.3d	655

(quotation	marks	omitted).

[¶7]		“Title	4	M.R.S.	§	57 authorizes,	but	does	not	require,	us to	consider	

a	 certified	 question	 of	 state	 law	 posed	 by	 a	 federal	 court	 in	 certain	

circumstances.”	 	Id. ¶	 13 (quotation	 marks	 omitted);	see	 M.R.	 App.	 P.	 25(a).		

We may	 consider	 the	 merits	 of	 a	 certified	 question	 when	 three	 criteria	 are	

met:	 “(1)	 there	is	no	dispute	as	 to	 the	material	 facts	at	issue;	 (2) there	is	no	

clear	 controlling	 precedent;	 and	 (3)	 our answer,	 in	 at	 least	 one	 alternative,	

would	be	determinative	of	the	case.”		Everest,	2015	ME	19,	¶	13,	111	A.3d	655

(quotation	marks	omitted).
6

[¶8]	 	In	 this	 case,	 all	 three	 requirements	 are	 met.	 	 First,	 the	 material	

facts	 are	 undisputed.	 	 Second,	 there	 is no	 clear	 controlling	 precedent—

although	we have made	clear	that	the	business	necessity	test	applies	in	MHRA	

disparate	 impact	 cases	 based	 on	 sex	 discrimination,	 see City	 of	 Auburn,	

408 A.2d	at 1261-68,	we	have not	 yet	expressly	articulated	what	 framework	

applies	 in	 age-based	 disparate	 impact	 employment	 discrimination	 cases	

pursuant	 to the	MHRA.4		Finally,	 the	plaintiffs agree that	if	 the	ADEA’s	RFOA	

defense	does	apply,	Shaw’s	is	entitled	to	a	judgment	as	a	matter	of	law.		In	one	

alternative,	 therefore,	 our answer	 to	 the	 certified	 question	 would	 be	

determinative	 of	 the	 case.	 	 Because	 all	 three	 criteria	 are	 met,	 we	 elect	 to	

consider	and	answer	the	certified	question.

B. Legal	Background

1. Disparate	Impact	Discrimination	Claims

[¶9]		The	law	recognizes	at	least	two	theories	of	liability	upon	which	a	

plaintiff	 may	 prove	 a	 claim	 of	 employment	 discrimination:	 “disparate	

treatment”	 and	 “disparate	 impact.”	 	 See	 EEOC	 v.	 Abercrombie	 &	 Fitch	 Stores,	

 4 In	Maine	Human	Rights	Commission	v.	Department	of	Corrections,	we addressed	a	claim	that	an	

employer	 discriminated	 against	 the	 plaintiff	 on	 the	 basis	 of	 age	 and	 sex	 in	 violation	 of	 the	

then-existing	 version	 of	 the	MHRA.		474	A.2d	860,	863	 (Me. 1984).		The	plaintiff’s	claim	included	

both	 disparate	 treatment	 and	 disparate impact	 theories.	 	Id. at	 863-64.	 	 Analyzing	 the	 disparate	

impact	allegations,	we concluded	at	the	first	step	that	the	plaintiff	could	not	meet	her	initial	burden	

to	 make	 a	 prima	 facie	 showing	 of	 a	 disparate	 impact.	 	 Id. at	 865-66.	 	 We did	 not	 address what

framework	of	proof	should	apply	 to	age	discrimination	claims	specifically,	nor	did	we discuss	 the	

ADEA	or	the	RFOA	defense.		See	id.
7

Inc.,	135	S.	Ct.	2028,	2032	(2015);	City	of	Auburn,	408	A.2d	at	1261-63.		 In	a	

disparate	 impact	 claim,	 such	 as	 the	 suit	 at	 issue	 in	 this	 case,	 the	 plaintiff	

alleges	 that	 he	 or	 she	 is	 a	 member	 of	 a	 protected	 group	 that	 is	

disproportionately	 affected	 by	 an	 employer’s	 practice.	 	 E.g.,	 City	 of	 Auburn,	

408	A.2d	at	1264-68.		Statistical	evidence	is	the	“primary	method”	by	which	a	

plaintiff	supports	this	type	of	claim.5		Id. at	1264.

2. The	Business	Necessity	Framework

[¶10]	 	 The	 business	 necessity	 framework,	 pursuant	 to	 which	 the	

Commission	 analyzed	 the	 disparate	 impact	 claim	 in	 this	 case, consists	 of	 a	

three-step	burden-shifting	scheme:

First,	 the	 plaintiff	 must	 establish	 a	 prima	 facie	 case	 of	 disparate	

impact	 by	 identifying	 a	 facially	 neutral	 practice	 that	 affects	 one	

group	more	 harshly	 than	 another.	 	 Second,	if	 the	 plaintiff	meets	

her	 burden	 in	 the	 first	 step,	 the	 defendant	 must	 present	 prima	

facie	evidence	that	its	practice	is	justified	by	a	business	necessity.		

Finally,	if	 the	defendant	meets	its	burden	in	 the	second	step,	 the	

plaintiff	 must	 present	 prima	 facie	 evidence	 that	 the	 defendant’s	

proffered	justification	is	pretextual	or	 that	other	practices	would	

have	a	less	discriminatory	impact.

Dussault	 v.	 RRE	 Coach	 Lantern	 Holdings,	 LLC,	 2014	 ME	 8,	 ¶	 24,	 86	 A.3d	 52

(citations	omitted).

 5		In	a	“disparate	treatment”	claim,	also	called	an	“intentional	discrimination”	claim,	the	plaintiff	

alleges	 that	 the	 employer	 engaged	 in an	 adverse	 employment	 action	 against	 him	 or	 her	 as	 an	

individual	because	of	a	characteristic	that	is	protected	by	human	rights	legislation.		See	Abercrombie	

&	Fitch,	135 S. Ct.	at 2031-32;	City	of	Auburn,	408	A.2d	at 1263.
8

[¶11]	 	 The	 federal	 courts	 apply	 the	 business	 necessity	 framework	 to	

disparate	impact	claims	brought	pursuant	to	Title	VII	of	the	Civil	Rights	Act	of	

1964,	42 U.S.C.S.	§§	2000e	 to	2000e-17	(LEXIS	 through	Pub.	L.	No.	114-328),	

which	 prohibits	 discrimination	 in	 employment	 on	 the	 basis	 of	 various	

characteristics	 not	 including	 age. See 42	 U.S.C.S.	 §	 2000e-2(a);	 Albemarle,	

422 U.S.	at 425;	Griggs,	401	U.S.	at 429-35.		 In	City	of	Auburn,	we applied	the	

business	 necessity	 framework to	 an	 MHRA claim	 of	 disparate	 impact	 sex	

discrimination.		408	A.2d	at	1264-68.

3. The	RFOA	Defense

[¶12]	 	 Although Title	 VII	 of	 the	 Civil	 Rights	 Act	 of	 1964	 prohibits	

employment	discrimination	on	the	basis	of	various	characteristics	other	than	

age,	 the	 ADEA is the	 federal	 statutory	 scheme	 that	 proscribes	 age

discrimination	 in	 employment.	 See 29 U.S.C.S.	 §	 623(a).6	 	 The	 ADEA also	

 6		The	ADEA	provides,	in	relevant	part:

§	623.	Prohibition	of	age	discrimination.

(a) Employer	practices.		It	shall	be	unlawful	for	an	employer—

(1) to	 fail	 or	 refuse	 to	 hire	 or	 to	 discharge	 any	 individual	 or	 otherwise	

discriminate	against	any	individual with	respect	to	his	compensation,	terms,	

conditions,	or	privileges	of	employment,	because	of	such	individual’s	age;

(2) to	 limit,	 segregate,	 or	 classify	 his	 employees	 in	 any	 way	 which	 would	

deprive	 or	 tend	 to	 deprive	 any	individual	 of	 employment	 opportunities	 or	

otherwise	 adversely	 affect	 his	 status	 as	 an	 employee,	 because	 of	 such	

individual’s	age;	or
9

specifies,	however, that	“[i]t	shall	not	be	unlawful	for	an	employer	. .	.	to	take	

any	 action	 otherwise	 prohibited	 under	 subsection[] (a)	 .	 .	 .	 where	 the	

differentiation	 is	 based	 on	 reasonable	 factors	 other	 than	 age.”	 	 29	 U.S.C.S.	

§ 623(f)(1).		This	is	the	RFOA	defense.

[¶13]	 	In	light	 of	 the	RFOA	 defense,	 courts	analyzing disparate	impact	

age	 discrimination	 claims	 filed	 pursuant	 to	 the	 ADEA do	 not	 apply	 the	

business	necessity	framework.		Meacham	v.	Knolls	Atomic	Power	Lab.,	554	U.S.	

84,	97-99 (2008).		Once	the	plaintiff	has	satisfied	his	or	her	burden	 to	make	

out	a	prima	facie	case of	disparate	impact,	there	is	no	inquiry	into	whether	the	

employer’s	 facially	 neutral	 practice	 constitutes	 a	 business	 necessity	 or	

whether	 the	 employer	 could	 have	 accomplished	 the	 same	 goal	 by	

less-discriminatory	means.		See	id. at 95-100;	Smith	v.	City	of	Jackson,	544	U.S.	

228,	240,	243	(2005).		Instead,	the	burden	shifts	to	the	defendant	to	establish	

that	 the	 challenged	 practice	 is	 based	 on	 a	 reasonable	 factor	 other	 than	 age.		

29 U.S.C.S.	§ 623(f)(1);	see	Meacham,	554 U.S.	at	91-96;	Smith,	544	U.S.	at	243;	

29	C.F.R.	§	1625.7	 (2016).		The	United	States	Supreme	Court	has	made	clear	

that	the	existence	of	the	RFOA	defense	in	the	ADEA	means	that “the	scope	of	

 

(3) to	 reduce	 the	wage	 rate	 of	 any	 employee	in	 order	 to	 comply	with	 this	

Act.

29	U.S.C.S.	§	623(a)	(LEXIS	through	Pub.	L.	No.	114-328).
10

disparate-impact	liability	under	[the]	ADEA	is	narrower	than	under	Title	VII.”		

Smith,	544	U.S.	at	240;	see Meacham,	554 U.S.	at	102.

C. Analysis

1. Standards	of	Review

[¶14]	 	 The	 question	 before	 us	 is	 whether	 the	 business	 necessity	

standard applies	to	disparate	impact	age	discrimination	claims filed	pursuant	

to	 the	 MHRA,	 whether	 the	 ADEA’s	 RFOA	 defense	 applies,	 or	 whether	 some	

other	 framework of	proof	applies.	 To	answer	 this	question,	we	examine the	

terms	of	the	MHRA in	light	of	the	legal	background	we	have	described.		When	

interpreting	a	statute,	“we give	effect	to	the	Legislature’s	intent	by	considering	

the	 statute’s	 plain	 meaning	 and	 the	 entire	 statutory	 scheme	 of	 which	 the	

provision	 at	 issue	 forms	 a	 part.”	 	 Samsara	 Mem’l	 Trust	 v.	 Kelly,	 Remmel	 &	

Zimmerman,	2014	ME	107,	¶	42,	102 A.3d	757.	 Only	if	 the	plain	language of	

the	statute	is ambiguous	will	we	look	beyond	that	language to	examine	other	

indicia	of	legislative	intent,	such	as	legislative	history.		Zablotny	v.	State	Bd.	of	

Nursing,	 2014	ME	 46,	 ¶	 18,	 89	 A.3d	 143.	 	 “Statutory	language	is	 considered	

ambiguous	 if	 it	 is	 reasonably	 susceptible	 to	 different	 interpretations.”	 	 Id.

(alteration	 omitted)	 (quotation	 marks	 omitted).	 	 “When	 a	 statute	

administered	 by	 an	 agency	 is	 ambiguous,	 we review	 whether	 the	 agency’s	
11

interpretation	of	the	statute	is	reasonable	and	uphold	its	interpretation	unless	

the	statute	plainly	compels	a	contrary result.”		Fuhrmann	v.	Staples	the	Office	

Superstore	 E.,	 Inc.,	 2012	 ME	 135,	 ¶	 23,	 58	 A.3d	 1083 (quotation	 marks	

omitted).

2. Plain	Language

[¶15]	 The	MHRA	provides:	“The	opportunity	for	an	individual	to	secure	

employment	 without	 discrimination	 because	 of	 race,	 color,	 sex,	 sexual	

orientation,	 physical	 or	 mental	 disability,	 religion,	 age,	 ancestry	 or	 national	

origin	 is	 recognized	 as	 and	 declared	 to	 be a	 civil	 right.”	 	 5	 M.R.S.	 §	 4571

(2016).		More	specifically,

It	is	unlawful	employment	discrimination,	in	violation	of	this	Act,	

except	 when	 based	 on	 a	 bona	 fide	 occupational	 qualification	 .	 .	 .	

[f]or	 any	 employer	 to	 fail	 or	 refuse	 to	 hire	 or	 otherwise	

discriminate	 against	 any	 applicant	 for	 employment	 because	 of	

race	or	color,	sex,	sexual	orientation,	physical	or	mental	disability,	

religion,	age,	ancestry	 or	 national	 origin	 .	 .	 .	 or,	 because	 of	 those	

reasons,	to	discharge	an	employee	or	discriminate	with respect	to	

hire,	tenure,	promotion,	transfer,	compensation,	terms,	conditions	

or	 privileges	 of	 employment	 or	 any	 other	 matter	 directly	 or	

indirectly	related	to	employment	.	.	.	.

5	M.R.S.	§	4572(1)(A).

[¶16]	 	 In	 a	 section	 describing	 what	 is “[n]ot	 unlawful	 employment	

discrimination,”	the	MHRA	expressly allows	discrimination	on	account	of	age

effected	 in	 order	 to (1)	 comply	 with	 “laws	 relating	 to	 the	 employment	 of	
12

minors” and	(2) “[o]bserve	the	terms	of	any	bona	fide	employee	benefit	plan”	

that,	 inter	 alia,	 complies	 with	 the	 ADEA.	 	 5	 M.R.S.	 § 4573(1-A) (2016).		

Although section	4573(1-A)	specifically	refers	to	the	ADEA	in	describing	what	

is	 “[n]ot	 unlawful	 employment	 discrimination,”	 that	 section	 contains no

provision	allowing	an	employer	 to	 take	otherwise	prohibited	actions	 “where	

the	 differentiation	 is	 based	 on	 reasonable	 factors	 other	 than	 age.”7		

Cf. 29 U.S.C.S.	 § 623(a),	(f)(1).	 This	 suggests	 that	 the	 Legislature,	 while	 fully	

aware	of	 the	provisions	of	 the	ADEA,	did	not	intend	for	 the	RFOA	defense	 to	

be	available	pursuant	to	Maine	law.

[¶17]		On	the	other	hand,	the	MHRA also	does	not	affirmatively provide

that	the	business	necessity	test	applies to	disparate	impact	age	discrimination	

claims.	 	 Moreover,	 although	 the	 phrase	 “business	 necessity” appears in	 an

MHRA	 provision	 describing	 a	 defense	 to	 claims	 where	 the	 plaintiff	 alleges	

certain	 types	 of	 discrimination	 against	 an	 individual	 with	 a	 disability, that	

section	does	not	refer	to	claims	based	on	other	protected	characteristics,	such	

as	age.		See 5	M.R.S.	§	4573-A	(2016).

8		This	could	suggest	a	legislative	choice	

 7	 	 Nor	 did	 the	 Legislature	 include	 any	 reference	 to	 an RFOA	 defense	 in	 a	 section	 entitled	

“Defenses,”	5	M.R.S.	§	4573-A (2016),	or	in	any	other	portion	of	the	MHRA.

8		Title	5	M.R.S.	§	4573-A	provides,	in	relevant	part:

§	4573-A.		Defenses
13

that	the	business	necessity framework	should	apply	only to	disability-related	

MHRA	 claims.9	 	 See	 Musk	 v.	 Nelson,	 647 A.2d	 1198,	 1201	 (Me.	 1994) (“[A]

well-settled	rule	of	statutory	interpretation	states	that	express	mention	of	one	

concept	 implies	 the	 exclusion	 of	 others	 not	 listed.”).	 	 Looking only	 at	 the	

statute’s	plain	language,	we therefore	conclude	that	the	statute	is	“reasonably	

susceptible	to	different	interpretations,”	Zablotny,	2014	ME	46,	¶	18,	89	A.3d	

143	 (alteration	 omitted)	 (quotation	 marks	 omitted),	 and	 is	 therefore	

ambiguous.

3. Agency	Deference

[¶18]		As	we	noted	above,	we	give	deference	to	an	agency’s	reasonable	

interpretation	 of	 an	 ambiguous	 statute	 that	 it	 administers.	 	 Fuhrmann,	

 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 has	 been	 shown	 to	 be	 job-related	 and	

consistent	with	 business	 necessity,	and	 such	performance	 [cannot] be	accomplished	

by	reasonable	accommodation,	as	required	by	this	subchapter.

(Emphases	added.)

9	 	 This	 is	 merely	 one	 possible	 interpretation of	 5	 M.R.S.	 §	 4573-A,	 which	 renders	 the	 MHRA	

ambiguous	 as	 to	 the	 question	 presented	 in	 this	 case.	 	 We	 do	 not	 mean	 to	 suggest	 that	 it is	

necessarily	 the	 “correct” interpretation.	 Indeed,	 the	 statute	 refers	 to	 “a	 defense	 to	 a	 charge	 of	

discrimination	 under	 this	 subchapter,”	 5	 M.R.S.	 §	 4573-A(1)	 (emphasis	 added),	 which	 ostensibly

includes non-disability-based	 discrimination	 claims,	 see 5 M.R.S.	 §	 4572(1)(A) (2016).	 	 And no	

indication	 exists	 in	 our	 case law	 to	 suggest	 that	 we	 have	 abandoned	 the	 business	 necessity	

framework for	non-disability-based	disparate	impact	claims	since	the	enactment	of	section	4573-A	

in	 1995.	 See Dussault	 v.	 RRE	 Coach	 Lantern	 Holdings,	 LLC,	 2014	 ME	 8,	 ¶	 24,	 86 A.3d	 52 (“We	

evaluate	 claims	 of	 disparate	 impact	 in	 the	 employment	 context	 using [the]	 .	 .	 . three-step,	

burden-shifting	[business	necessity]	analysis.”);	P.L.	1995,	ch.	393,	§	21	(effective	Sept. 29,	1995);	

P.L.	1995,	ch.	511,	§	1	(effective	Feb.	22,	1996).
14

2012 ME	135,	¶	23,	58	A.3d	1083.		 “We	will	not	second-guess	 the	agency	on	

matters	 falling	 within	its	 realm	 of	 expertise.”	 	Mulready	 v.	 Bd.	 of	 Real	 Estate	

Appraisers,	 2009	 ME 135,	 ¶	 13,	 984	 A.2d	 1285 (quotation	 marks	 omitted);	

see also	Me.	Human	Rights	Comm’n	v.	United	Paperworkers	Int’l	Union,	383	A.2d	

369,	378	(Me.	1978).

[¶19]		The	Maine	Human	Rights	Commission	administers	the	MHRA;	it

is	required	to	investigate	human	rights	violations	and	“recommend	measures	

calculated	to	promote	the	full	enjoyment	of	human	rights	and	personal	dignity	

by	 all	 the	 inhabitants	 of”	 Maine.	 	 5	 M.R.S.	 §	 4566 (2016).	 	 To	 achieve	 those	

goals,	 it	 has	 the	 power	 to	 hold	 evidentiary	 hearings,	 adopt	 rules	 and	

regulations,	 publish	 results	 of	 investigations,	 report	 to	 the	 legislative	 and	

executive	 branches,	 and	 do	 “everything	 reasonably	 necessary	 to	 perform	its	

duties	under” the	MHRA.		5 M.R.S.	§	4566(4),	(7),	(10)-(12).

[¶20]	 	 Here,	 guided	 by City	 of	 Auburn,	 the	 Commission	 investigator	

unequivocally	 applied	 the	 business	 necessity	 framework	 to	 the	 plaintiffs’

disparate	impact	age	discrimination	claims,	and	the	Commission	unanimously	

adopted	the	investigator’s	report. The	Commission	has	also	made	clear,	in	its	

amicus	brief,	its	interpretation	that	the	ADEA’s	RFOA	defense	does	not	apply	

to	 MHRA claims	 and	 that	 the	 business	 necessity	 framework	 does	 apply.
15

Contrary	to	what	Shaw’s	contends,	therefore,	the	Commission’s	interpretation	

is	not indeterminate.

[¶21]	 	 Nor	 is	 the	 Commission’s	 interpretation	 unreasonable.		

See Fuhrmann,	 2012	 ME	 135,	 ¶	 23,	 58	 A.3d	 1083.	 	 On	 the	 contrary, its

interpretation	is	supported	by	the	MHRA’s	legislative	history	and	content	and	

by our	existing	case	law.

[¶22]	 	The	 Legislature	enacted	 the	MHRA	in	 1971.	 	P.L.	 1971,	 ch.	 501,	

§ 1.		At	 that	 time,	both	Title	VII	of	 the	Civil	Rights	Act	of	1964	and	 the	ADEA

were	already	in	effect.		See	City	of	Auburn,	408	A.2d	at	1261	&	n.10.		Although	

the	 ADEA	 contained	 the RFOA	 defense,	 29	 U.S.C.S.	 §	 623(f)(1),	 the	 Maine	

Legislature	did	not	include	an	RFOA	provision	in	the	MHRA.		The	Legislature	

revisited	 the	 section	describing	 “[n]ot	 unlawful	 employment	 discrimination”	

based	 on age	 in	 1977,	 1979,	 and	 1995.	 	 P.L.	 1977,	 ch. 580,	 §	 14;	 P.L.	 1979,	

ch. 350,	§§	2-3;	P.L.	1995,	ch.	393,	§	15.		The	1979	amendment	resulted	in	an	

express	reference	to	the	ADEA.		P.L.	1979,	ch.	350,	§§ 2-3.		The	Legislature	did	

not,	 however,	 enact	 an	 RFOA	 provision	 through	 any	 of	 these	 amendments.		

This	 history	 suggests	 that	 the	 Legislature	 has chosen—intentionally—not	 to	

limit	 the	scope	of	its	protections	against	age	discrimination	by	providing	 for	

an	RFOA	defense.
16

[¶23]	 	 The	 United	 States	 Supreme	 Court	 concluded in	 Smith that	 the	

legislative	 history	 of	 the	 ADEA	 demonstrates	 that	 Congress’s	 decisions	 to	

enact	the	ADEA	separately	from	Title	VII	and	to	provide	for	the	RFOA	defense

were	based	in	part	on	the	notion	that	“age,	unlike	race	or	other	classifications	

protected	 by	 Title	 VII,	 not	 uncommonly has	 relevance	 to	 an	 individual’s	

capacity	 to	 engage in	 certain	 types	 of	 employment.”10 544	U.S. at	 240.	 The	

legislative	 history	 of	 the	 MHRA	 does	 not	 suggest	that	 the	 Maine	 Legislature	

agreed	with	 that	 premise.	 	 Instead,	 “against	 the	 background of	 prior	 federal	

antidiscrimination	statutes,”	City	of	Auburn,	408	A.2d	at	1261—namely,	Title	

VII	 and	 the	 ADEA—the	 Legislature	 enacted	 a	 unitary	 antidiscrimination	

statute	 that	 is	 similar	 to	 Title	 VII	 but	 that	 includes age	 as	 a	 protected	

characteristic.	 	 Unlike	 Congress,	 the	 Maine	 Legislature	 did	 not	 create	 a	

separate	 statutory	 scheme	 specific	 to	 age	 discrimination.	 	The	MHRA’s	 situs	

on	 the	 historical	 timeline	 of	 anti-discrimination	 legislation,	 considered	

alongside the	 absence	 of	 statutory	 language	 creating	 an	 RFOA	 defense,	

suggests	 that	 the	Legislature	did	not	intend	 for	 the	scope	of	protection	 from	

 10		The	Supreme	Court	noted	that	“[d]uring	the	deliberations	that	preceded	the enactment	of	the	

Civil	Rights	Act	of	1964,	Congress	considered	and	rejected	proposed	amendments	that	would	have	

included	 older	 workers	 among	 the	 classes	 protected	 from	 employment	 discrimination.”	 	 Smith	 v.	

City	of	Jackson,	544	U.S.	228,	232	(2005).
17

age	 discrimination	 to	 be	 any	 different	 from	 the	 scope	 of	 protection	 from

discrimination	based	on	the	other	characteristics	enumerated	in	the	MHRA.

11

[¶24]		Shaw’s	argues	that	we	should	not	“reject	the	use	of	the	RFOA	test	

because	 it	 is	 not	 included	 in	 the	 statute,”	 where	 the	 MHRA	 also	 does	 not	

expressly	 codify	 the	 business	 necessity	 test	 for	 age-based	 discrimination	

claims.	 This	 argument	 relies on	 an	 inapt	 comparison because	 the	 two	

standards differ	 in	 nature.	 	 The	 RFOA	 defense is	 a	 creature	 of	 the	 ADEA	

statute;	it	is	an	affirmative	defense,	not	a	“test.”		Meacham,	554	U.S.	at	91-95;	

29	U.S.C.S.	§ 623(f)(1).		It	allows	an	employer	that	demonstrates	certain	facts	

to	 engage	 in	 “otherwise	 prohibited”	 conduct.	 	 See Meacham,	 554	 U.S.	 at	 95	

(“[A]	 defense	 to	 what	 is	 ‘otherwise	 prohibited’	 is	 an	 affirmative	 defense,	

entirely	 the	 responsibility	 of	 the	 party	 raising	 it.”).	 	 The	 business	 necessity	

test, conversely,	 is	 a	 judicially-created	 method	 of	 allocating	 the	 burdens	

involved	in	proving	entitlement	to	relief	on	a	claim	that	an	employer’s	facially	

neutral	 practice	 has	 the	 consequence	 of	 discriminating	 on	 the	 basis	 of	 a	

protected	 characteristic.	 	 See Albemarle,	 422 U.S.	 at	 425; Griggs,	 401	 U.S.	 at	

431-32; City	of	Auburn,	408	A.2d	at	1261-62,	1264.		That	the	statutory	RFOA	

 11		This	interpretation	is	consistent	with	the	notion	that	Congress	intended	the	ADEA	to	serve	as	

a	“floor”	of	protection	from	age	discrimination.		Me.	Human	Rights	Comm’n	v.	Kennebec	Water	Power	

Co.,	 468	 A.2d	 307,	 310	 (Me.	 1983) (“It	 is	 clear	 that	 Congress,	 in	 enacting	 the	 ADEA,	 intended	 to	

leave	room	for	states	to	supply	consistent	legislation.”).
18

language—which	already	existed	in	the	ADEA	when	the	MHRA	was	enacted—

is	 absent	 from	 the	 MHRA	 therefore	 sheds	 significantly	 more	 light	 on	 the	

Legislature’s	 intent	 than	 does	 the	 absence	 of	 a	 codification	 of	 the	 business	

necessity	 framework,	 which	 evolved	 in	 the	 courts	 after	 the	 MHRA	 was	

enacted.

[¶25]	 	 Our	 case	 law	 interpreting	 the	 MHRA	 also	 supports	 the	

Commission’s	interpretation.		Shaw’s	argues	that	because	the	MHRA	is	“silent”	

on	the	test	to	be	applied	to	the	claim	at	issue,	we should	“look	to	the	ADEA	for	

interpretation.”	 We	 have	indeed	looked	 to	 federal	human	 rights	legislation,	

and	the	cases	interpreting	it,	for	aid	in	interpreting	the	MHRA.		See, e.g., City	of	

Auburn,	408	A.2d	at	1261	 (“[T]he	Maine	legislature—by	adopting	provisions	

that	 generally	 track	 the	 federal	 antidiscrimination	 statutes—intended	 the	

courts	 to	 look	 to	 the	 federal	 case	 law	 to	 provide	 significant	 guidance	in	 the	

construction	 of	 our	 statute.”	 (quotation	 marks	 omitted));	 Wells	 v.	 Franklin	

Broad. Corp.,	 403 A.2d	 771,	 773	 n.4	 (Me.	 1979) (“[F]ederal	 cases	 construing	

the	ADEA	may	aid	our interpretation	of	the	provision	of	the	[MHRA]	banning	

age	discrimination	in	employment.”).

[¶26]		We	have been	careful,	however,	 to	specify	 that	we will	consider	

the	construction	of	a	federal	counterpart	to	the	MHRA only “when	the	federal	
19

and	state	laws	are	substantially	identical.”		Percy	v.	Allen,	449	A.2d	337,	342	

(Me. 1982);	 see	 Me.	 Human	 Rights	 Comm’n	 v.	 Kennebec	 Water	 Power	 Co.,	

468 A.2d	307,	310	 (Me.	1983) (“[W]here	 the	provisions	of	 the	Maine	 statute	

differ	 substantively	 from	 their	 federal	 counterparts,	 .	 .	 .	 deference	 to	

construction	 of	 the	 federal	 version	 is	 unwarranted.”).	 	 In	 Kennebec	 Water	

Power	 Co.,	 the	 plaintiff,	 who	 was	 in	 his	 thirties,	 alleged	 that	 an employer	

discriminated	 against	 him on	 the	 basis	 of	 age	 when	 it	 hired	 older	 workers	

instead	 of	 him.	 	 468	A.2d	at	 308.	 	The	 trial	 court	 concluded	 that	 the	ADEA’s	

provision	limiting	its	protection	to	individuals	forty	or	older,	which	the	MHRA	

does	not	contain,	applied	 to	MHRA	claimants.		Id. We disagreed,	concluding	

that	“in	enacting	the	age	discrimination	prohibitions,	the	Legislature	intended	

to	supplement	the	federal	ADEA.”		Id. at	310	(emphasis	added).		We “decline[d]	

to	 superimpose	 a	 limitation	 which	 does	 not	 appear	 on	 the	 face	 of	 the	

statute.”12		Id.

[¶27]		Unlike	the	ADEA,	the	MHRA	does	not	contain	an	RFOA	affirmative	

defense.	 	 This	 is	 a	 substantive	 difference;	 the	 laws	 are	 not	 “substantially	

 12		We held	similarly	in	Whitney	v.	Wal-Mart	Stores,	 Inc.,	2006	ME	37,	¶¶	24-31,	895	A.2d	309,	

superseded	by	statute	as	stated	in Rooney	v.	Sprague	Energy	Corp.,	No.	CV-06-20-B-W,	2007	U.S.	Dist.	

LEXIS	78147,	at	*6-8 (D.	Me.	Oct.	19,	2007).		In	that	case,	we rejected	an	employer’s	argument	that	

the	MHRA’s	definition	of	“physical	or	mental	disability”	should	be	read	to	include	the	requirement	

of	the	federal	Americans	with	Disabilities	Act	of	a	showing	of	a	substantial	limitation	on	a	major	life	

activity.		Id.		We declined	to	“in	effect,	amend	the	MHRA	to	include	the	limitation	present	in	federal	

law	but	not	in	the	Maine	Legislature’s	enacted	definition	of	‘disability.’”		Id. ¶	27.
20

identical,” Percy,	 449	 A.2d	 at	 342.	 	 Thus,	 neither	 the	 text	 of	 the	 RFOA	

affirmative	 defense nor the	 federal	 cases	 applying	that	 text provides helpful

guidance	for	interpreting	our statute.		We	therefore	uphold	the	Commission’s	

reasonable	determination	that	the	business	necessity	test	applies	to	disparate	

impact	 age	 discrimination	 claims	 brought	 pursuant	 to	 the	 MHRA.		

See Fuhrmann,	2012	ME	135,	¶	23,	58	A.3d	1083.

The	entry	is:

We	answer	the	certified	question	as	follows:	“A	

claim	 for	 disparate	 impact	 age	 discrimination	

pursuant	 to	 the	 Maine	 Human	 Rights	 Act,	

5 M.R.S.	§	4572(1)(A),	is	evaluated	according	to	

the	‘business	necessity’	framework.”

Jeffrey	Neil	Young,	Esq.,	Carol	J.	Garvan,	Esq.,	and	Max	I.	Brooks,	Esq.	(orally),	

Johnson,	Webbert	&	Young,	LLP,	Augusta,	 for	appellant	Lorraine	Scamman	et	

al.

K.	Joshua	Scott,	Esq.	(orally),	Jackson	Lewis	P.C.,	Portsmouth, New	Hampshire,

for	appellee	Shaw’s	Supermarkets,	Inc.

Barbara	 Archer	 Hirsch,	 Esq.,	 Maine	 Human	 Rights	 Commission,	 Augusta,	 for	

amicus	curiae	Maine	Human	Rights	Commission

Richard	L.	O’Meara,	Esq.,	Murray	Plumb	&	Murray,	Portland,	for	amicus	curiae	

AARP

United	States	District	Court	for	the	District	of	Maine	docket	number	2:15-cv-00295-JDL

FOR	CLERK	REFERENCE	ONLY