United States Court of Appeals

For the First Circuit

No. 22-1394

CLARE E. MUNDELL,

Plaintiff, Appellee,

v.

ACADIA HOSPITAL CORP.,

Defendant, Appellant,

EASTERN MAINE HEALTHCARE SYSTEMS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge,

Lipez and Montecalvo, Circuit Judges.

Melissa A. Hewey, with whom Kasia S. Park and Drummond Woodsum

were on brief, for appellant Acadia Hospital.

Valerie Z. Wicks, with whom Borealis Law, PLLC, David G. 

Webbert, and Johnson & Webbert, LLP were on brief, for appellee 

Clare E. Mundell.

Janna L. Gau, Kady S. Huff, and Eaton Peabody on brief for 

the Maine State Chamber of Commerce, amicus curiae.

Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, ACLU of 
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Maine Foundation, Gillian Thomas, ACLU Foundation Women's Rights 

Project, Sunu Chandy, and National Women's Law Center on brief for 

the American Civil Liberties Union, American Civil Liberties Union 

of Maine, and National Women's Law Center, amici curiae. 

February 1, 2024
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LIPEZ, Circuit Judge. Paid half the rate earned by her 

male colleagues for comparable work as psychologists, appellee 

Clare Mundell brought this sex discrimination action against her 

former employer, Acadia Hospital ("Acadia"), under federal and 

state law.1 Ruling on Mundell's summary judgment motion, the 

district court found Acadia liable under the Maine Equal Pay Law 

("MEPL"), Me. Stat. tit. 26, § 628, and awarded Mundell treble 

damages, see id. § 626-A. On appeal, Acadia claims the district 

court erred in holding Mundell could prevail as a matter of law on 

her MEPL claim because Mundell did not establish Acadia's 

discriminatory intent and because Acadia asserted a viable

reasonable-factor-other-than-sex affirmative defense to explain 

the pay differential between Mundell and her male colleagues. The 

hospital further asserts that treble damages are not available for 

violations of the MEPL.

This case raises complex issues involving the 

construction of Maine law. Acadia moved, both in the district 

court and on appeal, for certification of a two-part question to 

the Maine Supreme Judicial Court (the "Law Court"),2 the answer to

1 Eastern Maine Healthcare Systems ("Eastern Maine") was also 

named as a defendant but later dismissed. 

2 The Maine Supreme Judicial Court is referred to as the Law 

Court when it is sitting in its capacity as an appellate court and 

when it considers questions of state law referred to it by federal 

courts. See Me. Stat. tit. 4, § 57 ("When it appears to the 

Supreme Court of the United States, or to any court of appeals or 
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which depends on whether discriminatory animus -- i.e., an intent 

to discriminate -- is a required element of a MEPL claim.3 Like 

the district court, however, we conclude that certification is 

unnecessary. We also agree with the district court's construction 

of the relevant Maine statutes. Accordingly, we affirm the 

judgment and award of damages for Mundell.

I.

The facts relevant to the issues before us are 

undisputed. Mundell is a licensed clinical psychologist who, for 

district court of the United States, that there is involved in any 

proceeding before it one or more questions of law of this State, 

which may be determinative of the cause, and there are no clear 

controlling precedents in the decisions of the Supreme Judicial 

Court, such federal court may certify any such questions of law of 

this State to the Supreme Judicial Court for instructions 

concerning such questions of state law, which certificate the 

Supreme Judicial Court sitting as the Law Court may, by written 

opinion, answer.").

3 Acadia requests that we certify the following question 

involving constructions of the MEPL and 26 M.R.S. § 628:

Where an employer pays an employee at a rate 

less than another employee of the opposite sex 

who performs comparable work on a job with 

comparable requirements as to skill, effort, 

and responsibility for any reason other than 

an established seniority system, merit 

increase system, or difference in the shift or 

time of the day worked, does such conduct 

constitute a per se violation of the Maine 

Equal Pay Law, 26 M.R.S. § 628, entitling a 

plaintiff to recover treble damages and 

attorneys' fees pursuant to 26 M.R.S. § 626-

A?
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two and a half years beginning in 2017, was employed by Acadia, a 

nonprofit hospital in Bangor, Maine. Acadia employed a "pool" of 

five psychologists during this time, comprising two men and three

women. Acadia paid the two male psychologists at a rate of $95 

and $90 per hour, respectively, but paid the female pool 

psychologists around $50 per hour.

During a conversation with a fellow pool psychologist, 

Mundell learned that her male colleagues were paid more than her. 

Subsequently, she learned about other pay disparities between men 

and women in other jobs at Acadia. Believing the pay discrepancy 

between herself and her colleagues to be sex-based, she brought it 

to the attention of management. Around this time, Acadia 

independently became aware of several sex pay disparities among 

hospital employees and began a process to standardize pay across 

sexes. After a series of conversations between Mundell and Acadia 

in which the parties attempted to arrive at a mutually agreeable 

solution, Mundell informed Acadia on March 6, 2020, that she would 

be resigning, citing the differential between her wage and that of 

her male counterparts. Although she told Acadia she would work 

for two weeks after submitting her resignation to transition her 

patients, Mundell was informed on March 9, 2020, that she should 

not return to work after finishing the day.

The parties agree that all the pool psychologists, 

including Mundell, possessed the same fundamental qualifications 
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for the role: doctoral degrees and licenses to practice psychology 

in Maine, and comparable experience and skills in providing 

psychological services. Acadia also concedes that it did not pay 

its pool psychologists differently pursuant to any seniority 

system, difference in shift or time of day worked, or merit 

increase system. Instead, it says that a "'market-based' 

compensation structure" (hereinafter "market factors") explained 

any pay disparity between Mundell and her male colleagues.

Mundell filed an administrative complaint for state and 

federal sex discrimination and retaliation with the Maine Human 

Rights Commission, which also was cross-filed with the Equal 

Employment Opportunity Commission. After exhausting the 

administrative process, she filed the instant action in federal 

court. Mundell alleged that Acadia and Eastern Maine violated the 

MEPL by paying male and female employees different wages for 

"comparable work," Me. Stat. tit. 26, § 628; that Acadia and 

Eastern Maine's failure to provide equal pay amounted to sex 

discrimination in violation of the Maine Human Rights Act ("MHRA"), 

Me. Stat. tit. 5, § 4572(1)(A), and Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and that Acadia and Eastern 

Maine committed unlawful retaliation by firing her after she 

complained of sex-based discrimination, in violation of Title VII, 

the MHRA, and the Maine Whistleblower Protection Act, Me. Stat. 

tit. 26, § 833(1)(A).
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In September 2021, Mundell moved for partial summary 

judgment only on her MEPL claim against Acadia, asserting that the 

undisputed facts -- the acknowledged pay disparity for comparable 

work that Acadia admitted was not due to an established seniority 

system, merit pay system, or shift differences -- established 

Acadia's liability under the state's equal pay statute. In 

opposing the motion, Acadia argued that this showing was 

insufficient for Mundell to prevail as a matter of law because the 

statute also required a showing of intent to discriminate, or, 

alternatively, Acadia should be permitted to raise the affirmative 

defense that it relied on a reasonable factor other than sex (i.e., 

market factors) to set these wages. Mundell countered that any 

requirement to establish discriminatory intent for the unequal pay 

would read an intent requirement into the text of the MEPL when 

there is none, and that market factors did not constitute a valid 

affirmative defense under the MEPL. One day after the district 

court held oral argument on that motion, Acadia filed its Motion 

for Certification to the Law Court.

On February 8, 2022, the district court issued its 

decision addressing both the certification and partial summary 

judgment motions. The district court first held that certification 

to the Law Court was inappropriate because the plain language of 

the MEPL, the statute's legislative history, comparable statutes 

and precedent, and public policy all provided more than enough 
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evidence of how the Law Court would likely resolve the issues of 

statutory interpretation raised by the parties. Mundell v. Acadia 

Hosp. Corp., 585 F. Supp. 3d 86, 90-91 (D. Me. 2022). The district 

court then analyzed the MEPL's statutory language (viewing it as 

plain and unambiguous); applicable case law under the Federal Equal 

Pay Act ("FEPA"), 29 U.S.C. § 206(d), and similar state statutes

(viewing them as analogous); and the MEPL's legislative history 

(viewing it as instructive). See Mundell, 585 F. Supp. 3d at 91-

95.

The court concluded that this material compelled the 

following holdings: (1) the MEPL does not impose an intent 

requirement on a plaintiff, nor does it permit a defendant to rely 

on a catch-all affirmative defense (i.e., claiming that pay 

differences are based on "any reasonable differentiation except 

difference in sex") because the MEPL explicitly limits affirmative 

defenses to pay differentials based on seniority, merit, or 

differences in shift/time of day worked, id. at 92-94 (concluding 

that "the act of paying unequal wages for comparable work 

establishes discrimination on the basis of sex under the [MEPL]," 

and refusing to "will into existence by judicial fiat a catchall 

affirmative defense that does not exist in the text of the law");

and (2) those who violate the MEPL can be obligated to pay treble 

damages, id. at 99 (analyzing Me. Stat. tit. 26, § 626-A).
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The parties then filed a Joint Stipulation of Dismissal 

with Prejudice of Mundell's Title VII and MHRA claims against 

Acadia as well as all of Mundell's claims against Eastern Maine. 

The district court entered a judgment of dismissal in accordance 

with the parties' stipulation. It also entered judgment against 

Acadia and in favor of Mundell for a violation of the MEPL and 

awarded Mundell $180,955.90 (the damages she requested in full). 

This judgment was a final judgment and disposed of all of Mundell's 

claims. 

In addition to filing its appeal, Acadia asked us to 

certify to the Law Court the same question involving statutory 

construction it had raised before the district court. We denied 

the motion without prejudice to consider along with the merits of 

the appeal. Acadia also seeks review of the district court's grant 

of partial summary judgment, arguing that the court erred in its 

construction of Maine law by: (1) holding that a plaintiff need 

not show an intent to discriminate to succeed with a claim under 

the MEPL, and that, in so concluding, the court also incorrectly

read the MEPL to have only limited affirmative defense categories; 

and (2) holding that treble damages are available for MEPL 

violations.

II.

We review an order granting summary judgment de novo. 

Benson v. Wal-Mart Stores E., L.P., 14 F.4th 13, 17 (1st Cir. 
- 10 -

2021). The interpretation of a statute or regulation, which 

presents a purely legal question, is likewise subject to de novo

review. O'Connor v. Oakhurst Dairy, 851 F.3d 69, 71 (1st Cir. 

2017).

A. Certification

When faced with potentially outcome-determinative 

questions of Maine law for which "there is no clear controlling 

precedent in the decisions of the Supreme Judicial Court," a 

federal court may certify those questions to the Law Court "for 

instructions" on how to rule. Me. R. App. P. 25. However, "a 

federal court . . . should not simply throw up its hands but, 

rather, should endeavor to predict how that court would likely 

decide the question." Butler v. Balolia, 736 F.3d 609, 612-13 

(1st Cir. 2013) (citing In re Bos. Reg'l Med. Ctr., Inc., 410 F.3d 

100, 108 (1st Cir. 2005)). Indeed, we should not "bother our busy 

state colleagues with every difficult state-law issue that comes 

our way," Plourde v. Sorin Group USA, Inc., 23 F.4th 29, 36 (1st 

Cir. 2022) (citing Patel v. 7-Eleven, Inc., 8 F.4th 26, 29 (1st 

Cir. 2021)), particularly in cases where "state law is sufficiently

clear to allow us to predict its course." In re Engage, Inc., 544 

F.3d 50, 53 (1st Cir. 2008) (emphasis added) (observing that 

"certification would be inappropriate" in such cases "even in the 

absence of controlling precedent"). Moreover, as our circuit 

colleague long ago recognized, not only does certifying questions 
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"add to the workload of the responding court," it also places a 

burden of time and expense on parties asked to redevelop, rebrief, and reargue the same issue multiple times in different fora. 

Hon. Bruce M. Selya, Certified Madness: Ask a Silly Question . . ., 

29 Suffolk U. L. Rev. 677, 682, 689-90 (1995). 

Here, the district court denied certification because 

"'the plain language of the statute, legislative history and public 

policy[] all' point in the same direction and make the correct 

constructions of [the] MEPL and § 626-A sufficiently clear." 

Mundell, 585 F. Supp. 3d at 91 (quoting Int'l Ass'n of Machinists 

& Aerospace Workers v. Verso Corp., 121 F. Supp. 3d 201, 227 (D. 

Me. 2015)). We agree with the thoughtful analysis of the district 

court. As our discussion below demonstrates, certification is 

unnecessary and inappropriate because the factors cited by the 

district court, which the Law Court also would consider, provide 

us with ample guidance. 

B. The MEPL and "Intent to Discriminate"

When asked to determine the meaning of a Maine statute 

that the Law Court has not yet interpreted, we "predict 'how that 

court likely would decide the issue.'" Barton v. Clancy, 632 F.3d 

9, 17 (1st Cir. 2011) (quoting González Figueroa v. J.C. Penney 

P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009)). When 

interpreting a statute, Maine courts "give effect to the 

Legislature's intent by considering the statute's plain meaning 
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and the entire statutory scheme of which the provision at issue 

forms a part." Scamman v. Shaw's Supermarkets, Inc., 157 A.3d 

223, 229 (Me. 2017) (quoting Samsara Mem'l Tr. v. Kelly, Remmel & 

Zimmerman, 102 A.3d 757, 771 (Me. 2014)). "Only if the plain 

language of the statute is ambiguous" should courts "look beyond 

[it] to examine other indicia of legislative intent, such as 

legislative history." Id. The Law Court also has stressed that 

"[n]othing in a statute may be treated as surplusage if a 

reasonable construction applying meaning and force is otherwise 

possible." State v. Murphy, 130 A.3d 401, 404 (Me. 2016) 

(alteration in original) (quoting State v. Lowden, 87 A.3d 694, 

697 (Me. 2014)); see also State v. Dubois Livestock, Inc., 174 

A.3d 308, 311 (Me. 2017) ("We reject interpretations that render 

some language mere surplusage." (quoting Dickau v. Vt. Mut. Ins. 

Co., 107 A.3d 621, 628 (Me. 2014))). 

The MEPL provides in relevant part4: 

An employer may not discriminate between 

employees in the same establishment on the 

basis of sex by paying wages to any employee 

in any occupation in this State at a rate less 

than the rate at which the employer pays any 

employee of the opposite sex for comparable 

4 As of October 25, 2023, an amended version of the MEPL 

codified at Me. Stat. tit. 26, § 628 also prohibits pay 

discrimination on the basis of race. We rely on the prior version 

of the statute in effect at the time Mundell filed suit, which 

contains identical language with respect to sex-based 

discrimination and affirmative defenses but did not include the 

prohibition on race-based pay discrimination. 
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work on jobs that have comparable requirements 

relating to skill, effort and responsibility. 

Differentials that are paid pursuant to 

established seniority systems or merit 

increase systems or difference in the shift or 

time of the day worked that do not 

discriminate on the basis of sex are not 

within this prohibition.

Me. Stat. tit. 26, § 628. Because the parties agree that Acadia 

paid Mundell and the other female psychologists less than it paid 

the male psychologists, and that these employees all occupied the 

same job and performed comparable work to one another, the 

undisputed facts of this case arguably establish -- as Mundell has 

asserted -- the core elements of a MEPL claim. Acadia has further 

acknowledged that these pay differences resulted from something 

other than an established seniority system, merit pay system, or 

shift differences. Hence, the MEPL's three enumerated affirmative 

defenses do not on their face shield Acadia from MEPL liability.

Acadia argues, however, that the district court wrongly 

concluded that the undisputed facts were sufficient to establish 

Acadia's liability under the MEPL as a matter of law. 

Specifically, Acadia says the district court incorrectly construed 

the MEPL to be a law of strict liability, namely "read[ing]" out 

of the liability portion of the statute "the words 'discriminate' 

and 'on the basis of sex.'" Under this flawed construction, Acadia 

asserts, "an employer who pays employees different rates of pay on 

the basis of their geographic assignments, their ability to 
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generate business, their willingness to relocate, or any number of 

legitimate business reasons, is deemed to have discriminated 

against the lower paid employee simply because the two employees 

happen to be of different sexes." Acadia claims that reading the

statute to exclude an intent element, in combination with reading 

the statute to provide only the three listed affirmative defenses, 

would have devastating practical consequences for Maine businesses 

surely not intended by the Maine Legislature.

Mundell insists, as the district court concluded, that 

the provision unambiguously imposes liability for established (or 

admitted to) pay differences between male and female employees for 

comparable work in comparable jobs without regard to the employer's 

intent, and allows as defenses only the three specified, facially 

sex-neutral rationales for the challenged pay disparity so long as 

those practices do not, in fact, arise from sex-based 

discrimination.

Thus, the questions before us are: (1) whether Acadia's 

liability under the MEPL depends on a finding that its unequal 

treatment of male and female psychologists resulted from 

discriminatory intent, a factual issue that would need to be 

explored on remand; and (2) whether Acadia can justify the pay 

disparity, and avoid liability, based on a sex-neutral rationale 

that is not one of the three affirmative defenses identified in 

the MEPL, another issue that would need factual development and 
- 15 -

foreclose summary judgment for Mundell.

1. Plain Language of the Statute

As described above, Acadia's primary textual argument is 

that "on the basis of sex" in the first sentence of the MEPL 

inescapably means "because of sex" -- i.e., liability attaches 

only if the employer is intentionally paying one group of employees 

less "because of" their sex. Acadia further argues that, even if 

we conclude that the liability portion of the statute does not 

include intent as an element, Mundell still cannot prevail on her 

MEPL claim as a matter of law because the statute's second sentence

contemplates affirmative defenses based on virtually any 

reasonable, non-sex-based explanation for the challenged pay 

differential.5

Acadia's construction of the MEPL does not withstand

careful review. Like the district court, we conclude that 

Mundell's reading is the only reasonable interpretation of the 

MEPL's text and, hence, that the statute is unambiguous. See

Scamman, 157 A.3d at 229 ("Statutory language is considered 

ambiguous if it is reasonably susceptible to different 

interpretations." (quoting Zablotny v. State Bd. of Nursing, 89 

5 Acadia seems to qualify its view by accepting that employers 

could not defend against liability by invoking illegitimate, 

arbitrary, or unreasonable rationales for a sex-based differential 

in pay.
- 16 -

A.3d 143, 148 (Me. 2014))); cf. Bloate v. United States, 559 U.S. 

196, 208 (2010) (observing that statutory interpretation is not 

undermined simply because the statute is "amenable to another 

interpretation").

That is not to say the MEPL's language is 

straightforward. A statute's complexity, however, does not 

necessarily render it ambiguous. See, e.g., Kisor v. Wilkie, 139 

S. Ct. 2400, 2415 (2019) (noting that "a court cannot wave the 

ambiguity flag just because it found the regulation impenetrable 

on first read"); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) ("The 

statute is awkward, and even ungrammatical; but that does not make 

it ambiguous . . . ."); Pauley v. BethEnergy Mines, Inc., 501 U.S. 

680, 707 (1991) (Scalia, J., dissenting) (declaring that a text is 

not ambiguous merely because "discerning the only possible 

interpretation requires a taxing inquiry").

The district court tackled the interpretive challenge 

posed by the MEPL. As the court carefully explained, the 

provision's first sentence is plainly a statement of liability --

that is, the sentence describes when an employer will be found in 

violation of the MEPL's prohibition on discrimination: "An 

employer may not discriminate between employees . . . on the basis 

of sex by paying [unequal wages] for comparable work . . . ." Me. 

Stat. tit. 26, § 628 (emphasis added). If an employer does what 

is described after the word "by" -- i.e., the employer pays unequal 
- 17 -

wages to male and female employees for comparable work in jobs 

with comparable requirements -- the employer is, under the 

statutory definition, discriminating on the basis of sex. We agree 

with the district court that this language provides no role for

the employer's motivation. The sentence states, without 

qualification, that it is the unequal pay, not the reasons for it, 

that constitutes the impermissible discrimination.6

Reading the MEPL's liability sentence to exclude a 

requirement of intent is further compelled when that sentence is 

viewed alongside the statute's next sentence specifying certain 

permissible employer defenses to liability. As the district court 

observed, if the MEPL required proof of intent to establish 

liability, it would necessarily follow that virtually all policies 

or systems of pay disparity between men and women not rooted in 

6 The fact that state and federal antidiscrimination statutes 

with substantively similar or identical language permit plaintiffs 

to raise disparate impact claims further bolsters this point. For 

example, Title VII prohibits discrimination "because of" a 

protected trait and has been interpreted to proscribe not only 

intentional discrimination, but also facially neutral practices 

that disparately impact members of a certain class regardless of 

the employer's underlying motivation. See Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 422 (1975) ("Title VII is not [exclusively] 

concerned with the employer's 'good intent or absence of 

discriminatory intent[,]' for 'Congress directed the thrust of the 

Act to the consequences of employment practices, not simply the 

motivation.'" (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 

(1971))). Likewise here, the phrase "discriminate ... on the basis 

of sex" cannot reasonably be construed to prohibit only intentional 

discrimination as Acadia insists.
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intentional sex discrimination would fall outside the reach of the 

MEPL. See Mundell, 585 F. Supp. at 93. But the MEPL's second 

sentence negates any such interpretation of the statute.

The MEPL's second sentence reads: "Differentials that 

are paid pursuant to established seniority systems or merit 

increase systems or difference in the shift or time of the day 

worked that do not discriminate on the basis of sex are not within 

this prohibition." Me. Stat. tit. 26, § 628. Mundell argues that

construing the MEPL's first sentence to include an intent 

requirement would effectively incorporate an unwritten "catch-all 

defense" into the statute, defeating claims where employers point 

to any legitimate rationale other than intentional sex 

discrimination to explain the pay disparity. Indeed, that is, in 

essence, what Acadia asks us to do when it asserts that its market 

factors rationale is a legitimate defense to MEPL liability. 

But if the statute's first sentence had an intent 

requirement, these three affirmative defenses would be mere 

illustrations of reasons for pay differentials that do not 

constitute intentional sex discrimination. There is no textual

evidence, however, to read these affirmative defenses as examples 

or parts of a non-exhaustive list (e.g., "including" or "such as"). 

See Lee v. Massie, 447 A.2d 65, 68 (Me. 1982) ("Because the Maine 

Legislature omitted such language indicating the illustrative 

nature of its earlier definitional formulation ... we conclude 
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that [it] intended [the provision] to constitute a comprehensive 

and exclusive definition."); cf. Christopher v. SmithKline Beecham 

Corp., 567 U.S. 142, 162 (2012) (observing that the use of the 

word "includes" is "significant because it makes clear that the 

examples enumerated in the text are intended to be illustrative, 

not exhaustive"); United States v. Daniells, 79 F.4th 57, 69 (1st 

Cir. 2023) ("The use of the word 'includes' in the statutory 

definition . . . indicates . . . that the definition . . . 

encompasses more than [the two items listed]."); Carroll v. Trump, 

49 F.4th 759, 768-69 (2d Cir. 2022) (noting that the word 

"includes" suggests that the subsequent examples are illustrative, 

not exhaustive).7 Consequently, the MEPL's plain text forecloses 

Acadia's attempt to invoke a broader reading of the statute's 

second sentence.

Moreover, the three affirmative defenses chosen by the 

Maine Legislature are logical exceptions to the MEPL's otherwise 

all-encompassing prohibition against sex-based pay differentials. 

Seniority and merit-increase systems, as well as variations in 

working hours or conditions, are well-established and well-known

bases for wage differentials. See, e.g., Corning Glass Works v. 

7 In suggesting that the MEPL's second sentence could be 

serving such an illustrative or clarificatory purpose, the dissent 

refers to these enumerated affirmative defenses as "safe harbors."

That nomenclature, whatever its purpose, does not alter our 

analysis. 
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Brennan, 417 U.S. 188, 204 (1974) (discussing night-shift

scheduling); 29 U.S.C. § 206(d) (specifying seniority and merit 

systems among the acceptable reasons for pay differentials under 

the FEPA). There is nothing implausible about insulating just 

those three types of employment practices -- and not others --

from MEPL liability.

It is also significant that the MEPL's second sentence

contains a limitation: the three enumerated pay practices will 

shield an employer from MEPL liability only if their use in a 

particular instance, though resulting in a difference in pay across 

sexes, was not motivated by an employee's sex. See Me. Stat. tit. 

26, § 628.8 If the grounds for liability set forth in the first 

sentence of the MEPL required a showing of intent, there would be 

no need for the second sentence to state that the "established 

8 The logic of that qualification can be illustrated through 

the paradigmatic circumstances presented in Corning Glass Works v. 

Brennan, 417 U.S. 188 (1974), a case brought under the FEPA. The 

Court rejected pay disparities based on facially neutral criteria 

if they resulted from a history of paying women less than their 

male counterparts. See id. at 196-97, 204, 209-10. The Court 

explained that, if a company believed that women were incapable of 

working the night shift and therefore allowed only men to work 

that shift for higher pay, the company could not then claim 

protection under the affirmative defense of "a difference in the 

shift or time of the day worked" because the employer's 

discriminatory intent shaped the shift distribution in the first 

place. See id. at 196-97 (reasoning that the FEPA contemplates 

that a male night shift worker may receive a higher wage than a 

female day worker but only if that pay differential was due to the 

difference in the time worked and not because of sex).
- 21 -

seniority systems," "merit increase systems," and "differences in 

the shift or time of the day worked" only provide a defense to 

MEPL liability if they themselves "do not discriminate on the basis 

of sex." Id. The question of whether the system or shift 

differential resulted from the employer's discriminatory 

motivation would already have been answered.

Hence, as the district court concluded, the only 

reasonable construction of the MEPL is that liability attaches 

with proof that employees of one sex are being paid less than 

employees of another sex for comparable work in comparable jobs, 

regardless of intent,9 unless an employer can demonstrate that the 

disparity stems from the second sentence's three listed exceptions

-- and, even then, only if those excepted practices are not 

traceable to purposeful sex-based discrimination.

We recognize that this construction of the MEPL results 

in our reading the statute's first use of the phrase "discriminate 

. . . on the basis of sex" differently from its second use of the 

same phrase. But that difference does not undermine our 

9 Establishing each of these elements is no easy threshold 

for a plaintiff to meet. As the district court recognized, what 

may be most unusual about this case was Acadia's willingness to 

concede, for the purposes of summary judgment, that Mundell 

performed "comparable work" on a job that had "comparable 

requirements relating to skill, effort, and responsibility" as her 

male peers but received different pay than her male peers. 

Mundell, 585 F. Supp. 3d at 95.
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construction of the MEPL. In the first sentence, the job of 

"discriminate . . . on the basis of sex" is simply to define the 

prohibited discrimination. In the second sentence, which 

identifies three practices that may involve permissible pay 

differentials between the sexes, the job of the phrase is to narrow 

the carve-out to only those seniority systems, merit systems, and 

shift differentials that do not mask discriminatory motivation. 

The phrase plainly has a different purpose in each sentence of the 

MEPL, and we think it is both appropriate and permissible to 

construe it differently as required by those differing contexts. 

We are well aware, as the dissent argues, that there is 

a presumption that the same words in the same statute have the 

same meaning. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990) 

("Identical words used in different parts of the same act are 

intended to have the same meaning." (cleaned up)); Att'y Gen. v. 

Sanford, 225 A.3d 1026, 1030-31 (Me. 2020) (nearly identical 

statutory language demonstrates legislative intent to establish 

rights judged on equivalent terms). But that presumption "is not 

rigid." United States v. Cleveland Indians Baseball Co., 532 U.S. 

200, 213 (2001). The presumption has limits because "[m]ost words 

have different shades of meaning and consequently may be variously 

construed, not only when they occur in different statutes, but 

when used more than once in the same statute or even in the same 

section." Env't Def. v. Duke Energy Corp., 549 U.S. 561, 574 
- 23 -

(2007) (alteration in original) (quoting Atl. Cleaners & Dyers, 

Inc. v. United States, 286 U.S. 427, 433 (1932)).

Thus, the principle that a word ordinarily should be 

given the same meaning each time it is used within the same statute 

"readily yields" whenever the context demands a different 

conclusion -- i.e., when it is only reasonable to conclude that 

the same word or phrase was used differently in different parts of 

the statute. See Gen. Dynamics Land Sys., Inc., v. Cline, 540 

U.S. 581, 595-97 (2004) (quoting Atl. Cleaners & Dyers, Inc., 286 

U.S. at 433). That is the situation that exists in the MEPL. Cf.

Cleveland Indians Baseball Co., 532 U.S. at 213 (noting that the 

phrase "wages paid" has different meanings in different parts of 

the statute); Robinson v. Shell Oil Co., 519 U.S. 337, 343–344 

(1997) (noting that the term "employee" has different meanings in 

different parts of Title VII); Senty v. Bd. of Osteopathic 

Examination & Registration, 594 A.2d 1068, 1071 (Me. 1991) ("We 

must conclude that the Legislature did not intend unreasonable or 

absurd consequences, or results inimical to the public interest, 

and must interpret a statute to avoid such contradictions."); Pub. 

Serv. Co. of N.H. v. Assessors of Town of Berwick, 183 A.2d 205, 

208 (Me. 1962) ("Statutory canons and rules of interpretation are 

helpful, necessary, time-tested and revered but are to be 

judiciously consulted and applied.").

Thus, though the dissent characterizes this reading of 
- 24 -

the statute's plain language as internally "contradictory," we 

disagree. Statutory construction is always contextual, and here 

we are giving the words the meanings derived from their differing 

contexts within the same statutory provision. A narrowly applied 

intent requirement in the context of a limited number of 

affirmative defenses is fully consistent with a liability 

provision that generally bars both intentional and unintentional 

sex-based differences in pay.

The dissent further suggests that our reading of the 

statute impermissibly results in "superfluous" language because 

the liability provision's use of the phrase "discriminate . . . on 

the basis of sex" is "seemingly unnecessar[y]" to accomplish the 

statute's anti-discrimination objective. Acadia similarly argues 

that a reading of the MEPL that excludes a requirement of 

intentional discrimination impermissibly "deletes" that phrase 

from the statute's first sentence. Their view, in other words, is 

that the statute -- if intent is not an element -- could have been 

drafted more simply to say only that employers were prohibited 

from "paying wages to any employee . . . at a rate less than the 

rate at which the employer pays any employee of the opposite sex." 

Me. Stat. tit. 26, § 628. Hence, the statute's express bar against 

discriminating "on the basis of sex" -- if it does not require 

intent -- is arguably redundant. Such redundancy, according to 

Acadia and the dissent, is incompatible with the Law Court's strong 
- 25 -

and consistent rebuke of any statutory readings yielding 

"surplusage." See, e.g., Dubois Livestock, Inc., 174 A.3d at 311.

Acadia and the dissent, however, are drawing a false 

equivalence with these contentions. They seemingly take the view 

that words that are arguably unnecessary in a statute are 

equivalent to the "mere surplusage" disavowed by the Law Court. 

The canon of surplusage does not sweep so broadly. In interpreting 

statutory text, courts instead are instructed to think more 

pragmatically:

If possible, every word and every provision is 

to be given effect (verba cum effectu sunt 

accippienda). None should be ignored. None 

should needlessly be given an interpretation 

that causes it to duplicate another provision 

or to have no consequence. 

Justice Antonin Scalia & Bryan A. Garner, A Dozen Canons of 

Statutory and Constitutional Text Construction, 99 Judicature 2 

(2015) (reciting the "canon of surplusage"). We adhere closely to 

that instruction here.

First, we are neither ignoring nor otherwise rendering 

inconsequential the statute's first use of the phrase 

"discriminate . . . on the basis of sex." Instead, we ascribe to

the phrase definite meaning, explaining its role in defining the 

prohibited discrimination. Cf. Chickasaw Nation v. United States, 

534 U.S. 84, 97-98 (O'Connor, J., dissenting) (noting that 

statutory language is not "mere surplusage," even when redundant, 
- 26 -

if and when "it means something"). Indeed, our dissenting 

colleague acknowledges the "useful function" for the phrase in the 

liability sentence: the words could serve the expressive function 

of "clarifying" that the conduct following the word "by" is "itself 

a type of 'discriminat[ion] . . . on the basis of sex.'" A

"useful" reading -- even if "seemingly unnecessar[y]" or merely 

"clarifying," as minimized by the dissent -- is surely a 

"reasonable construction" that is consistent with Maine precedent. 

See Lowden, 87 A.3d at 697 (stressing that "[n]othing in a statute 

may be treated as surplusage if a reasonable construction applying 

meaning and force is otherwise possible" (quoting State v. Harris, 

730 A.2d 1249, 1251 (Me. 1999))).

Second, and critically, our reading retains the meaning 

of the MEPL's second sentence in its entirety. As we have

explained, if no intent means no liability, an employer could 

assert any reasonable non-sex-based rationale for a differential 

in pay to shield itself from MEPL liability -- creating an 

unwritten catch-all affirmative defense that would be at odds with 

the second sentence's circumscribed exceptions to liability. 

Maine law does not indulge such conflicts. Emphasizing this very 

point, the Law Court recently rejected a proposed reading of the 

word "designated" in a state statute that "would eviscerate" the 

meaning of another phrase in the same statute. See Sanford, 225 
- 27 -

A.3d at 1030-31. In sum, "we will not interpret a statute in such 

a way as to render some words meaningless." Id. at 1031.

We thus reiterate that, as a matter of the statute's 

plain and unambiguous language, the MEPL's liability provision 

does not incorporate an intent element, and its affirmative 

defenses are limited to those specifically enumerated. Although 

not essential for that holding, we find additional support for the

plain meaning of the statute in the evident discord between 

Acadia's asserted reading of the MEPL and comparable statutes, 

precedent, and legislative history. We turn to that confirming 

material.

2. Comparable Statutes & Precedent

As both Mundell and the district court point out, federal 

and state courts have read the phrase "discriminate on the basis 

of" in similarly structured anti-discrimination statutes to not 

require intent. See, e.g., Corning Glass Works, 417 U.S. at 196 

(construing the FEPA); Jancey v. Sch. Comm. of Everett, 658 N.E. 

2d 162, 170 (Mass. 1995) (construing the Massachusetts Equal Pay 

Act); Vt. Hum. Rts. Comm'n v. Vt. Dep't of Corr., 136 A.3d 188, 

195-96 (Vt. 2015) (construing the Vermont equal pay law). Case 

law interpreting this phrase in other statutes thus serves to 

reinforce our reading of the MEPL's plain text and undermines 

Acadia's argument that "discriminate . . . on the basis of" may 

only be reasonably read to mean "because of" sex, thus requiring 
- 28 -

discriminatory intent. 

a. FEPA

We start with the federal analog to the MEPL, the FEPA, 

and the caselaw construing it. See Gordon v. Me. Cent. R.R., 657 

A.2d 785, 786 (Me. 1995) (reasoning that when the Law Court has 

not yet interpreted a statute, "Maine courts may look to analogous 

federal statutes, regulations, and case law for guidance"). When 

the Law Court looks to relevant federal authority, it does so only 

"when the federal and state laws are substantially identical," and 

otherwise construes Maine discrimination laws to give effect to 

any differences. Scamman, 157 A.3d at 233 (quoting Percy v. Allen, 

449 A.2d 337, 342 (Me. 1982)).

Although the 1949 MEPL10 predates the FEPA, the Maine 

10 The final 1949 text read as follows: 

Sec. 40-A. Wage rates for equal work; penalty; 

exception. No employer shall employ any 

female in any occupation within this state for 

salary or wage rates less than the salary or 

wage rates paid by that employer to male 

employees for equal work. However, nothing in 

this section shall prohibit a variation in 

salary or wage rates based upon a difference 

in seniority, experience, training, skill, 

ability, or difference in duties or services 

performed, either regularly or occasionally, 

or difference in the shift or time of the day 

worked, or difference in availability for 

other operation, or other reasonable

differentiation except difference in sex. Any 

individual, association or corporation who 

violates the provisions of this section shall 
- 29 -

Legislature amended the MEPL in 1965 -- shortly after the FEPA's 

passage in 1963 -- with the resulting, refurbished state statute 

noticeably resembling its federal counterpart both in how it 

defined the proscribed conduct and in how it set forth available 

defenses. See Elizabeth J. Wyman, The Unenforced Promise of Equal 

Pay Acts: A National Problem and Possible Solution from Maine, 55 

Me. L. Rev. 23, 26 (2003) (comparing P.L. 1965, ch. 150, U.S.C. 

§ 628 with Equal Pay Act of 1963, Pub. L. No. 88-38, § 3, 77 Stat. 

56, 57 (1963)).11 Since 1965, the MEPL and the FEPA have continued 

to share this same structure as well as the key statutory language

in their liability provisions: employers may not "discriminate" 

"between employees" in the same establishment "on the basis of 

be punished by a fine of not more than $ 200. 

Me. Pub. L. 1949, ch. 262, § 40-A.

11 In relevant part, the FEPA states:

No employer . . . shall discriminate 

. . . between employees on the basis of sex by 

paying wages to employees . . . at a rate less 

than the rate at which he pays wages to 

employees of the opposite sex . . . for equal 

work on jobs the performance of which requires 

equal skill, effort, and responsibility, and 

which are performed under similar working 

conditions, except where such payment is made 

pursuant to (i) a seniority system; (ii) a 

merit system; (iii) a system which measures

earnings by quantity or quality of production; 

or (iv) a differential based on any other 

factor other than sex . . . .

29 U.S.C. § 206(d).
- 30 -

sex" "by" paying lower wages to "employees of the opposite sex" 

for work that is comparable (under the Maine law) or equal (under 

the federal law), unless an enumerated exception applies. Compare

Me. Stat. tit. 26, § 628 with 29 U.S.C. § 206(2)(1); see also

Wyman, supra, at 42-43. 

It has long been established that the FEPA does not 

require any showing of intent. See, e.g., Corning Glass Works, 

417 U.S. at 196. As the MEPL "generally track[s]" the FEPA's 

liability provision, the case law interpreting the FEPA

"provide[s] significant guidance in the construction" of the state 

law. See Me. Hum. Rts. Comm'n v. City of Auburn, 408 A.2d 1253, 

1261 (Me. 1979) (quoting Me. Hum. Rts. Comm'n v. Local 1361, Me., 

383 A.2d 369, 375 (Me. 1978)). 

What is more, the textual differences between the MEPL 

and the FEPA evince an intent to make the MEPL more protective 

than its federal counterpart, not less so. The FEPA uses an 

"equal" work standard while the MEPL applies to "comparable" work

-- a more capacious concept.12 Given this broader protection for

employees in the MEPL, it would be particularly odd to read an 

intent requirement that does not exist in the FEPA into the MEPL's 

12 The parties agree that the comparable work standard is 

broader than the equal work standard. Massachusetts courts have 

also been clear that the comparable work standard in that state's 

equal pay law is more protective than the equal pay standard in 

the FEPA. See Jancey, 658 N.E.2d at 167; Wyman, supra, at 42-43.
- 31 -

liability provision. 

The dissent contends that there are simply too many 

differences between the substance and structure of the two statutes 

for the FEPA, and precedents interpreting the statute, to be seen 

as comparable and instructive in our interpretation of the MEPL's 

plain text. In particular, the dissent draws significance from 

the fact that the MEPL's liability provision and its affirmative 

defense provision are separated into two distinct sentences, 

whereas the FEPA's are combined into one sentence separated by the 

word "except." The dissent also points to the MEPL's duplicate 

use of the phrase "discriminate . . . on the basis of sex" compared 

to the FEPA's single use.

But state discrimination laws need not be perfectly 

congruent with federal counterparts for courts to look to those 

federal statutes for guidance -- particularly when the state 

statute, as is the case here, "generally track[s]" the federal 

analogue. City of Auburn, 408 A.2d at 1261. Moreover, departing 

from the settled understanding that the FEPA does not contain an 

intent requirement to conclude that intent is required for 

liability under the MEPL would give notably different meanings to 

the very similar liability provisions in the state and federal 

laws. The dissent's proposed reading therefore creates a large 

gap between the two statutes in disregard of their textual 

parallels.
- 32 -

By contrast, our reading both preserves the equivalence

between the state and federal statutes' substantive liability 

provisions and recognizes the substantial differences in their

affirmative defense provisions. Although the FEPA, like the MEPL,

enumerates several specific affirmative defenses, the federal 

statute, unlike the MEPL, goes on to provide a catch-all 

affirmative defense ("a differential based on any other factor 

other than sex," 29 U.S.C. § 206(d)). In addition, as we have 

explained, the MEPL qualifies its enumerated affirmative defenses 

with the requirement that they not stem from sex-based 

discrimination, whereas the FEPA does not include that limitation. 

Compare id., with Me. Stat. tit. 26, § 628.

The significance we draw from the equivalence between 

the state and federal statutes' nearly identical liability 

provisions is not diminished by the differences in their handling 

of affirmative defenses. By contrast, Acadia's reading of the 

MEPL, echoed by the dissent, reads the MEPL and FEPA's affirmative 

defense provisions to have the same scope, implausibly ignoring

the two statutes' obvious textual differences.13

13 Our dissenting colleague accuses us of overstating the 

influence of the FEPA on the MEPL's language, suggesting that we 

are overreaching when we assign meaning to the differences between 

the federal and state laws as well as to their similarities. To 

the contrary, we are simply reading text, giving indisputable 

meaning to similar language in the liability provisions and 

dissimilar language in the affirmative defense provisions.
- 33 -

b. Comparable State Pay-Equity Statutes

Our reading also is reinforced strongly by analogous 

pay-equity statutes from other states. Indeed, our holding that 

discriminatory intent is not a required element of viable wage 

discrimination claims in Maine conforms with the consensus view of

state and federal courts throughout the country.

Nearly thirty years ago, for example, the Massachusetts 

Supreme Judicial Court ("SJC") read the Massachusetts Equal Pay 

Act ("MEPA") to not require proof of an employer's discriminatory 

intent to establish liability. Like the MEPL, the MEPA has a 

liability provision followed by an affirmative defenses provision. 

The MEPA's liability provision similarly prohibits employers from 

"discriminat[ing] . . . in the payment of wages as between the 

sexes" and "pay[ing] any person [a lesser wage] than the rates

paid to employees of the opposite sex for [like or comparable 

work]." See Jancey, 658 N.E.2d at 165-66 (quoting Mass. Gen. Laws 

ch. 149, § 105A (1994)).14 Construing this language, the SJC held 

that "the plain language of the statute does not require a finding 

14 According to the Jancey court, at that time, the 1994 MEPA 

contained just one enumerated affirmative defense (seniority

systems) but had no enumerated "catch-all" affirmative defense. 

The present-day MEPA by contrast contains numerous enumerated 

affirmative defenses, including seniority and merit systems, but 

continues to not incorporate into its plain language that an 

employer can permissibly assert an any-reasonable-factor-otherthan-sex catch-all affirmative defense. Compare Jancey, 658 

N.E.2d at 170, with Mass. Gen. Laws ch. 149, § 105A (2018).
- 34 -

of purposeful discrimination." Id. at 170.15

Applying similar logic to that of the SJC, a wide variety 

of state courts have likewise read their own pay-equity laws --

with liability provisions akin to (even if not identical to) the 

MEPL and the FEPA in both wording and structure -- to not require 

proof of an employer's discriminatory intent to establish 

liability. See, e.g., Vt. Hum. Rts. Comm'n, 136 A.3d at 196

(discriminatory intent is not a required element of state equal 

pay statute); Green v. Par Pools, Inc., 3 Cal. Rptr. 3d 844, 847-

49 (Cal. Ct. App. 2003) (same); Kolstad v. Fairway Foods, Inc., 

457 N.W.2d 728, 734 (Minn. Ct. App. 1990) (same). Several more

state courts have held that claims brought under their own payequity statute ought to be analyzed identically to FEPA claims --

which, as discussed, has no malintent requirement -- despite 

various differences in phrasing in their respective liability or 

15 Just as Acadia does here, the Massachusetts employer in 

Jancey had contended that a MEPA violation should include an intent 

element even though the FEPA does not. The employer argued that

"the lack of an intent requirement in [the] FEPA is equitable 

because [the FEPA] contains several affirmative defenses, 

including a broad catch-all defense," whereas the MEPA contains 

only one affirmative defense. Jancey, 658 N.E.2d at 170. Hence, 

to be equitable, "the [Massachusetts] Legislature" must have 

"intended to restrict the [MEPA] to purposeful acts." Id. 

Rejecting the argument that an intent element should be inferred 

"based on the dearth of affirmative defenses [in the MEPA]," the 

SJC instead held that "the statute on its face creates a form of 

strict liability" whenever an employer pays "members of one sex 

. . . at a lower rate than members of the opposite sex for work of 

like or comparable character." Id.
- 35 -

affirmative defense provisions. See, e.g., Paris-Purtle v. State, 

No. X10UWYCV146025212, 2015 WL 5622517, at *4 (Conn. Super. Ct. 

Aug. 14, 2015) (state pay act construed like the FEPA); Adams v. 

Univ. of Wash., 722 P.2d 74, 77 (Wash. 1986) (same); Hudon v. W. 

Valley Sch. Dist. No. 208, 97 P.3d 39, 43 (Wash. Ct. App. 2004) 

(same). Federal courts have also uniformly read pay-equity 

statutes from a variety of states to not require discriminatory 

intent. See, e.g., Spiewak v. Wyndham, Inc., No. 20-13643, 2023 

WL 869309, at *5 (D.N.J. Jan. 26, 2023); Reynolds v. Stovall, No. 

11-04006, 2012 WL 1202026, at *6 (W.D. Ark. Apr. 10, 2012); 

Tolliver v. Child.'s Home-Chambliss Shelter, 784 F. Supp. 2d 893, 

903-904 (E.D. Tenn. 2011); Grudier v. Hendel's, Inc., No. 

308CV369JBA, 2008 WL 1924971, at *1 (D. Conn. Apr. 30, 2008).

Like the district court, we find persuasive and 

instructive this uniformity of state and federal court 

interpretation of a vast array of state statutes -- many of which 

are as singular in their wording and structure as the MEPL. On 

the other hand, we have found only one state16 that seemingly

16 Louisiana has both an "Intentional Discrimination in 

Employment" statute -- prohibiting employers from "[i]ntentionally

pay[ing] wages to an employee at a rate less than that of another 

employee of the opposite sex for equal work on jobs in which their 

performance requires equal skill, effort, and responsibility and 

which are performed under similar working conditions," La. Stat. 

Ann. § 23.332(A)(3) (emphasis added) -- as well as the state's 

Equal Pay for Women Act ("LEPWA"), a pay-equity statute that 

closely mirrors the FEPA and has no intent requirement. See id.
- 36 -

requires an employee to prove an employer acted with discriminatory 

intent to prevail on a state unequal wage claim: Oklahoma. In 

notable contrast to the MEPL, Oklahoma's equal pay statute compels

such an interpretation with unambiguous statutory language to this 

effect -- i.e., it is illegal to "willfully pay" different wages 

to men and women. See Okla. Stat. Ann. tit. 40, § 198.1 (2023)

("It shall be unlawful for any employer within the State of 

Oklahoma to willfully pay wages to women employees at a rate less 

than the rate at which he pays any employee of the opposite sex 

for comparable work on jobs which have comparable requirements 

relating to skill, effort and responsibility") (emphasis added).17

Yet, in the face of all this evidence to the contrary, 

the dissent proclaims that our interpretation of the MEPL's plain 

language births "a far more sweeping prohibition" than "most payequity statutes in the country." To support this assertion, the 

dissent argues that our citation to states stretching from

Massachusetts to California, and Arkansas to Minnesota, are inapt 

for a hodgepodge of unconvincing reasons, mostly nitpicking 

differences in wording in each state's statutory language as 

§ 23:664. It does not appear that any courts have interpreted the 

LEPWA or otherwise reconciled the two statutes.

17 There do not appear to be published court decisions 

outlining or otherwise analyzing the required elements of 

Oklahoma's pay-equity statute.
- 37 -

compared to the MEPL.

Citing to a table compiled by "The Pay Equity Project," 

for example, the dissent suggests that states not requiring proof 

of discriminatory intent to establish equal-pay-statute liability 

typically endeavor to offer balance through the concomitant 

provision of a "catch-all" affirmative defense like that found in 

the FEPA. But this sweeping observation by the dissent is not 

accurate. Nearly a dozen states do not provide for a "reasonable 

factor other than sex" affirmative defense in their respective

pay-equity statutes.18 Yet, to our knowledge, no court has read 

any one of these comparable state statutes to require the element 

of discriminatory intent to establish liability.

The dissent does concede that three states have equalpay statutes containing language it deems similar enough to the 

MEPL's "discriminate . . . on the basis of sex" language and 

structure to be analogous to Maine's law: Idaho, South Dakota, and 

Kentucky. The dissent insists, however, that there is "literally" 

no way to discern how courts in Idaho, South Dakota, and Kentucky 

18 See Pay Equity Project, Fifty-State Pay Equity Law Summary 

(Nov. 10, 2021), https://www.law.uci.edu/centers/pay-equityproject/images/50-state-law-chart.pdf [https://perma.cc/D979-

DG2C] (captured December 22, 2023) (describing each state statute 

and its employer defenses to pay-equity law violations, including 

the following states with no catch-all affirmative defense: 

Colorado, Idaho, Maine, Massachusetts, Montana, New Mexico, 

Oregon, South Dakota, Texas, Utah, and Wisconsin).
- 38 -

might interpret their own state's pay-equity statute. But, in 

fact, state and federal courts in Idaho have signaled that Idaho's 

statute also does not require a showing of discriminatory intent. 

See Perkins v. U.S. Transformer W., 974 P.2d 73, 75, 78 (Idaho 

1999) (allowing jury verdict to stand finding employer liable under 

the state’s pay-equity statute for paying different wages to male 

and female employees, but not finding the employer liable for 

"willful" discrimination under Idaho’s analogue to Title VII), 

overruled on other grounds by Poole v. Davis, 288 P.3d 821, 825 

n.1 (Idaho 2012); Johnson v. Canyon Cnty., No. 19-364, 2020 WL 

5077731, at *2-3 (D. Idaho Aug. 27, 2020) (noting that the parties 

agreed that Idaho's pay-equity statute is to be construed in 

lockstep with the FEPA). Similarly, by "applying federal 

standards" to "wage discrimination claims arising under" 

Kentucky's pay-equity statute, federal courts in Kentucky have not 

required plaintiffs raising state law pay discrimination claims to 

show intent. Johnson v. Pennyrile Allied Cmty. Servs., No. 20-

071, 2022 WL 1004873, at *15 (W.D. Ky. Apr. 4, 2022); accord Perry

v. AutoZoners, LLC, 954 F. Supp. 2d 599, 607 (W.D. Ky. 2013) 

("Kentucky courts analyze disparate wage claims under federal law 

standards."); Wiseman v. Whayne Supply Co., 359 F. Supp. 2d 579, 

588 (W.D. Ky. 2004), aff'd, 123 F. App'x 699 (6th Cir. 2005) 

(citing elements of a FEPA claim as applicable to Kentucky's payequity statute). 
- 39 -

The dissent goes on to insist, oddly, that Washington’s 

pay-equity statute employs language that "invite[s] a requirement 

to prove such intent" to establish liability. See Wash. Rev. Code 

§ 49.58.020 ("Any employer . . . who discriminates in any way in 

providing compensation based on gender between similarly employed 

employees . . . is guilty of a misdemeanor.").19 In fact, 

Washington courts have recognized explicitly that the state's payequity statute is to be interpreted in lockstep with the FEPA --

strongly suggesting that Washington’s statute does not require an 

employee to establish discriminatory intent.20 See Adams, 722 P.2d 

19 As recognized by the dissent, despite a liability provision 

similar to that of the MEPL, the Washington statute also differs 

from the MEPL in various respects -- most notably, it contains, in 

addition to an enumerated list of exceptions to liability, an 

explicit catch-all affirmative defense.

20 Indeed, in this regard, Washington hardly stands alone. As 

detailed above, a plethora of state pay-equity statutes have been 

interpreted by both state and federal courts just like the FEPA -

- including, for example, both Connecticut, Conn. Gen. Stat. Ann. 

§ 31-75(a), and New Jersey, N.J. Stat. Ann. § 34:11-56.2. See

Fairchild v. Quinnipiac Univ., 16 F. Supp. 3d 89, 96 (D. Conn. 

2014) ("Claims brought pursuant to the Connecticut Equal Pay Act 

[("CEPA")] are analyzed under the same standard as the [FEPA]." 

(quoting Morse v. Pratt & Whitney, No. 10-01126, 2013 WL 255788, 

at *11 (D. Conn. Jan. 23, 2013))); Paris-Purtle, 2015 WL 5622517, 

at *4 (summarizing that the Fairchild court "set forth the standard 

under which CEPA claims are viewed for legal sufficiency," 

including Fairchild's description that CEPA claims are analyzed 

identically to FEPA claims); Grigoletti v. Ortho Pharm. Corp., 570 

A.2d 903, 911 (N.J. 1990) (describing that the New Jersey Equal 

Pay Act ("NJEPA") has "remained dormant," but "exemplifies an 

enduring legislative policy that is protective of the interest and 

status of women in the employment setting"); Spiewak, 2023 WL 

869309, at *5 (recognizing that "courts considering NJEPA claims 

analyze such claims under the framework of the federal EPA," and 
- 40 -

at 77 (noting that a prior version of Washington's equal pay act 

codified at Wash. Rev. Code § 49.12.175 was "virtually identical 

to the federal Equal Pay Act" and relying on FEPA cases to 

interpret the Washington statute as a matter of first impression); 

Hudon, 97 P.3d at 43 (summarizing that "Washington's equal pay act 

. . . is virtually identical to its federal counterpart," such 

that "[d]ecisions interpreting the federal act may then be 

helpful," and the court must "construe it to fulfill the underlying 

purpose of the legislature, which was to sweep away outmoded 

inequities and assure women equal pay for equal work" (citations 

omitted)); Gardner v. Wells Fargo Bank, NA, No. 19-0207, 2021 WL 

2931341, at *6 (E.D. Wash. July 12, 2021) (explaining that under 

both the Washington equal pay statute and the FEPA, "[a] plaintiff 

must demonstrate a prima facie case by showing men and women 

received different pay for equal work," without any reference to 

an intent requirement).

Moreover, the dissent itself has not identified a single

federal or state court decision construing any state pay-equity

law to require intent to establish liability. Acadia likewise 

made no effort to do so -- despite the district court's direct 

invitation for supplemental authority to support Acadia's 

interpretation of the MEPL's statutory text. Given this remarkable 

finding that the plaintiff stated a prima facie case under the 

NJEPA without showing intent).
- 41 -

consistency across state and federal court holdings, there seems 

little reason to suspect that state courts in South Dakota or 

Kentucky -- the other states with pay-equity statutes that the 

dissent considers similar enough to the MEPL -- would have any 

reason to reach a different conclusion. 

In short, as far as we can tell, no pay-equity law, 

federal or state, has ever been construed by a court to require 

discriminatory intent to establish liability. Declining to read 

the MEPL to contain an unwritten intent element is hardly 

aggressive, somehow rendering Maine's statute "far more sweeping" 

than other pay-equity statutes in the country. It is, to the 

contrary, wholly congruent with overwhelming precedent. Indeed, 

to require intent would make Maine's equal pay statute the nation's 

distinct outlier.

3. Legislative History

We recognize that, because we conclude that the MEPL's 

text is clear, Maine law advises against examining the statute's 

legislative history. See, e.g., Scamman, 157 A.3d at 229 (holding 

that courts should only "look beyond [a statute's text]" to examine 

"legislative history" "if the plain language . . . is ambiguous"). 

Nonetheless, given the parties' discussion of legislative history 

at oral argument, and the district court's discussion of that 

factor in its analysis, we address it briefly. That history, scant 

though it is, further accords with our reading of the MEPL's plain 
- 42 -

text and undercuts Acadia's position. 

As discussed by the district court, the original MEPL 

was passed by the Maine Legislature in 1949 without a purpose 

statement, a record of debate in the House or Senate, or committee 

commentary. See Mundell, 585 F. Supp. at 94-95; Wyman, supra, at

26. That law, as noted, included an equal work standard and 

several affirmative defenses, including a catch-all defense 

allowing a defendant to avoid liability upon a showing that the 

wage differentials were due to any "other reasonable 

differentiation except difference in sex." See Me. Pub. L. 1949, 

ch. 262, § 40-A.21

In 1963, Congress enacted the FEPA, which included an 

equal pay standard, just like the 1949 MEPL, and also included the

catch-all affirmative defense that we have described: there would 

be no liability if the pay differential was "based on any other 

factor other than sex." Equal Pay Act of 1963, Pub. L. No. 88-

38, 77 Stat. 56; 29 U.S.C. § 206(d). As noted above, two years 

after Congress adopted the FEPA, the Maine Legislature revised the 

MEPL and adopted the language at issue in this case. 

The initial version of the revised MEPL introduced in 

the Maine Senate would have amended the first sentence of the 1949 

21 See also supra note 10, and accompanying text.
- 43 -

MEPL to read: "[n]o employer shall employ any female in any 

occupation within this State for salary or wage rates less than 

the salary or wage rates paid by that employer to male employees 

for equal or comparable work." L.D. 1189, 102d Leg. (Me. 1965). 

The bill then underwent revisions. There is no record explaining 

the reason for the revisions, and the bill was enacted again 

without a purpose statement, commentary, or debate. See Wyman, 

supra, at 28. However, the amendment's timing and the resemblance 

between the revised MEPL and the FEPA suggest that "the Legislature 

was reacting to passage of the federal Equal Pay Act two years 

earlier." Id. at 28-29. 

The likely relationship between the adoption of the FEPA 

and the amended MEPL is reflected in both the statutes' 

similarities and their differences. As detailed above, see supra

Section II.B.2.a, the final text of the 1965 MEPL closely mirrors 

the structure of the FEPA, suggesting that the Maine Legislature

took cues from the federal provision. Those similarities, however, 

also suggest that the MEPL's departures from the FEPA are 

meaningful: (1) replacing the FEPA's "equal work" standard with a 

less stringent "comparable work" standard; (2) opting not to 

include FEPA's catch-all defense; and, (3) unlike the FEPA, 

qualifying its three defenses to ensure that they are not pretext 

for discriminatory animus.

In Scamman, 157 A.3d at 232, addressing another Maine 
- 44 -

anti-discrimination statute, the Law Court determined that because 

the catch-all "reasonable-factor-other-than age" language "already 

existed in the ADEA when the" Maine Human Rights Act ("MHRA") "was 

enacted," the fact that such language was "absent from the MHRA 

sheds significant[] . . . light on the Legislature's intent." 

Hence, we are following Maine precedent by looking to the almost 

identical liability provision of the FEPA for guidance on how to 

read the MEPL's liability provision and giving effect to the 

differences between the two statutes' affirmative defenses 

provisions.22

It is also significant that, over the next several 

decades, the Maine Legislature neither revised the liability 

provision to clarify that intent is required nor reinstated the 

catch-all defense from the pre-1965 iterations of the MEPL -- even 

after the FEPA and similarly worded state pay-equity laws were 

interpreted by courts not to require a discriminatory motive. See,

e.g., Corning Glass Works, 417 U.S. at 196; Jancey, 658 N.E.2d at 

22 To be sure, the Scamman court stressed that the affirmative 

defense provisions of the MHRA and the ADEA were not "substantively 

identical," because "[u]nlike the ADEA, the MHRA does not contain" 

a catch-all "reasonable factor other than age" affirmative 

defense. Scamman, 157 A.3d at 233. The Scamman Court therefore 

reasonably observed, as the dissent highlights, that "neither the 

text of the [federal statute] nor the federal cases applying that 

text provide[d] helpful guidance for interpreting" the affirmative 

defense provision of the MHRA. Id. But this aspect of the Scamman

precedent hardly undermines our conclusion that the FEPA, and 

interpretative case law, are instructive in analyzing the 

substantively similar liability provision of the MEPL. 
- 45 -

170; Vt. Hum. Rts. Comm'n, 136 A.3d at 196. In the half-century 

since the 1972 Corning Glass Works decision -- when the FEPA's 

identical "discriminate . . . on the basis of sex" language was 

read to prohibit certain pay disparities even absent proven

discriminatory intent by the employer, 417 U.S. at 196 -- the Maine 

Legislature has revised or supplemented the MEPL seven times, each 

time making it more effective at remedying gaps in pay between men 

and women. These legislative acts did not revisit the liability 

or affirmative defense provisions of the 1965 text but rather 

altered a penalties provision,23 added a new paragraph to the MEPL 

that established Equal Pay Day as a holiday,24 required the 

Department of Labor to annually report on progress made within the 

state to comply with the MEPL,25 directed the Department of Labor 

to adopt rules in consultation with the Maine Human Rights 

Commission to improve compliance with the MEPL,26 mandated that 

23 Me. Pub. L. 1983, ch. 652, § 4. The last sentence of the 

MEPL had at one point imposed a $200 fine on employers who violated 

the equal pay law. This was deleted in 1983. At the same time, 

the Maine Legislature amended § 626-A, governing "Penalties," to 

provide that violation of certain enumerated labor laws, including 

the MEPL, would result in a fine of "not less than $100 or more 

than $500 for each violation." Id. § 2. The current version of 

the Penalties section provides that an employer who violates the 

MEPL "is subject to a forfeiture of not less than $100 nor more 

than $500 for each violation." Me. Stat. tit. 26, § 626-A.

24 Me. Stat. tit. 1, § 145 (Supp. 2001).

25 Me. Pub. L. 2001, ch. 304, § 2.

26 L.D. 329, 18th Leg., 1st Reg. Sess. (Me. 1997).
- 46 -

employers allow employees to disclose their own wages or inquire 

about the wages of others in order to enforce the MEPL,27 and passed 

§ 628-A to prohibit employers from inquiring about compensation 

history when hiring a prospective employee.28 Indeed, each time 

the Maine Legislature has opted to revisit the wording of the MEPL

over the years, it has consistently made legislative choices to 

ensure that the state law would be more protective of the rights 

of employees than its federal counterpart. 

In fact, in 2023 the Maine Legislature again revisited 

the language of the MEPL, revising it significantly, this time to 

add race as an additional covered group under the MEPL. See Me. 

Pub. L. 2023, ch. 266. Importantly, this legislative decision 

occurred well after the district court issued its 2022 decision 

holding that liability under the MEPL does not depend on a showing 

of intent. We, along with the Law Court, presume that the 

Legislature enacted that revision to the MEPL with knowledge of 

27 Me. Pub. L. 2009, ch. 29, § 1.

28 Me. Rev. Stat. tit. 26, § 628-A. Of particular relevance, 

the Maine Legislature's 2019 statutory provision included the 

following language: "The Legislature finds that despite 

requirements regarding equal pay having been a part of the laws of 

Maine since 1965, wage inequality is an ongoing issue in the State. 

Wage inequality causes substantial harm to the citizens and to the 

economy of the State." The new statutory language then makes clear 

that the Legislature was banning employers from inquiring about 

past compensation because such a practice "directly perpetuates [] 

wage inequality."
- 47 -

the district court's decision. See, e.g., Blier v. Inhabitants of 

Town of Fort Kent, 273 A.2d 732, 734 (Me. 1971) (recognizing that 

the Maine Legislature is presumed to enact laws "in view of, and 

with reference to, existing laws and judicial decisions" (cleaned 

up)). Hence, we read significance into the Maine Legislature's 

apparent acceptance of the district court's reading of the plain 

language of the MEPL. 

Against all this evidence of a legislative determination 

to advance the "equal pay for comparable work" objectives of the 

MEPL, Acadia puts forward only one legislative history argument. 

It asserts that the Legislature appears to have made a tradeoff in 

1965 in which it eliminated the catch-all defense from the 

affirmative defenses provision and replaced it with an intent 

requirement in the liability provision by using the phrase 

"discriminate . . . on the basis of sex."

Notably, Acadia presented this argument for the first 

time at oral argument, and we therefore are entitled to ignore it 

as waived.29 See United States v. Leoner-Aguirre, 939 F.3d 310, 

29 Even though Acadia only raised this point briefly at oral 

argument, the dissent eagerly embraces this tradeoff argument and 

elaborates upon it. In doing so, the dissent, without citation to 

any authority, and without any attempt to offer a rationale, 

contends that the ordinary principles of appellate waiver should 

not bear their usual weight in this case because we are predicting 

how the Law Court would construe the MEPL. Why does that context 

matter? The dissent never tells us. We are given no coherent 

reason to diverge from the ordinary application of our waiver 

jurisprudence. See United States v. Zannino, 895 F.2d 1, 17 (1st 
- 48 -

319 (1st Cir. 2019). Nevertheless, for the sake of completeness, 

we will address it. Acadia's theory regarding the Maine 

Legislature's motive is pure speculation. Acadia identifies not 

a scintilla of legislative history or commentary to support its 

argument that the Legislature in 1965, concerned about language 

changes to the MEPL that strengthened its equal pay objectives, 

decided to compensate for that strengthening by introducing an 

intentional discrimination requirement that would simultaneously 

circumscribe the law's protective purpose. Acadia cannot use such 

speculation to create a statutory ambiguity that is simply not 

there. As the Supreme Court has said, "[l]egislative history 

. . . is meant to clear up ambiguity, not create it." Milner v. 

Dep't of Navy, 562 U.S. 562, 574 (2011). 

In sum, all reliable indicia of legislative history show 

that the Maine Legislature, by means of the MEPL, sought to afford 

protections greater than those offered by the FEPA. 

Cir. 1990) (making clear that waiver exists to stop attorneys from 

"leaving the court to do counsel's work, create the ossature for 

the argument," or "put flesh on [the] bones" of weakly made 

points). Furthermore, it is manifestly unfair that Mundell has 

not had an opportunity to respond to the dissent's hypothesized 

arguments largely benefitting Acadia. See Day v. McDonough, 547 

U.S. 198, 210, (2006) ("Of course, before acting on its own 

initiative, a court must accord the parties fair notice and an 

opportunity to present their positions."); Tandon v. Newsom, 992 

F.3d 916, 928 (9th Cir.), disapproved on other grounds, 141 S. Ct. 

1294 (2021) (noting that because "plaintiffs have not made [the 

dissent's] argument, and the State has had no reason or opportunity 

to respond to them, we decline to express an opinion on them now, 

let alone rely on them to grant [the requested relief]").
- 49 -

4. Policy Implications

Finally, Acadia emphasizes two policy concerns that it 

contends arise from the district court's plain text reading of the 

MEPL. Acadia claims the provision would (1) diminish Maine's 

ability to attract and retain a skilled and diverse workforce and 

(2) impose a significant burden on employers by requiring them to 

track compensation differentials among their employees. 

Acadia's policy arguments are beside the point. The 

Supreme Court has stated that "[w]hen the express terms of a 

statute give us one answer and extratextual considerations suggest 

another, it's no contest." Bostock v. Clayton Cnty., 140 S. Ct. 

1731, 1737 (2020); see also Whitney v. Wal-Mart Stores, Inc., 895 

A.2d 309, 315 (Me. 2006) (reasoning that policy arguments cannot 

override the law as written because "legislative policy arguments 

are more appropriately left to the executive and the Legislature 

to resolve").

In any event, we agree with the district court that 

reading the MEPL to lack an intent requirement does not lead to 

absurd policy results. As to flexibility in hiring, the MEPL does 

not close the door for an employer to establish legitimate pay 

disparities between men and women. There are preliminary showings 

that must be made before a claimant can invoke the protective 

purpose of the MEPL. The MEPL only applies where employees perform 

"comparable work on jobs that have comparable requirements 
- 50 -

relating to skill, effort[,] and responsibility." See Me. Stat. 

tit. 26, § 628. And even then, the statute creates three

affirmative defenses for pay differentials. See id. 

As for asking employers to track pay differentials, we 

acknowledge that the plain reading of the MEPL may require 

employers to monitor how employees of different sexes are paid for 

comparable work and to articulate one of the authorized reasons 

provided by the statute for any disparity. These are hardly absurd 

requirements. Employers typically are in a better position than 

employees to monitor how employees doing comparable work are being 

paid. This case illustrates that very point. Mundell worked for 

Acadia for more than two years before she learned that she was 

being paid less than her male colleagues.

C. The MEPL & Treble Damages

The parties also dispute whether Mundell is entitled to 

treble damages for the unpaid wages that accrued while she was 

paid less than her male colleagues in violation of the MEPL. 

Section 626-A of title 26 sets out the penalties for violations of 

the MEPL and certain other enumerated provisions of Maine's wage 

laws. Although the provision applies by its terms to MEPL claims, 

Acadia argues that it does not provide for treble damages for such 

claims.30 The disputed statutory language reads in full:

30 Notably, the MEPL does not have its own penalty provision, 

precluding any argument that the MEPL might displace section 626-
- 51 -

Whoever violates any of the provisions of 

section 600-A, sections 621-A to 623 or 

section 626, 628, 628-A, 629 or 629-B is 

subject to a forfeiture of not less than $100 

nor more than $500 for each violation.

Any employer is liable to the employee or 

employees for the amount of unpaid wages and 

health benefits. Upon a judgment being 

rendered in favor of any employee or 

employees, in any action brought to recover 

unpaid wages or health benefits under this 

subchapter, such judgment includes, in 

addition to the unpaid wages or health 

benefits adjudged to be due, a reasonable rate 

of interest, costs of suit including a 

reasonable attorney's fee, and an additional 

amount equal to twice the amount of unpaid 

wages as liquidated damages.

Me. Stat. tit. 26, § 626-A (emphases added). This text authorizes 

two possible penalties: "forfeiture of not less than $100 nor more 

than $500 for each violation" and treble damages for any "unpaid 

wages or health benefits adjudged to be due." 

The treble damages penalty is outlined in the second 

paragraph of section 626-A. The Law Court has made clear that the 

treble damages paragraph applies to violations of any law listed 

in section 626-A to the extent that the employer is liable for 

"unpaid wages," because removing the possibility of treble damages 

A's statutory penalties provision. See Me. Stat. tit. 26, § 628; 

see also Beckwith v. United Parcel Serv., Inc., 889 F.2d 344, 350–

51 (1st Cir. 1989) (considering, but ultimately rejecting, the 

argument that section 626-A penalties are displaced by more 

specific remedies listed under Me. Stat. tit. 26, § 629); Noll v. 

Flowers Foods, Inc., No. 1:15-cv-00493-LEW, 2021 WL 904859, at *5 

(D. Me. Mar. 9, 2021) (same).
- 52 -

"would strip" Maine's wage laws "of [their] effectiveness." Cooper

v. Springfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993). 

The Law Court has further clarified that the term "unpaid wages" 

includes instances in which an employee has not been "paid in full" 

-- as well as instances in which an employee has been denied pay 

entirely. In re Wage Payment Litig., 759 A.2d 217, 223-24 (Me. 

2000).

Therefore, if a law is listed in section 626-A -- as is 

the MEPL -- and a violation of that law results in unpaid wages, 

the treble damages remedy is available. The MEPL targets a 

particular type of wage violation, and the damages from a violation

necessarily include compensation for unpaid wages. We thus think 

it obvious that litigants who prove a violation of the MEPL are 

entitled to the remedies provided in the second paragraph of 

section 626-A. See Beckwith v. United Parcel Serv., 889 F.2d 344, 

350–51 (1st Cir. 1989) (suggesting that "an employer who violates 

the equal pay requirements in [the MEPL] could be required to pay 

the affected employees liquidated damages and attorney's fees as 

provided by § 626–A").

Acadia raises several unpersuasive counterarguments to 

this construction of section 626-A. First, Acadia maintains that 

a MEPL violation results in damages, not unpaid wages, because it 

is a statute focused on intentional discrimination rather than on 

wage disparity. But we have already explained that the MEPL is 
- 53 -

not focused on intentional discrimination; rather, it seeks to 

remedy pay disparities between men and women for comparable work. 

Second, Acadia argues that an employee cannot pursue a 

claim for failure to pay wages in lieu of or in addition to pursuing 

a claim for discrimination. But courts have long established that 

a party can suffer employment discrimination because of a wage 

disparity and bring two claims: one for damages under a 

discrimination statute and another to recover unlawfully withheld 

wages under a wage statute. See, e.g., Rodriguez v. Smithkline 

Beecham, 224 F.3d 1, 5-9 (1st Cir. 2000) (considering both a Title 

VII wage discrimination claim for damages and a FEPA claim for 

unpaid wages brought by the same employee). 

Third, Acadia argues that Mundell does not have a claim 

for unpaid wages because Acadia paid Mundell "what it had agreed 

to pay her throughout her tenure." This argument fails because it 

is inconceivable that an agreement by an employer to pay a wage 

that is contrary to Maine law could override the requirements of 

that law. 

Fourth, Acadia asserts that the MEPL is primarily about 

voluntary compliance because the Maine Department of Labor, at the 

instruction of the Legislature, crafted regulations to bring about 

greater voluntary compliance with the MEPL. But that legislative 

act did not purport to replace the option of enforcing the MEPL 

through a civil action; rather, as we noted in our review of the 
- 54 -

legislative history, the Legislature simply sought to improve 

compliance with the MEPL. 

Finally, Acadia contends that it would be "absurd" to 

allow an employee to recover treble damages because such a large 

award "would be financially devasting for the employer and provide 

a windfall to the employee." But courts have repeatedly emphasized 

that Maine wage laws are "remedial" and have a "broadly protective 

purpose," and thus have rejected claims that treble damages for 

violations of them are punitive. Giguere v. Port Res. Inc., 927 

F.3d 43, 51 (1st Cir. 2019) (quoting Bisbing v. Me. Med. Ctr., 820 

A.2d 582, 584-85 (Me. 2003)). If treble damages for violations of 

Maine's wage laws serve the law's "broadly protective purpose," it 

is difficult to understand why treble damages for violations of 

Maine's equal pay provision would be absurd. 

Thus, we, like the district court, conclude that 

section 626-A entitles Mundell to "unpaid wages" for the time that 

she was unlawfully underpaid by Acadia, plus "a reasonable rate of 

interest, costs of suit including a reasonable attorney's fee, and 

an additional amount equal to twice the amount of unpaid wages as 

liquidated damages." Me. Stat. tit. 26, § 626-A. 

III.

For the foregoing reasons, we affirm the district 

court's grant of Mundell's partial motion for summary judgment

against Acadia under the liability provision of the MEPL, affirm 
- 55 -

the damages award in the amount of $180,955.90, and deny Acadia's 

motion to certify questions about the MEPL and title 26, § 626-A 

to the Law Court.

So ordered.

- Dissenting Opinion Follows -
- 56 -

BARRON, Chief Judge, dissenting. Maine's courts presume 

that the state's statutes use the same words to mean the same 

thing. The majority nonetheless holds that the Maine Equal Pay 

Law ("MEPL"), Me. Stat. tit. 26, § 628, is the unusual Maine 

statute that uses the same words to mean different things -- and 

in successive sentences, no less.31 As a result, the majority 

decides for itself that the MEPL -- which no Maine court has yet 

construed -- establishes a far more sweeping prohibition than 

either its federal counterpart, the Federal Equal Pay Act ("FEPA"), 

29 U.S.C. § 206(d), or most pay-equity statutes in the country. 

See Pay Equity Project, Fifty-State Pay Equity Law Summary (Nov. 

10, 2021), https://perma.cc/D979-DG2C. 

Maine is, of course, free to enact a pay-equity measure 

as sweeping as the majority holds that Maine has. Maine is even 

free to do so by using the same words to mean irreconcilable 

things. But before we may decide that the state has done so, we 

must be confident that its highest court would agree with that 

decision. And, in my view, neither the text of the MEPL nor any 

other interpretive sources can give us that confidence. I thus 

would certify to the Maine Law Court the question about how to 

31 After argument in this case, the Maine legislature amended the 

MEPL to add "race" as a protected category alongside "sex." 

Because that version of the statute was not in force at the time 

of the conduct at issue in this case, we construe here the text of 

the prior version of the statute.
- 57 -

construe the MEPL that is before us in this appeal, as that court, 

unlike ours, need not guess about the construction of the MEPL 

that it would adopt.32

I.

A.

The interpretive question at issue here concerns whether 

the MEPL makes an employer liable merely for paying differential 

wages to employees of different sexes for comparable work or only 

for paying such differential wages when the employer is also shown 

in doing so to have engaged in intentional discrimination on the 

basis of sex. The difficulty in answering that question arises 

because, in successive sentences, the MEPL repeats in nearly 

identical fashion words that refer to an employer's decision to 

discriminate on the basis of sex. Specifically, the MEPL's first 

sentence provides that an employer may not "discriminate . . . on 

the basis of sex by paying wages to any employee . . . at a rate 

less than the rate at which the employer pays any employee of the 

opposite sex for comparable work," Me. Stat. tit. 26, § 628 

(emphasis added), while the MEPL's second sentence provides that 

32 Because I would certify this question to the Maine Law 

Court, I would not reach the second interpretive question at issue 

in this appeal, which concerns the availability of treble damages. 

If the Law Court were to disagree with the reading of the MEPL 

that the majority adopts, I see no reason why we would not simply 

remand the case to the District Court without reaching the damages 

question.
- 58 -

such differential wages paid "pursuant to established seniority 

systems or merit increase systems or difference in the shift or 

time of the day worked that do not discriminate on the basis of 

sex are not within the prohibitions in this section." Id.

(emphasis added). 

As the majority sees things, it is perfectly clear that 

the MEPL does not require an employer to have engaged in 

intentional sex-based discrimination to be liable under the MEPL. 

According to the majority, the measure clearly makes an employer 

liable -- barring any exception that the MEPL's second sentence 

sets forth -- merely for having paid employees of different sexes 

differential wages for comparable work.

The majority comes to this conclusion based solely on 

the MEPL's text, because the majority concludes that the MEPL's 

first sentence clearly defines an employer's decision to pay 

differential wages to employees of different sexes for comparable 

work as a decision to "discriminate . . . on the basis of sex." 

The majority recognizes that this construction works, however, 

only if the phrase "discriminate on the basis of sex" in the MEPL's 

second sentence does not mean what "discriminate . . . on the basis 

of sex" in that statute's first sentence does. The majority knows 

that the MEPL's second sentence would not parse if the words 

"discriminate on the basis of sex" were construed to mean only 

"paying wages to any employee . . . at a rate less than the rate 
- 59 -

at which the employer pays any employee of the opposite sex for 

comparable work." That sentence parses only if those words are 

read to be referring to the employer's intentional discrimination 

based on sex, as the sentence then provides, quite coherently, 

that an employer may make certain kinds of differential payments 

to employees of different sexes only when the differential is not 

the result of the employer's intentional sex-based discrimination.

The majority necessarily is concluding, therefore, that 

it is clear from the MEPL's text alone that the MEPL is using allbut-identical phrases to mean contradictory things across its two 

sentences. So, the majority must explain how we can be confident 

that the Maine Law Court would agree when Maine courts ordinarily 

read Maine statutes to use the same words to mean the same things. 

See, e.g., Att'y Gen. v. Sanford, 225 A.3d 1026, 1030 (Me. 2020) 

(reasoning that "[t]he [Maine] Legislature's use of nearly 

identical language" in two related statutes "demonstrate[d] [the 

Legislature's] intent" to establish "equal" standards (emphasis in 

original) (citing Great. N. Nekoosa Corp. v. State Tax Assessor, 

675 A.2d 963, 967-68 (Me. 1996) (Clifford, J., dissenting) 

("Identical words in different parts of the same statute are 

presumed to have the same meaning" (emphasis in original))).

The majority's explanation relies in part on the fact 

that the MEPL's first sentence uses the word "by" to link the 

phrase "discriminate . . . on the basis of sex" to the phrase 
- 60 -

"paying of . . . ." As a matter of ordinary speech, the majority 

reasons, that formulation plainly defines "discriminat[ion] . . . 

on the basis of sex" to be the mere paying of the differential 

wages. 

The District Court offered an analogy to support the 

same conclusion. It asserted that a referee's rule that "players 

may not engage in unsportsmanlike conduct by celebrating a 

touchdown" plainly makes it "beside the point to argue about 

whether a particular celebration was unsportsmanlike" because "the 

referee removed all ambiguity by defining the conduct that is 

deemed unsportsmanlike." The District Court then explained that 

the first sentence of the MEPL is no different, as the word "by" 

there similarly makes clear that it is "beside the point" whether 

the employer intended to "discriminate . . . on the basis of sex" 

in paying differential wages.

It is not necessarily the case, however, that when the 

word "by" follows words that describe a certain type of conduct, 

the word "by" signals that the next set of words defines that 

conduct. A law that bans the "theft of electronic funds by 

unauthorized computer access," for example, plainly does not 

define the "unauthorized computer access" itself to be prohibited 

"theft," as no one could doubt that the "access" still must result 

in "theft" to be barred. Indeed, it is not even clear to me that 

the District Court's posited ban on "unsportsmanlike conduct by 
- 61 -

celebrating after a touchdown" must be read to forbid literally 

all touchdown celebrations. I do not think it self-evident that 

it would be "unsportsmanlike" for players on one high school 

football team to celebrate an opposing player's touchdown if they 

knew that the player who scored it had overcome great adversity.

Simply put, when a statute uses the word "by" as the 

MEPL's first sentence does, that word may signal no more than that 

the words that follow it set forth a specific means of carrying 

out the conduct that is barred, so that those trailing words limit 

rather than define the kind of conduct that is barred. And, when 

that is so, the statutory text alone will not suffice to make clear 

the nature of the prohibited conduct -- whether "theft," 

"unsportsmanlike conduct," or an employer's decision to 

"discriminate . . . on the basis of sex" -- unless the words that 

name that conduct in and of themselves make the nature of that 

conduct clear.

As a result, it seems to me that the text of the MEPL's 

first sentence would clearly compel the majority's reading only if 

the word "by" were clearly signaling that a decision to pay 

differential wages to employees of different sexes for comparable 

work is in and of itself a decision to "discriminate . . . on the 

basis of sex" rather than merely a specific means of carrying out 

the only kind of conduct that the MEPL prohibits: a decision by an 

employer to intentionally discriminate on that basis. After all, 
- 62 -

the majority appears to agree that the words "discriminate . . . 

on the basis of sex" do not themselves make clear that the MEPL's 

prohibition encompasses decisions by employers that do not 

intentionally discriminate on the basis of sex, as the majority 

does not suggest that those words may never be read to be referring 

only to decisions by employers to engage in such discrimination 

intentionally. In fact, the majority reads those very same words 

in the MEPL's second sentence to be referring solely to 

discriminatory conduct based on sex that is of that intentional 

kind. 

The majority does attempt to shore up its reading of the 

MEPL by pointing out -- rightly -- both that we must construe the 

statute's first sentence in the context of the statute as a whole 

and that the Maine Law Court is not in the habit of construing the 

state's statutes to render portions of them superfluous. The 

majority then asserts that, as a result, the MEPL's first sentence 

must be read to be defining an employer's decision to pay the 

differential wages as itself a decision to "discriminate . . . on 

the basis of sex," because otherwise the statute's second sentence, 

in exempting an employer's decision to pay the differential wages 

in certain circumstances, would be rendered superfluous. 

The majority's own construction of the MEPL, however, 

appears to be in some tension with the anti-superfluity canon that 

the majority invokes. If the majority were right that the MEPL's 
- 63 -

first sentence prohibits an employer's decision to pay the 

differential wages and defines that decision as "discriminat[ion] 

. . . on the basis of sex," then the first sentence could have cut 

right to the chase and simply read, "An employer may not pay wages 

to any employee . . . at a rate less than the rate at which the 

employer pays an employee of the opposite sex for comparable 

work[.]" In fact, though, the first sentence includes -- seemingly 

unnecessarily, under the majority's reading -- the words 

"discriminate . . . on the basis of sex."

The majority does assert that, under its construction of 

the MEPL, the phrase "discriminate . . . on the basis of sex" is 

not, in fact, superfluous. On the majority's view, that phrase 

still serves the useful function of clarifying that the conduct 

that follows the word "by" is itself a type of "discriminat[ion] 

. . . on the basis of sex." 

But if the anti-superfluity canon tolerates words that 

are not strictly necessary so long as they are clarifying, then I 

do not see why we must conclude that that canon plainly rules out 

the reading of the MEPL that the majority rejects. It would not 

be unprecedented for a pay-equity statute to clarify its scope by 

setting forth a few safe harbors for employers that were not 

strictly necessary to announce. Indeed, the federal counterpart 

to the MEPL, the FEPA, lists specific examples of non-sex-based 

pay differentials that are allowed even though that statute also 
- 64 -

contains a catch-all exemption for all pay differentials that are 

based on a factor other than sex. See 29 U.S.C. § 206(d) 

(prohibiting the payment of differential wages "on the basis of 

sex . . . except where such payment is made pursuant to (i) a 

seniority system; (ii) a merit system; (iii) a system which 

measures earnings by quantity or quality of production; or (iv) a 

differential based on any factor other than sex" (emphasis added)). 

Here, the MEPL's two-sentence structure and use of the 

passive construction "are not within this prohibition," Me. Stat. 

tit. 26, § 628, plausibly invite one to read the MEPL's second 

sentence to be doing something similar. On this understanding, 

the MEPL's second sentence expressly names certain common types of 

conduct that are exempt from the first sentence's ban on 

discrimination on the basis of sex when those types of conduct do 

not result from intentional discrimination on that basis, even 

though the first sentence already establishes that the ban does 

not cover any conduct that is not the result of such intentional 

discrimination. 

For all these reasons, then, I conclude that the MEPL's 

text at most reveals that we have a classic contest between 

linguistic canons. In one corner is the same words-same meaning 

canon, which suggests that the MEPL requires proof of the 

employer's intentional discrimination on the basis of sex. In the 
- 65 -

other corner is the anti-superfluity canon, which suggests that no 

such proof is required. 

The majority concludes, based on the MEPL's text alone, 

that the Maine Law Court would decide that the anti-superfluity 

canon prevails here. But I cannot see how we can be so sure, if 

the text is our only guide, when the Maine Law Court is sensibly 

sensitive to context in applying that canon, see Cent. Me. Power 

Co. v. Devereux Marine, Inc., 68 A.3d 1262, 1266 (Me. 2013) ("'All 

words in a statute are to be given meaning,' and no words are to 

be treated as surplusage 'if they can be reasonably construed.'" 

(citation omitted and emphasis added)), and that court has recently 

relied on the same words-same-meaning canon to interpret a Maine 

law, see Sanford, 225 A.3d at 1030 (reasoning that "[t]he [Maine] 

Legislature's use of nearly identical language" in two related 

statutes "demonstrate[d] [the Legislature's] intent" to establish 

"equal" standards (emphasis in original) (citing Great. N. Nekoosa 

Corp., 675 A.2d at 967-68 (Clifford, J., dissenting) ("Identical 

words in different parts of the same statute are presumed to have 

the same meaning" (emphasis in original))). In my view, therefore, 

the statutory text alone fails to show that the interpretive answer 

to the question at hand is as clear as the majority contends. 

B.

The majority does suggest that even if the MEPL's text 

is not, in and of itself, decisive, an interpretive tiebreaker on 
- 66 -

which Maine courts generally rely is. See O'Connor v. Oakhurst 

Dairy, 851 F.3d 69, 79–81 (1st Cir. 2017) (not certifying question 

to Maine Law Court despite ambiguous text because Law Court 

precedent supplied "default rule of construction" that resolved 

ambiguity). The interpretive tie-breaker that the majority has in 

mind is set forth in Gordon v. Maine Central Railroad, 657 A.2d 

785, 786 (Me. 1995), in which the Maine Law Court explained that 

"[w]hen . . . a term is not defined in either the relevant 

statutory provisions or in prior decisions of [the Maine Law 

Court], Maine Courts may look to analogous federal statutes, 

regulations, and case law for guidance." This extra-textual look, 

however, only adds to my reasons for thinking that it would be 

useful to ask the Maine Law Court for its view. 

The majority notes that the MEPL's federal counterpart, 

the FEPA, begins much like the MEPL, as the FEPA states: "No 

employer . . . shall discriminate . . . between employees on the 

basis of sex by paying wages to employees . . . at a rate less 

than the rate at which he pays wages to employees of the opposite 

sex . . . for equal work," 29 U.S.C. § 206(d)(1). The majority 

then points out that the Supreme Court of the United States has 

construed that language in the FEPA not to require proof of 

intentional discrimination on the basis of sex. See Corning Glass 

Works v. Brennan, 417 U.S. 188, 195–96 (1974). Thus, the majority 

reasons, we can be confident that, to ensure that parallel state 
- 67 -

and federal measures are construed in parallel fashion, the Maine 

Law would construe the MEPL's first sentence the same way that the 

similar language in the FEPA has been construed.

The problem with this reasoning is that the Maine Law 

Court looks to federal law to interpret its own statutes only "when 

the federal and state laws are substantially identical." Scamman

v. Shaw's Supermarkets, Inc., 157 A.3d 223, 233 (Me. 2017) 

(emphasis added) (quoting Percy v. Allen, 449 A.2d 337, 342 (Me. 

1982)). I cannot see, however, the basis for our being confident 

that the Maine Law Court would conclude that the MEPL and the FEPA 

are substantially identical.

The FEPA, like the MEPL, does expressly identify 

practices that the FEPA's prohibition does not cover. But the 

FEPA identifies those practices in the same sentence that sets 

forth the prohibition itself, and the FEPA then sets off the exempt 

practices through the word "except." 29 U.S.C. § 206(d)(1). By 

contrast, the MEPL identifies the practices that its prohibition 

expressly exempts in a separate sentence from the one that 

establishes the prohibition itself, and the MEPL does so by using 

the phrase "discriminate on the basis of sex" in the second 

sentence after using the phrase "discriminate . . . on the basis 

of sex" in the first sentence. 

As a result, the text of the FEPA simply does not present 

the interpretive conundrum that the MEPL does about how the phrase 
- 68 -

"discriminate on the basis of sex" in the second sentence stands 

in relation to the all-but-identical phrase "discriminate . . . on 

the basis of sex" in the first sentence. For that reason, I do 

not see how we can be sure that the Maine Law Court would look to 

Corning Glass Works to make sense of that conundrum.

The majority does interpret Scamman to mean that Maine 

courts "otherwise construe[] Maine discrimination laws to give 

effect to any [textual] differences" between those laws and their 

federal counterparts. And, on that basis, the majority contends 

that the limited list of exempt practices in the MEPL in and of 

itself shows that statute is meant to prohibit more conduct than 

the FEPA, given that the FEPA has a catch-all (and thus much 

broader) exemption. 

But in Scamman itself the Maine Law Court determined 

that the Maine Human Rights Act ("MHRA"), 4 Me. Stat. § 57, and 

its counterpart federal statute, the Age Discrimination in 

Employment Act ("ADEA"), 29 U.S.C. §§ 621–34, were "not

substantially identical" -- and therefore that "neither the text 

of the [federal statute] nor the federal cases applying that text 

provide[d] helpful guidance for interpreting [the MHRA]." 

Scamman, 157 A.3d at 233. And the Scamman court did so precisely 

because, "[u]nlike the ADEA, the MHRA does not contain" a catchall "reasonable factor other than age" affirmative defense. Id.

at 233, 230 (emphasis added).
- 69 -

Here, precisely the same "substantive difference" is 

present, id., and, moreover, the relevant federal statute does not 

repeat the critical "discriminate" phrase that the MEPL does. The 

majority thus needs to explain, insofar as it is relying on 

Scamman, why we should not "give effect" to these plain textual 

differences between the MEPL and the FEPA, as they are differences 

that would appear to establish that, like the measures at issue in 

Scamman, the FEPA and the MEPL are not "'substantially identical'" 

and so should not be construed as if they were. Scamman, 157 A.3d 

at 233 (quoting Percy, 449 A.2d at 342).

There is also a very practical reason for us to be wary 

of predicting that the Maine Law Court would construe the MEPL's 

first sentence as the FEPA's similar language has been construed. 

As it turns out, the scope of the MEPL and the FEPA would in 

practical effect be quite similar if the intent-based reading of 

the MEPL were embraced. 

If the MEPL were so construed, then there would be good 

reason to construe that statute to incorporate the burden-shifting 

framework for proving intentional discrimination that is common to 

civil rights measures. Cf. Scamman, 157 A.3d at 233, 228 (holding 

that "the business necessity" "burden-shifting scheme" that 

federal courts apply to Title VII disparate impact claims "applies 

to disparate impact age discrimination claims brought pursuant to 

the [Maine Human Rights Act ("MHRA")]."). And, in that event, an 
- 70 -

employer could be liable under the MEPL for the mere conduct of 

paying differential wages to employees of different sexes for 

comparable work absent the employer showing that the differential 

was based on "some legitimate, nondiscriminatory reason" that was 

not a pretext for discrimination based on sex, McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802 (1973); see Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) ("[A] plaintiff's 

prima facie case, combined with sufficient evidence to find that 

the employer's asserted justification is false, may permit the 

trier of fact to conclude that the employer unlawfully 

discriminated."), much as an employer is liable under the FEPA 

merely for paying such differential wages absent the employer 

showing that the differential was based on "any other factor other 

than sex," 29 U.S.C. § 206(d)(1). 

If the MEPL were construed not to require proof of the 

employer's intentional discrimination, however, then, 

paradoxically, the daylight between the MEPL and the FEPA would be 

quite substantial. So read, the MEPL would bar an employer from 

basing a pay differential between employees of different sexes on, 

say, the greater educational attainment or experience of the 

higher-paid employee, see Merillat v. Metal Spinners, Inc., 470 

F.3d 685, 697-98 (7th Cir. 2006), the competitive nature of the 

job market at the time of the higher-paid employee's recruitment, 

see Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 
- 71 -

2001), or the need to match the higher-paid employee's previous 

salary, see Engelmann v. Nat'l Broad. Co., No. 94-CIV-5616, 1996 

WL 76107, at *10 (S.D.N.Y. Feb. 22, 1996). Yet, the FEPA has been 

construed to permit each of those common compensation practices. 

As a result, I am not at all sure that the Maine Law 

Court would conclude that the interpretive tie-breaker that the 

majority invokes favors the majority's reading of the MEPL. By 

interpreting the MEPL's language to parallel the FEPA's, the Maine 

Law Court would not be aligning the two measures, in practical 

effect. Rather, it would be driving them farther apart than they 

otherwise would be.

The majority does point out that the MEPL refers to 

"comparable" work while the FEPA refers only to "equal work," and 

the majority suggests that this textual difference clearly shows 

that the MEPL is intended to be stricter than the FEPA in barring 

differential pay. The fact that the MEPL is stricter than the 

FEPA in that one respect, however, does not necessarily show to me 

that the MEPL is intended to be stricter along the dimension that 

matters for present purposes. Thus, I cannot see how we can glean 

from this textual difference any confidence that the Maine Law 

Court would apply the interpretive tie-breaker on which the 

majority relies, especially when the tie-breaker's application 

here would make the scope of the two measures more rather than 

less divergent. 
- 72 -

C.

The majority also suggests that there is good reason to 

have confidence that the Maine Law Court would construe the MEPL 

not to require proof of an employer's intentional discrimination 

based on sex because of the way that other states have chosen to 

ensure pay equity. But here, too, I cannot agree.

The majority rightly identifies a minority of eleven 

state equal-pay laws that both have no catch-all affirmative 

defense to liability and have not been authoritatively construed 

to require the plaintiff to make a showing of intentional 

discrimination on the basis of sex. But as the majority must 

acknowledge, ten of those statutes are worded very differently 

from the MEPL, including by virtue of the fact that they do not 

repeat the critical "discriminate" phrase in successive sentences

as the MEPL does.33

True, three state equal-pay statutes -- Idaho's, South 

Dakota's, and Kentucky's -- share the textual features that combine 

to create the ambiguity in the MEPL that concerns me: the use of 

the words "discriminate . . . on the basis of sex by paying 

[unequal] wages" in the first sentence; the use of "discriminate 

on the basis of sex" in the second sentence; and the lack of an 

33 See Colo. Rev. Stat. § 8-5-102; Mass. Gen. Laws ch. 149, § 

105A; Mont. Code Ann. § 39-3-104; N.M. Stat. Ann. § 28-23-3; Or. 

Rev. Stat. § 652.220; Tex. Labor Code Ann. § 21.102; Utah Code 

Ann. § 34A-5-106; Wis. Stat. § 111.36.
- 73 -

expansive catch-all exemption akin to the FEPA's. See Idaho Code 

§ 44-1702; S.D. Codified Laws §§ 60-12-15 to -16; Ky. Rev. Stat. 

Ann. § 337.423. But, as best I can tell, only these three states 

have pay-equity measures so worded, and there is no precedent that 

construes any of them that is both from the highest court in the 

relevant state and resolves the textual conundrum that each, like 

the MEPL, presents in the way that the majority resolves it.34 So, 

we literally have no indication that the highest court of any state 

would construe a measure that is worded like the MEPL in the way 

that the majority contends that it is clear that the Maine Law 

Court would.

In addition, as the majority acknowledges, it would not 

be unheard-of for a state to enact an equal pay statute that 

requires a showing of intentional discrimination on the basis of 

sex. See Okla. Stat. tit. 40, § 198.1 ("It shall be unlawful for 

any employer within the State of Oklahoma to willfully pay wages 

to women employees at a rate less than the rate at which he pays 

34 True, in Perkins v. U.S. Transformer W., 974 P.2d 73 (Idaho 

1999), overruled on other grounds by Poole v. Davis, 288 P.3d 821, 

825 n.1 (Idaho 2012), the Idaho Supreme Court noted that a jury 

found an employer liable under Idaho's equal-pay statute for paying 

a female employee less than her male counterparts but did not find 

the employer liable for willful discrimination under Idaho's 

analogue to Title VII. Id. at 75. The legal issue before the 

court, however, concerned only attorney's fees. We therefore lack 

any insight into the basis for the divergent jury verdicts or 

whether the employer made any argument akin to the one that the 

employer in this case now makes.
- 74 -

any employee of the opposite sex for comparable work on jobs which 

have comparable requirements relating to skill, effort and 

responsibility[.]"). Indeed, there is at least one other state 

equal-pay measure that uses words that invite a requirement to 

prove such intent that has not yet been authoritatively construed 

to dispense with that requirement. See Wash. Rev. Code § 49.58.020 

("Any employer . . . who discriminates in any way in providing 

compensation based on gender between similarly employed employees 

. . . is guilty of a misdemeanor.").35

The majority also points out that state and federal 

courts in Vermont, California, Minnesota, Connecticut, Washington, 

New Jersey, Arkansas, and Tennessee have interpreted state equalpay laws "to not require proof of an employer's discriminatory 

intent to establish liability." But each of those laws is also 

worded very differently from the MEPL. In fact, like the FEPA, 

none repeats the critical "discriminate" phrase in successive 

sentences, and each (like the FEPA) contains a catch-all provision 

that exempts pay differentials that did not result from intentional 

discrimination on the basis of sex. See Vt. Stat. Ann. tit. 21, 

§ 495; Cal. Lab. Code § 1197.5; Minn. Stat. § 181.67; Conn. Gen. 

35 Although the Supreme Court of Washington applied cases 

interpreting the FEPA in interpreting that state's equal pay 

statute in Adams v. University of Washington, 722 P.2d 74, 77 

(Wash. 1986), that court did so only because both parties urged 

the court to do so, id.
- 75 -

Stat. § 31-75; Wash. Rev. Code § 49.58.020; N.J. Stat. Ann. § 

34:11-56.2; Ark. Code Ann. § 11-4-610; Tenn. Code Ann. § 50-2-202.

For similar reasons, I do not find much insight into how 

the Maine Law Court would construe the MEPL in the Massachusetts 

Supreme Judicial Court's ("SJC") construction of that state's 

equal-pay measure in Jancey v. School Committee of Everett, 658 

N.E.2d 162 (Mass. 1995). For, while the majority contends the 

SJC's decision there supports the conclusion that the Maine Law 

Court would read the MEPL not to require proof of an employer's 

intentional discrimination on the basis of sex, the Massachusetts 

measure reads: "No employer shall discriminate in any way on the 

basis of gender in the payment of wages, or pay any person in its 

employ a salary or wage rate less than the rates paid to its 

employees of a different gender for comparable work." Mass. Gen. 

Laws ch. 149, § 105A (emphasis added). Thus, through the word 

"or", that measure, unlike the MEPL, plainly announces two distinct

prohibitions, one on "discriminat[ing] . . . on the basis of gender 

in the payment of wages" and another on the mere conduct of paying 

unequal wages.36

36 Several other states also have -- or had -- equal-pay 

measures that establish two distinct prohibitions, and one of those 

measures goes so far as to list the two prohibitions as separate 

subsections of the statute. See, e.g., Or. Rev. Stat. § 652.220 

("It is an unlawful employment practice . . . for an employer to: 

(a) [i]n any manner discriminate between employees on the basis of 

a protected class in the payment of wages or other compensation 

for work of comparable character . . .; (b) [p]ay wages or 
- 76 -

In sum, I fail to see how a survey of state equal-pay 

measures compels the conclusion that the Maine Law Court would 

decide that Maine intended through the MEPL to enact an equal-pay 

measure as sweeping as the majority concludes that Maine has. 

Indeed, as even the majority must admit, only a minority of states 

have been held to have enacted a pay-equity measure that is as 

broad as that, and none of those measures shares the MEPL's unusual 

textual features. 

D.

There remains to be addressed only the MEPL's statutory 

history. See Scamman, 157 A.3d at 229 (noting that courts should 

only "look beyond" text to legislative history if the "plain 

language . . . is ambiguous"). The majority finds compelling 

support in that history for its reading of the MEPL. I do not. 

The majority notes both that the MEPL did not use the 

word "discriminate" when the state first passed that measure in 

compensation to any employee at a rate greater than that at which 

the employer pays wages or other compensation to employees of a 

protected class for work of comparable character."); W. Va. Code 

§ 21-5B-3 ("No employer shall: (a) In any manner discriminate 

between the sexes in the payment of wages for [comparable] work 

. . .; (b) pay wages to any employee at a rate less than that at 

which he pays wages to his employees of the opposite sex for 

[comparable] work."); Ark. Code Ann. § 11-4-610 (using "or" in 

similar fashion as Massachusetts statute); Elizabeth J. Wyman, The 

Unenforced Promise of Equal Pay Acts: A National Problem and 

Possible Solution from Maine, 55 Me. L. Rev. 23, 39 n.106, 45 n.143 

(2003) (listing former versions of Rhode Island and Washington 

equal-pay measures, which used "or" in a fashion similar to the 

Massachusetts statute).
- 77 -

1949 and that the MEPL at that time included a broad catch-all 

defense for any "other reasonable differentiation except 

difference in sex." Act of Aug. 6, 1949, ch. 262, 1949 Me. Laws 

207. The majority thus finds it significant that just two years 

after the passage of the FEPA the MEPL was amended not only to add 

"discriminate . . . on the basis of sex" in the first sentence but 

also to remove the catch-all defense. 

The timing of this change to the MEPL, according to the 

majority, supports -- and perhaps even requires -- the conclusion 

that Maine wanted to ensure that its equal-pay measure was at least 

as broad as the federal government's. But this sequence of 

events -- which, I note, pre-dates Corning Glass Works's intentless construction of the FEPA -- equally could show that the Maine 

legislature chose to remove the catch-all defense from the statute 

on the understanding that the phrase "discriminate . . . on the 

basis of sex" required a showing that a pay disparity was based on 

sex and so rendered a catch-all unnecessary. The majority's gloss 

on the meaning of the sequence of events also fails to explain the 

legislature's choice to add at the time of the amendment the words 

"discriminate . . . on the basis of sex" to the first sentence of 

the MEPL.

I recognize that the Maine legislature did retain the 

specific mention of some pay differentials (e.g., a differential 

based on seniority) that are permissible so long as they did not 
- 78 -

result from an employer's intentional sex-based discrimination. 

But, as I have explained, there is nothing anomalous about a payequity statute that sets forth some express safe harbors for 

clarifying purposes, and the text of the MEPL plausibly 

accommodates a reading in which the second sentence is doing just 

that.37

I also recognize that Maine has amended the MEPL several 

times after Corning Glass Works without altering the phrases that 

are our concern. But it is notoriously hazardous to draw 

inferences from what a legislature has not done. See Bostock v. 

Clayton Cnty., 140 S. Ct. 1731, 1747 (2020) ("[S]peculation about 

why a later Congress declined to adopt new legislation offers a 

'particularly dangerous' basis on which to rest an interpretation 

of an existing law a different and earlier Congress did adopt." 

(quoting Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 

633, 650 (1990))). And it is just as hazardous to do so here, 

37 The majority contends that the appellant waived this 

argument about an alternative way of understanding the legislative 

history by raising it for the first time at oral argument. But, 

even setting aside the fact that the line between raising issues 

and raising arguments for purposes of determining appellate waiver 

is not easily limned, see Yee v. City of Escondido, Cal., 503 U.S. 

519, 533 (1992), I know of no precedent that requires us to take 

at face value one party's claim about legislative history just 

because the opposing side has failed expressly to point out that 

claim's logical limitations. And here I am relying on the 

supposedly waived argument merely to point out how speculative the 

appellee's own narrative about the legislative history necessarily 

is.
- 79 -

even if we were to account for the Maine legislature's quite recent 

choice to amend the MEPL to add race as a protected category. 

While that change occurred after the District Court's decision in 

this very case, nothing in the text or legislative history of that 

amendment indicates that Maine meant to be endorsing any specific 

way of reading the untouched phrases.

There is one last point about the statutory history to 

address. At oral argument, the appellee suggested that because 

the Maine Human Rights Act ("MHRA"), Me. Stat. tit. 5, 

§ 4572(1)(A), is also on the books, it makes little sense to 

construe the MEPL to be intent-based. Why, the argument runs, 

would Maine have wanted to enact the MEPL if that statute would 

bar only conduct that is already prohibited by another statute?

Even if the MEPL were construed in the way that the 

majority rejects, however, the MHRA would not render the MEPL 

totally redundant, because the two statutes have different damages 

schemes. Compare Me. Stat. tit. 26, § 626-A (providing that a 

defendant found liable for violating the MEPL "is subject to a 

forfeiture of not less than $100 nor more than $500 for each 

violation," plus "unpaid wages . . . adjudged to be due, a 

reasonable rate of interest, costs of suit including a reasonable 

attorney's fee, and an additional amount equal to twice the amount 

of unpaid wages as liquidated damages") with Me. Stat. tit. 5, 

§§ 4613(2)(B) (providing that remedies for violations of the MHRA 
- 80 -

"may include, but are not limited to" a cease and desist order, an 

order of reinstatement with or without back pay, civil damages up 

to $100,000, and compensatory and punitive damages), 4614 

(providing for the award of reasonable attorney's fees and costs 

to the prevailing party in an MHRA action). And, in any event, 

the redundancy would mirror the redundancy that exists in federal 

law between the FEPA and Title VII.38 Moreover, because the MHRA 

was enacted years after the enactment of the textual features of 

the MEPL that are at issue in our case, the MHRA's existence hardly 

suffices to prove that the MEPL was intended to be as encompassing 

as the majority reads it to be.

II.

Although the appellee is entitled to a federal forum for 

the resolution of this dispute over the meaning of the MEPL, the 

interpretive question that we must resolve is still one of Maine, 

not general, law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 

(1938). We thus must decide that question as Maine's own courts 

would. Id. And, in doing so, we are supposed to be cognizant of 

the hazards of guessing incorrectly about what the state's highest 

court would do and sensitive to that court's special role in 

38 In fact, the legislative history of Title VII shows that 

Congress intentionally took steps to make Title VII more redundant 

with the FEPA, even by going so far as to incorporate the FEPA 

into Title VII by explicit reference. See Cnty. of Wash. v. 

Gunther, 452 U.S. 161, 190–94 (1981) (Rehnquist, J., dissenting) 

(discussing history of the Bennett Amendment to Title VII).
- 81 -

interpreting the laws of its own state. Otherwise, we will end up 

paying lip-service to Erie while acting as if we are entitled to 

the last word.

Against that Erie-inflected backdrop, I find it 

significant that we confront an important Maine-law measure that 

not a single Maine court has construed; that is worded in a 

peculiar fashion deployed in the pay-equity laws of only three 

other states, none of which yet has been authoritatively construed 

in the relevant respect; and for which there is no decisive statelaw rule of construction that applies. In consequence, in trying 

to decide for ourselves whether, to be liable under the MEPL, an 

employer must be shown to have intentionally discriminated on the 

basis of sex in paying differential wages, the risks are unusually 

high that we will mistake our own powers of reason for those of 

the court whose exercise of those powers is ultimately 

determinative. 

Nor would the consequences of our making that mistake be 

trivial. By substituting our own guess for the Maine Law Court's 

definitive answer, we reduce the chance for that court to have an 

opportunity to offer its own resolution in a future case.39 In the 

39 Similarly, even if the Maine Law Court were to agree with 

the majority that no catch-all defense is implicit in the MEPL, 

that court still might conclude that other kinds of defenses are 

implicit in the statute. In Scamman, for example, the Maine Law 

Court declined to read a catch-all defense into the MHRA but did 

read a "business necessity" defense into it for age-discrimination 
- 82 -

meantime, we also necessarily -- and, in my view, 

needlessly -- create uncertainty for employers and employees in 

Maine alike, because any construction of this statute that we 

provide is inherently provisional while the Maine Law Court's word 

is definitive once given. 

Why, then, not get that court's last word now? True, by 

asking for it, we would be adding to the burdens of an already 

busy state court. But we would be doing so in a case that presents 

a question of broad public import and to which -- at least in my 

view -- the answer is hardly all but clear. 

I thus do not think we would be shirking our interpretive 

duties by certifying the question before us to the Maine Law Court. 

I think we would be prudently ensuring that we would not be 

overstepping them. In my view, then, in this case we should accept 

the general invitation that Maine has extended to us to certify 

difficult interpretive questions of Maine law to the Maine Law 

Court to resolve, given that I cannot see how we can be confident 

how the Maine Law Court would answer the specific question of Maine 

claims even while acknowledging that the text itself did not 

provide for one. 157 A.3d at 230. The majority's reading of the 

MEPL, then, could lead to summary judgment being granted against 

employers when the Maine Law Court might very well conclude that 

there are other defenses yet available to employers even if no 

proof of an employer's intentional discrimination on the basis of 

sex is required.
- 83 -

law that we confront here, see Me. Rev. Stat. tit. 4, § 57; Me. R. 

App. P. 25(a). Accordingly, I respectfully dissent.