An Act To Clarify Various Provisions of the Maine Human Rights Act
Maine Legislature, Session 129, LD 1701
Committee: Judiciary
Sponsors: BAILEY
Amends: 5 MRSA §4553, 5 MRSA §4555, 5 MRSA §4573-A, 5 MRSA §4592, 5 MRSA §4633

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