94-348 – ADOPTED CHANGES TO RULES

 

Sec. 1.  Me. Hum. Rights Comm’n Reg. Ch. 3, Section 3.02, is amended to read:

 

3.02     DEFINITIONS

 

            A.        Unlawful Discrimination.

 

                        (1)        As in the Maine Human Rights Act.

 

                        (2)        The Commission interprets the term, "unlawful employment discrimination," as defined in the Act, to encompass three concepts:

 

                                    a.         Overt Discrimination - an intentional, purposeful act of discrimination;

 

                                    b.         Unequal or Disparate Treatment - treating members of a protected class in a different and less favorable manner than members of the similarly situated majority group. Proof of discriminatory motive is required;

 

                                    c.         Disparate Impact - conduct which, although applied equally to all, has an adverse effect on membership of a protected class as compared to the effect on members of the majority class; in other words, practices fair in form but discriminatory in operation. Intent or motive is of no consequence. See Griggs v. Duke Power Company, 401, U.S. 424, 91S. CT. 849, 3 FEP Cases 175 (1971).

 

                        (3)        A prima facie case of discrimination exists if the complainant establishes that membership in a protected class, even though not the sole factor, was nonetheless a substantial factor motivating the employer's conduct. If the complainant would not have been rejected, discharged or otherwise treated differently, but for membership in the protected class, the existence of other reasonable grounds for the employer's action does not relieve the employer from liability. Wells v. Franklin Broadcasting Corp., 403 A 2d 771, 20 FEP Cases 548 (1979).

 

            B.         Tests.

 

                        The word "test” means all employee selection procedures used to make employment decisions. Employee selection procedures include the evaluation of applicants, candidates or employees on the basis of stated minimum and preferred job qualifications, application forms, interviews, performance examinations, paper and pencil examinations, performance in training programs or probationary periods and any other procedures used to make an employment decision whether administered by an employer, employment agency, labor organization, licensing or certification board or apprenticeship committee.

 

                        Employment decisions include, but are not limited to hiring, promotion, demotion, membership in a labor organization, referral, retention, licensing, certification and membership in an apprenticeship program.

 

            C.        Physical or Mental Disability.

 

                        (1)        An applicant or employee who has a "physical or mental disability" means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such an impairment.

 

                        (2)        As used in paragraph (1) of this subsection, the phrase:

 

                                    (a)        “Physical or mental impairment” means

 

                                                (i)         any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

 

                                                                        Neurological; musculoskeletal; special sense organs; respiratory, genitourinary; hemic and lymphatic; skin; and endocrine;

                                                            or

 

                                                (ii)        any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

 

                                                The term "physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.

 

                                    (b)        “Major life activities” means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

 

                                    (c)        “Has a record of such an impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

 

                                    (d)        "Is regarded as having an impairment” means

 

                                                (i)         has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation;

 

                                                (ii)        has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

 

                                                (iii)       has none of the impairments defined in paragraph C (2) (a) of this section but is treated by an employer as having such an impairment and as being substantially limited by such impairment in one or more major life activities.

 

(3)        Mitigating Measures.

 

The existence of a disability is determined without regard to whether its effect is or can be mitigated by measures such as medication, auxiliary aids, prosthetic devices or other ameliorative measures.

 

C.        Physical or Mental Disability.

 

(1)        "Physical or mental disability" means:

 

(a)        Any disability, infirmity, malformation, disfigurement, congenital defect, or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions, or illness;

 

(b)        The physical or mental condition of a person that constitutes a substantial disability as determined by a physician or, in the case of mental disability, by a psychiatrist or psychologist; or

 

(c)        Any other health or sensory impairment that requires special education, vocational rehabilitation, or related services.

 

(2)        For purposes of subsection (C)(1)(a) only, the following terms have the following meaning:

                                    (a)        “Disability” means a physiological or mental condition that limits one or more major life activities, including, but not limited to, functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, lifting, reproduction, eating, sleeping, driving, and working.  The term “limits one or more major life activities” means makes achievement of a major life activity or activities difficult.

                                    (b)        “Infirmity” means a physiological disorder affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. 

                                    (c)        “Malformation” means a defective or abnormal bodily formation affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

                                    (d)        “Disfigurement” means an externally visible malformation.

                                    (e)        “Congenital defect” means a bodily defect present at birth affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

                                    (f)         “Mental condition” means any mental or psychological disorder, including, but not limited to, mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

            (3)        Mitigating measures. 

 

            The existence of a “physical or mental disability” is determined without regard to whether its effect is or can be mitigated by measures such as medication, auxiliary aids, prosthetic devices, or other ameliorative measures.

 

            (4)        Exceptions.

 

                        The term “physical or mental disability” does not include the following:

 

(a)        Conditions that are ordinarily experienced by the average person in the general population or are both transitory and minor, although episodic conditions shall not be considered transitory.  Conditions that fit within this exception include, but are not limited to, minor cuts or bruises, the common cold, typical flu, upset stomach, or ordinary headaches;

 

                                              (i)           The term “minor” refers to conditions with minimal adverse impact on an individual.  Any one or more of the following factors may be considered in determining whether a condition is minor:

                                                                        The nature and severity of the condition; 

                                                                        The duration or expected duration of the condition; 

                                                                        The nature and severity of any symptoms associated with the condition, including, but not limited to, pain, discomfort, loss of enjoyment of life, disfigurement, or impairment of functioning; 

                                                                        The nature and severity of any adverse physiological or psychological effects of the condition; 

                                                                        The nature and severity of any adverse social or economic consequences of the condition;

                                                                        The extent of medical care, if any, required or expected to treat the condition; 

                                                                        The perceptions or expectations of others with respect to any of these factors; or

                                                                        The extent to which the condition is susceptible to prejudice, stigma, stereotype, or fears.

 

(b)        Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, sexual behavior disorders, compulsive gambling, kleptomania, pyromania; or

 

(c)        Psychoactive substance use disorders resulting from current illegal use of drugs, although this shall not be construed to exclude an individual who –

 

(i)         has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

 

(ii)        is participating in a supervised rehabilitation program and is no longer engaging in such use;

(iii)       is erroneously regarded as engaging in such use, but is not engaging in such use; or

 

(iv)       in the context of a reasonable accommodation, is seeking treatment or has successfully completed treatment.

 

            (5)        Person with physical or mental disability.

 

"Person with physical or mental disability" or "individual with a physical or mental disability" means a person who:

 

(a)        Has a physical or mental disability;

 

(b)        Has a record of a physical or mental disability; or

 

(c)        Is regarded as having a physical or mental disability.

 

Sec. 2.  Me. Hum. Rights Comm’n Reg. Ch. 3, Section 3.04(B)(2) is amended to read:

 

It is unlawful practice for any employer, employment agency or labor organization to handwrite, print or circulate any interoffice or interagency communication, job order, advertisement, brochure, or notice which expresses directly or indirectly a preference or specification on the basis of race or color, sex, physical or mental handicap physical or mental disability, religion, ancestry or national origin, or age unless the expression is based on a bona fide occupational qualification or made in accordance with a corrective employment program such as an affirmative action plan.

 

Sec. 3.  Me. Hum. Rights Comm’n Reg. Ch. 3, Section 3.08(E) is amended to read:

 

            E.         Pre-employment Inquiries

 

(1)        Except as provided in paragraphs (2) and (3) of this sub-section, an employer may not conduct a pre-employment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is an individual with a physical or mental disability or as to the nature or severity of a physical or mental disability. An employer may, however, make pre-employment inquiry into an applicant's ability to perform job-related functions.

 

(2)        When an employer is taking remedial action to correct the effects of past discrimination, when an employer is taking voluntary action to overcome the effects of conditions that, in the past, resulted in limited employment opportunities for individuals with physical or mental disabilities or when an employer is taking other affirmative action, the employer may ask applicants to what extent they are disabled have a physical or mental disability, provided that:

 

                        a)         The employer states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and

 

                        b)         The employer states clearly that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (4) of this sub-section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this part.

 

(3)        Nothing in this sub-section shall prohibit an employer from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty, provided that:

 

                        a)         All entering employees are subjected to such an examination regardless of physical or mental disability, and

 

                        b)         the results of such an examination are used in accordance with the requirements of the Maine Human Rights Act.

 

(4)        Information obtained in accordance with this sub-section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that:

 

                        a)         Supervisors and managers may be informed regarding restrictions on the work or duties of individuals with physical or mental disabilities and regarding necessary accommodations; and

 

                        b)         First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment; and.

 

            (5)        No person shall be denied equal consideration for employment, employment promotion, or any other term, condition, or privilege of employment because that person refused to answer a pre-employment inquiry, if that pre-employment inquiry is prohibited by these regulations and the Maine Human Rights Act.

 

Sec. 4.  Me. Hum. Rights Comm’n Reg. Ch. 3, Section 3.08(F)(1) is amended to read:

 

            F.         Separate Lines of Progression and Seniority Systems

 

            (1)        It is an unlawful employment practice to classify any job according to the presence or absence of physical or mental disability or to maintain separate lines of progression or separate seniority lists based on the presence or absence of such disability unless the absence of such disability is a bona fide occupational qualification for that job.

 

               (2)     A seniority system or line of progression which distinguishes between "light" and "heavy" jobs constitutes an unlawful employment practice if it operates as a form of classification based on the presence or absence of physical or mental disability or creates unreasonable obstacles to the advancement of individuals with physical or mental disabilities into jobs which such individuals with disabilities are capable of performing.

 

Sec. 5.  Me. Hum. Rights Comm’n Reg. Ch. 3, Section 3.08(I) is amended to read:

 

            I.          Harassment on the Basis of Physical or Mental Disability

 

            (1)        Harassment on the basis of physical or mental disability is a violation of Section 4572 of the Maine Human Rights Act. Unwelcome comments, jokes, acts and other verbal or physical conduct related to physical or mental disability constitute harassment on the basis of physical or mental disability when:

 

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

 

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

 

                        c)         such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

 

            (2)        An employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its agents and supervisory employees with respect to physical or mental disability harassment. When the supervisor’s harassment culminates in a tangible employment action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. When the supervisor’s harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving by a preponderance of the evidence:

 

                        a)         that the employer exercised reasonable care to prevent and correct promptly any harassing behavior based on physical or mental disability, and

 

                        b)         that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

 

            (3)        With respect to persons other than those mentioned in paragraph 2 of this section, an employer is responsible for acts of physical or mental disability harassment in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.

 

Sec. 6.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part I(A) is amended to read:

 

            A.        Purpose.

 

Pursuant to Title 5 M.R.S.A., §4566(7), the Maine Human Rights Commission has adopted the following regulations which are designed to inform owners and agents of public conveyances, handicapped persons persons with physical or mental disabilities, and other interested parties of the Commission's interpretation of the Maine Human Rights Act, Title 5 M.R.S.A., §4551, et seq., hereafter referred to as "The Act" and in particular Subchapter V, Public Accommodations, §4591 and §4592.

 

 

Sec. 7.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part II, is amended to read:

 

PART II.          DEFINITIONS

 

            A.        Public Conveyance.

 

                        "Public conveyance" means any vehicle or any other means of transport operated on land, water or in the air, which in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from the general public. "Public conveyance" includes any person who is the owner, lessee, operator, proprietor, manager, superintendent, agent or employee or any public conveyance. As defined in 14553 (7) of the Act, "person" includes one or more individuals, partnerships associations, organizations, corporations, municipal corporations, legal representatives, trustees, trustees in bankruptcy, receivers and other legal representatives, and includes the State and all agencies thereof.

 

            B.         Handicap.

 

                        (1)        "Handicap" includes physical or mental handicap.

 

                        (2)        A person who has a `physical or mental handicap" means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such an impairment.

 

                        (3)        As used in paragraph (2) of this subsection, the phrase:

 

                                    (a)        “Physical or mental impairment” means (i) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory; genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.

 

                                    (b)        “Major life activities” means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

 

                                    (c)        “Has a record of such an impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

 

                                    (d)        “Is regarded as having an impairment” means (i) has a physical or mental impairment that does not substantially limit major life activities but is treated by a public conveyance as constituting such a limitation; (ii) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) has none of the impairments defined in paragraph C (2)(a) of this section but is treated by a public conveyance as having such an impairment and as being substantially limited by such impairment in one or more major life activities. C. Accessible. "Accessible" means able to be entered, exited, and used safely, efficiently, and as independently as possible by persons with a physical or mental handicap.

 

 (4)       Mitigating Measures.

 

                                    The existence of a disability is determined without regard to whether its effect is or can be mitigated by measures such as medication, auxiliary aids, prosthetic devices or other ameliorative measures.

 

B.         Physical or Mental Disability.

 

(1)        "Physical or mental disability" means:

 

(a)        Any disability, infirmity, malformation, disfigurement, congenital defect, or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions, or illness;

 

(b)        The physical or mental condition of a person that constitutes a substantial disability as determined by a physician or, in the case of mental disability, by a psychiatrist or psychologist; or

 

(c)        Any other health or sensory impairment that requires special education, vocational rehabilitation, or related services.

 

(2)        For purposes of subsection (B)(1)(a) only, the following terms have the following meaning:

                                    (a)        “Disability” means a physiological or mental condition that limits one or more major life activities, including, but not limited to, functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, lifting, reproduction, eating, sleeping, driving, and working.  The term “limits one or more major life activities” means makes achievement of a major life activity or activities difficult.

                  (b)        “Infirmity” means a physiological disorder affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

                                    (c)        “Malformation” means a defective or abnormal bodily formation affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

                                    (d)        “Disfigurement” means an externally visible malformation. 

                                    (e)        “Congenital defect” means a bodily defect present at birth affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

                                    (f)         “Mental condition” means any mental or psychological disorder, including, but not limited to, mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(3)        Mitigating measures. 

 

The existence of a “physical or mental disability” is determined without regard to whether its effect is or can be mitigated by measures such as medication, auxiliary aids, prosthetic devices, or other ameliorative measures.

 

            (4)        Exceptions.

 

                        The term “physical or mental disability” does not include the following:

 

            (a)        Conditions that are ordinarily experienced by the average person in the general population or are both transitory and minor, although episodic conditions shall not be considered transitory.  Conditions that fit within this exception include, but are not limited to, minor cuts or bruises, the common cold, typical flu, upset stomach, or ordinary headaches;

 

                                              (i)           The term “minor” refers to conditions with minimal adverse impact on an individual.  Any one or more of the following factors may be considered in determining whether a condition is minor:

                                                                        The nature and severity of the condition; 

                                                                        The duration or expected duration of the condition; 

                        The nature and severity of any symptoms associated with the condition, including, but not limited to, pain, discomfort, loss of enjoyment of life, disfigurement, or impairment of functioning; 

                        The nature and severity of any adverse physiological or psychological effects of the condition; 

                        The nature and severity of any adverse social or economic consequences of the condition;

                        The extent of medical care, if any, required or expected to treat the condition; 

                        The perceptions or expectations of others with respect to any of these factors; or

                        The extent to which the condition is susceptible to prejudice, stigma, stereotype, or fears.

 

             (b)        Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, sexual behavior disorders, compulsive gambling, kleptomania, pyromania; or

 

            (c)        Psychoactive substance use disorders resulting from current illegal use of drugs, although this shall not be construed to exclude an individual who –

 

(i)         has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

 

(ii)        is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(iii)       is erroneously regarded as engaging in such use, but is not engaging in such use.

 

            (5)        Person with physical or mental disability.

 

"Person with physical or mental disability" or "individual with a physical or mental disability" means a person who:

 

             (a)        Has a physical or mental disability;

 

            (b)       Has a record of a physical or mental disability; or

 

            (c)        Is regarded as having a physical or mental disability.

 

            C.        Accessible

 

                        “Accessible” means able to be entered, exited, and used safely, efficiently, and as independently as possible by persons with a physical or mental handicap.

 

            D.        Separate Service.

 

                        "Separate service" means a conveyance that is available for the special use of handicapped persons and that uses vehicle(s) separate from the public conveyance available for use by all persons.

 

            E.         Bus.

 

                        "Bus" means intra-city or commuter transportation by bus or van which regularly serves the general public on a fixed route without restrictions on trip purpose.

 

            F.         Unlawful Discrimination.

 

                        (1)        As in the Maine Human Rights Act, Title 5 M.R.S.A., §4551, et seq.

 

                        (2)        The Commission interprets the term, "unlawful public accommodations discrimination" as defined in the Act and as applied to handicap discrimination in public conveyances, to encompass three concepts:

 

                                    (a)        Overt Discrimination - an intentional, purposeful act of discrimination;

 

                                    (b)        Unequal or Disparate Treatment - treating members of a protected class in a different and less favorable manner than members of the similarly situated group. Proof of discriminatory motive is required;

 

                                    (c)        Disparate Impact - conduct which, although applied equally to all, has an adverse effect on members of a protected class as compared to the effect on members of the majority class; in other words, practices fair in form, but discriminatory in operation. intent or motive is of no consequence. See Griggs v. Duke Power Company, 401 U.S. 424, 915 S.Ct. 849, 3 FEP Cases 175 (1971).

 

                        (3)        A prima facie case of discrimination exists if the Complainant establishes that membership in a protected class, even though not the sole factor, was nonetheless a substantial factor motivating the conduct of the public conveyance. If the Complainant would not have been denied service or otherwise treated differently, but for membership in the protected class, the existence of other reasonable grounds for the action by the public conveyance does not relieve the public conveyance from liability. See Wells v. Franklin Broadcasting Corp., 403 A.2d 771, 20 FEP Cases 548 (1979).

 

                        (4)        Unlawful discrimination includes separation or segregation of handicapped persons, except where separate facilities or services are the only way to provide access to a public conveyance without imposing an undue burden on the operation of the public conveyance. See Part III (D) and (E).

 

                        (5)        Unlawful discrimination includes the failure or refusal by a public conveyance to make reasonable accommodations to a person's physical or mental limitations, Unless the public conveyance can demonstrate that a reasonable accommodation does not exist or that an accommodation would impose an undue burden on the operation of the public conveyance.

 

Sec. 8.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part II(C) is amended to read:

 

            C.        Accessible.

 

             “Accessible” means able to be entered, exited, and used safely, efficiently, and as independently as possible by persons with a physical or mental handicap disabilities.

 

Sec. 9.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part II(D) is amended to read:

 

C.        Separate Service.

           

            "Separate service" means a conveyance that is available for the special use of handicapped persons with physical or mental disabilities and that uses vehicle(s) separate from the public conveyance available for use by all persons.

 

Sec. 10.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part II(F) is amended to read:

 

            F.         Unlawful Discrimination.

 

            (1)        As in the Maine Human Rights Act, Title 5 M.R.S.A., §4551, et seq.

 

            (2)        The Commission interprets the term, "unlawful public accommodations discrimination" as defined in the Act and as applied to handicap discrimination on the basis of physical or mental disability in public conveyances, to encompass three concepts:

 

                        (a)        Overt Discrimination - an intentional, purposeful act of discrimination;

 

                        (b)        Unequal or Disparate Treatment - treating members of a protected class in a different and less favorable manner than members of the similarly situated group. Proof of discriminatory motive is required;

 

                        (c)        Disparate Impact - conduct which, although applied equally to all, has an adverse effect on members of a protected class as compared to the effect on members of the majority class; in other words, practices fair in form, but discriminatory in operation. Iintent or motive is of no consequence. See Griggs v. Duke Power Company, 401 U.S. 424, 915 S.Ct. 849, 3 FEP Cases 175 (1971).

 

            (3)        A prima facie case of discrimination exists if the Complainant establishes that membership in a protected class, even though not the sole factor, was nonetheless a substantial factor motivating the conduct of the public conveyance. If the Complainant would not have been denied service or otherwise treated differently, but for membership in the protected class, the existence of other reasonable grounds for the action by the public conveyance does not relieve the public conveyance from liability. See Wells v. Franklin Broadcasting Corp., 403 A.2d 771, 20 FEP Cases 548 (1979).

 

            (4)        Unlawful discrimination includes separation or segregation of handicapped persons with physical or mental disabilities, except where separate facilities or services are the only way to provide access to a public conveyance without imposing an undue burden on the operation of the public conveyance. See Part III (D) and (E).

 

            (5)        Unlawful discrimination includes the failure or refusal by a public conveyance to make reasonable accommodations to a person's physical or mental limitations, uUnless the public conveyance can demonstrate that a reasonable accommodation does not exist or that an accommodation would impose an undue burden on the operation of the public conveyance.

 

 

Sec. 11.  Me. Hum. Rights Comm’n Reg. Ch. 5, Part III is amended to read:

 

            PART III.         UNLAWFUL HANDICAP PHYSICAL OR MENTAL

                                    DISABILITY   DISCRIMINATION IN PUBLIC CONVEYANCES

 

            A.        Unlawful Discrimination Specified in §4591 and §4592 of the Act.

 

                        (1)        As stated in §4591 of the Act, the opportunity for every individual to have equal access to places of public accommodation without discrimination because of physical or mental handicap disability is recognized as and declared to be a civil right. §4553 (8) defines "place of public accommodation" as including "all public conveyances operated on land, water or in the air as well as the stations and terminals thereof."

 

                        (2)        As stated in §4592 of the Act, it shall be unlawful public accommodations discrimination for any person, being the owner, operator, lessee, proprietor, manager, superintendent, agent or employee of any public conveyance, to directly or indirectly refuse, withhold from or deny to any person, on account of physical or mental handicap disability, any of the accommodations, advantages, facilities or privileges of such public conveyance, or for such reason in any manner discriminate against any person in the price, terms or conditions upon which access to such accommodation, advantages, facilities and privileges may depend.

 

                                    As stated in §4592 of the Act, it shall be unlawful public accommodations discrimination for any person to directly or indirectly publish, circulate, issue, display, post or mail any written, printed, painted or broadcast communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities or privileges of any public conveyance shall be refused, withheld from or denied to any person on account of physical or mental handicap disability, or that the patronage of any person having any particular physical or mental handicap disability is unwelcome, objectionable, or not acceptable, desired or solicited, or that the clientele thereof is restricted to members who do not have a particular physical or mental handicap disability. The production of any such written, printed, painted or broadcast communication, notice or advertisement, purporting to relate to any such conveyance, shall be presumptive evidence in any action that the same was authorized by its owners, manager or proprietor.

 

            B.         Use of Personal Care Attendants, Animal Aides and Devices to Assist in Mobility.

 

                        It shall be unlawful public accommodations discrimination for any public conveyance to directly or indirectly refuse, withhold from or deny to any person with a physical or mental disability, on account of such a person's use of a personal care attendant, animal aide, cane, wheelchair, crutches or any device used to assist in mobility, any of the accommodations, advantages, facilities, or privileges of a public conveyance, or for such reason in any manner discriminate against any person in the price, terms or conditions upon which access to such accommodations, advantages, facilities, or privileges may depend. A public conveyance may require a person with a physical or mental disability using a personal care attendant to obtain authorization from a physician and have a designated sticker, provided by the public conveyance on their Medicaid card and/or bus pass.

 

                        It shall be unlawful discrimination for any public conveyance to require payment of an extra charge on account of a person's with a physical or mental disability useing of a personal care attendant, animal aide, cane, wheelchair, crutches, or any device used to assist in mobility.

 

            C.        Harassment on the Basis of Physical or Mental Handicap Disability.