Covid 19 Issues

Maine Human Rights Commission Processing

Is the Maine Human Rights Commission (“Commission” or “MHRC”) open?

We are open, and actually never stopped our work enforcing the Maine Human Rights Act (“MHRA”).

The Commission is not allowing visitors to come into our office space, and are not yet sure when we will be able to do that. We do have some staff in the office every day (socially distanced, with masks and a lot of hand sanitizer) to receive and process US mail, items left in our drop box, and deliveries, and processing physical files as needed. Most staffers can work from home and are doing so, with sporadic trips to the office as needed. The Commission is not answering our phone line at this time, but are getting voice messages left several times per day and returning calls quickly. All staffers can access and return emails.

The Commission also continues to deliver webinar-based continuing legal education, trainings, and outreach, so please contact us to schedule something like that if needed.

 

Can I still submit an intake or Complaint of Discrimination to the Commission?

Absolutely! Our Intake Specialist is still accepting and processing new intakes and/or Complaints that we receive daily. If you believe you have been discriminated or retaliated against, please start an online Intake Questionnaire at https://www.maine.gov/mhrc/file. Or, feel free to contact the Commission by phone (207-624-6290) or email (info@mhrc.maine.gov) for further assistance.

 

Is the Commission still investigating the Complaint of Discrimination I filed before the pandemic started?

Although the Commission’s office is currently closed to the public, and our staff members may be in the office limited days/hours, please rest assured that if you previously filed a Complaint with our office that it is still being processed and/or investigated. The Commission continues conducting interviews, holding investigative conferences, doing mediations, and holding hearings, all by phone and/or video conferencing.

 

I need to file something with the Commission. Can I drop it off in person? What about email?

The Commission is accepting filings/submissions by e-mail. To make that possible, we need people who are filing/submitting by email to do the following: (1) indicate on the filing how they are submitting it (email, US Mail, fax, hand-delivery, combination of methods) so we know what to expect; (2) check with the other party/ies to ensure they can receive an electronic filing (some people don't have email/computers or access to them now); and (3) send a copy of the filing to the other party in the format they require with a copy to Executive Director Amy Sneirson (amy.sneirson@mhrc.maine.gov) we do not accept submissions emailed to us that require us to do file-sharing, or use proprietary database/electronic data management systems.

You also can use the Commission’s lobby drop box for physical filings. You cannot come up to our office, even to use the bathroom – sorry!

 

If the case I am involved in was summarized in an Investigator’s Report, is there a hearing I can be involved in?

Yes. Just as has always been the case, if a party involved in the case submitted an objection to the Investigator’s Report in the time allowed, the case will be listed on a Hearing Agenda for a public Commission meeting. The Commission meeting itself will take place on Zoom, a videoconferencing platform anyone can access over the Internet. For people without Internet access, you can call in by phone to participate. Whether by phone or video, you can present your arguments about the Investigator’s Report to the Commissioners, just as you would have been able to do in person before the pandemic. About 5-7 days before the Commission meeting, the Commission will contact you to share Zoom call-in and password information. If no party objected to the Investigator’s Report in the time allowed, the case will be listed on a “Consent” Agenda for a public Commission meeting. The Commissioners will not discuss any case individually, but will adopt the recommended determinations in all cases on the Consent Agenda in one vote; parties to Consent Agenda cases do not make presentations to the Commissioners. Parties to Consent Agenda cases can observe the public Commission meeting, just as any member of the public can; the morning of the meeting, the Commission posts a YouTube link to a livestream of the meeting.

 

If my case ended – by a Commission decision, or an administrative dismissal – are courts available for me to file a court action in the time allowed under the MHRA?

Yes. Maine’s state courts did not close completely, but did have highly limited access, during the worst of the pandemic. During that period, the Commission held off as much as possible on issuing administrative dismissals and other summary determinations, out of concern for individuals’ ability to pursue their claims in court. State courts now are opening up more and more to the public, as are Maine federal courts. You can find out more about Maine court availability at https://www.courts.maine.gov/covid19.shtml and federal court availability at https://www.med.uscourts.gov/.

 

Has the pandemic changed any of the timelines that apply to the MHRA or Commission?

No, but also yes. The most important timelines – that a person has 300 days from when discrimination occurred (or the person learned of the discrimination) to file a complaint with the Commission, and that the Commission has two years from the date a complaint is filed to complete investigation (but 100 days to complete housing investigations) – have not changed.

They are in the MHRA itself. Otherwise, the Commission’s longstanding practice of “no extensions!” has understandably changed during the pandemic. Lots of other deadlines – like how long a party has to file documents with the Commission – can be more flexible, so just ask the investigator or other person handling the case; if you aren’t sure who is assigned to your case, send an email to info@mhrc.maine.gov.

 

Types of Claims that Can Arise Related to COVID-19

 

Can I file a Complaint of Discrimination related to COVID-19 and my National Origin?

National origin -or perceived national origin - has been an issue of concern related to COVID-19.  If you have experienced adverse action and/or treatment (including, but not limited to harassment, exclusion, etc.) related to your national origin then you may have a discrimination claim covered under the Maine Human Rights Act (“MHRA”); this could occur in any area of MHRA jurisdiction (employment, housing, public accommodations, education, or extension of credit). This could look like people who are of Asian descent being treated poorly related to the pandemic's physical origin in China or an assumption that the person is infected because of their proximity to other Asian people who are more likely to be infected. This also could look like adverse action and/or treatment toward someone who was from a country experiencing significant outbreaks (China, Italy, etc.), just based on the assumption that the person was likely to be infected.   

 

Can I file a Complaint of Discrimination related to COVID-19 and Disability?

The answer is yes!  If you have experienced adverse action and/or treatment (including, but not limited to harassment, exclusion, etc.) related to disability, perceived disability, and/or association with a person with a disability then you may have a discrimination claim covered under the Maine Human Rights Act (“MHRA”); This could look like an adverse decision about someone based on their perceived susceptibility to COVID-19 due to underlying disability (or perceived disability) or association with someone who is disabled. Exclusion from employment, housing, or public accommodation opportunities based on presumed susceptibility due to disability could look like not allowing people with a disability like diabetes or cancer to take advantage of opportunities because of their perceived risk (or cost of possible liability). This might include adverse action and/or treatment after someone contracted COVID-19; that could involve analysis of whether COVID-19 and/or related conditions are or could be perceived as a "disability".   

 

Can I file a Complaint of Discrimination related to Sex?

Definitely. In employment or housing, a person who is seeking an opportunity could be subjected to sex-based harassment in the form of demands for sexual favors in exchange for being able to access a job or housing opportunity. The Commission has received anecdotal reports about people who cannot pay rent being subjected to sexual harassment in the form of “if you cannot pay rent let’s find another way to make it up”.

 

Employment - what if I have disability concerns related to COVID-19 and face masks/ coverings?

An issue we are seeing a bit of now is employees wearing (or not wearing masks) at work, or being exposed to customers who are not wearing masks in places of public accommodation (i.e.: grocery stores), which also can be related to employee disability concerns. If an employee asks to be excused from wearing a mask while at work, that could be considered as a form of a reasonable accommodation. If this happens, the employer should engage in interactive dialogue with employee. As part of that, employer may ask for confirmation of the need to be excused from wearing a mask from a healthcare provider.  If the nature of the job doesn't allow for social distancing, employer can consider accommodations such as moving the employee's workstation, assigning the employee different job tasks, allowing the employee to utilize different face/breathing protection, allowing the employee to work from home, etc. If there are no accommodations available to keep the employee working and maintaining safety for others around them, the employer might under some circumstances consider requiring the employee to take leave time. If an employee wants to wear a mask to protect them from contagion because of an underlying disability and the employer will not allow it, this too could lead to a reasonable accommodation interactive dialogue between the employer and employee. 

 

Employment - what if I believe I am more at risk because of my age?

Other employment issues that we are particularly keeping an eye on include adverse employment action and/or treatment related to age.  This might occur because older people are presumed to be more susceptible to the COVID-19 virus, unavailability for work because of a need to care for children (disabled and otherwise) that are no longer in school, or even selection for furlough for a number of reasons. 

 

Employment - would I be covered under the Maine Whistleblowers’ Retaliation Act for expressing COVID-19 concerns?

Significant employment-related issues are likely to arise related to the Maine Whistleblowers' Protection Act, which makes it unlawful for an employer to retaliate against an employee for complaints/reporting of unsafe or unlawful activity related to work; this includes deviation from the standard of care in health/care settings. We have received several complaints about employees' having raised safety concerns about personal protective equipment (“PPE”) or the lack thereof, and we expect to receive a lot more.  

Employment - if I am hiring, or already employ people, how can employers determine who has COVID-19 and who doesn’t?

The U.S. Equal Employment Opportunity Commission, which enforces several anti-discrimination laws for larger employers (15+ or 20+ employees), has put out extremely good and detailed information and guidelines for employers. The EEOC and MHRC have a partnership agreement, and the employment anti-discrimination laws we enforce are substantially similar. Generally, the MHRA and federal anti-discrimination laws enforced by EEOC are parallel, so much of EEOC’s guidance will be applicable here in Maine. Even so, the MHRC does not specifically adopt the EEOC’s answers, as there may be slight difference between the MHRA and federal anti-discrimination laws that affect employer options.

Places of public accommodation - can places open to the public force customers to wear a face mask/covering?

A public accommodation can have a policy requiring face masks/covering for entry based on currently-available information from public health officials about a serious contagious illness like COVID-19. A public accommodation that does have a policy of requiring face masks should clearly communicate that policy to its customers (on its physical premises and its website, in its advertisements) to avoid unwelcome surprises to customers. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat” to the health or safety of others.

What can a public accommodation do if a person seeking entry refuses to wear a face mask?

It depends on the reason the person gives when they are asked to put on a mask. We have received a number of calls about a customer refusing to wear a mask in public accommodations that require them because the customer has a disability. Sometimes the customer states that the business has to modify their mask policy to create an exception for the customer. It is true that public accommodations do need to consider requests for reasonable accommodations related to disabilities, and that may include a request related to face masks. Some customers may go on to contend that the business cannot inquire about the nature of the disability to confirm whether the need to not wear a mask is legitimate; some people may even offer official-looking papers to support their positions, like this example Preview attachment ada.pdf. This is not an accurate interpretation of the MHRA or Americans with Disabilities Act, and ADA.gov has even issued a statement that that paperwork such as in the flyer attached are not issued or endorsed by the department.

A business is entitled to inquire generally (without a demand for paperwork, medical information or details) about the nature of the disability, and how that disability is related to the request to enter the accommodation without a face mask.

Places of public accommodation - can a business decline to serve a person with a disability without a face mask/ covering?

The public accommodation's services must remain accessible to disabled people who cannot wear masks even if access to the physical premises is not. A key issue is whether a request to enter a place of public accommodation without a mask is reasonable, because it may pose a direct threat to the health and safety of others. While the individual may say they don't have COVID-19 symptoms, currently understood science on COVID-19 indicates that many people who are asymptomatic actually are infected and infectious; therefore a danger to others.

A business may decline to allow the person in the store to shop, but still is required to deliver its services with other accommodations in order to remain compliant with the MHRA. If the person's disability-related issue is the face mask itself, the business may offer an alternative accommodation, such as a face shield, to the customer. (Face shields may also help employees and customers who require lipreading to communicate.) If the business does not have face shields available for such use, or the customer is unable to wear a face mask or shield due to disability, a business may decline to allow the person in the store to shop. However, the business still is required to deliver its services to the customer by using other accommodations in order to remain compliant with the MHRA. Depending on whether the person already has identified the item(s) they wish to purchase or not, alternative accommodations that offer the person a chance to get the goods they need - without entering the store and placing others at risk - could include: curbside pickup; online shopping; no-contact delivery; utilizing the services of a personal shopper in the store (with audio or video if needed); or providing an individual appointment time to enter the store without other customers present.

Other Resources

If you do not see an answer to your question here, please try consulting additional information from the US Equal Employment Opportunity Commission and/or the US Department of Housing and Urban Development (“HUD”):

EEOC: https://www.eeoc.gov/coronavirus

HUD: https://www.hud.gov/coronavirus

 

 

ADA and Face Mask Policies - Southeast ADA Center and Burton Blatt Institute at Syracuse University https://www.adasoutheast.org/ada/publications/legal/ada-and-face-mask-policies.php

 

No Mask, No Service? ADA Considerations for Business Owners Requiring Face Masks in Retail Stores- National Law Review  https://www.natlawreview.com/article/no-mask-no-service-ada-considerations-business-owners-requiring-face-masks-retail