Discrimination Based on Sexual Orientation

by Adrienne S. Hansen, Esq.

Effective September 15, 2007, the Legislature added "sexual orientation" to the list of protected classifications under the Maine Human Rights Act.

"Sexual orientation" is defined as "a person's actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression."

"Gender identity" is defined as "an individual's gender-related identity, whether or not that identity is different from that traditionally associated with that individual's assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous."

"Gender expression" is defined as "the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with that individual's assigned sex at birth."

In the employment context, the addition of "sexual orientation" as a protected classification means that employers may not discriminate on the basis of sexual orientation with respect to job advertising, solicitation, hiring, firing, promotion, discipline, and the provision of fringe benefits. For example, employers may not refuse to hire an applicant for a position based on assumptions or stereotypes about comparative employment characteristics based on sexual orientation rather than actual capabilities, and employers may not refuse to hire an applicant because of the preferences or prejudices of others, including coworkers, clients, business associates or customers. Employers are also required to make reasonable accommodations related to gender identity or gender expression unless they can demonstrate that the accommodations would impose an undue hardship on the conduct of the business of the covered entity.

Workplace harassment on the basis of sexual orientation is now actionable under the Maine Human Rights Act as well. Harassment includes unwelcome comments, jokes, acts, and other verbal or physical conduct when such conduct affects the terms and conditions of the individual's employment or has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating or hostile work environment.

There is a 180-day time limitation on filing a claim for discrimination on the basis of sexual orientation with the Maine Human Rights Commission. It is still possible to file a lawsuit in court for discrimination occurring more than 180 days ago, but remedies are drastically reduced.