Legislature Clarifies Who is Disabled Under Maine Law

In the wake of Whitney v. Wal-Mart, the Maine Legislature has amended the definition of "physical or mental disability" under the Maine Human Rights Act. In amending the definition, the Legislature has clarified the burden of proof for persons with disabilities seeking to pursue their rights in court. The change took effect on June 21, 2007.

Under the new definition, claimants may prove they are disabled by showing that they are substantially limited in one or major life activity, as is required under the federal Americans with Disabilities Act, however, that is not the only way to meet the burden. Claimants may also prove they are disabled by showing that their condition significantly impairs physical or mental health or requires special education, vocational rehabilitation, or related services. A disability significantly impairs physical or mental health if it has an actual or expected duration of more than six months and impairs health to a significant extent as compared to what is ordinarily experienced in the general population.

The new definition also includes a list of conditions that are per se disabilities under Maine law, without regard to severity. The list includes absent, artificial, or replacement limbs, hands, feet, or vital organs; alcoholism; amyotrophic lateral sclerosis; bipolar disorder; blindness or abnormal vision loss; cancer; cerebral palsy; chronic obstructive pulmonary disease; Crohn's disease; cystic fibrosis; deafness or abnormal hearing loss; diabetes; substantial disfigurement; epilepsy; heart disease; HIV or AIDS; kidney or renal diseases; lupus; major depressive disorder; mastectomy; mental retardation; multiple sclerosis; muscular dystrophy; paralysis; Parkinson's disease; pervasive developmental disorders; rheumatoid arthritis; schizophrenia; and acquired brain injury.

The definition further includes persons who are "regarded as" having or as likely to develop any of the above conditions.

The existence of a physical or mental disability is determined without regard to the ameliorative effects of mitigating measures such as medication, auxiliary aids, or prosthetic devices.

Certain conditions are per se excluded, such as pedophilia, exhibitionism, sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and tobacco smoking.

With this change in the law, persons with disabilities should no longer face dismissal of their cases based on the threshold issue of whether they are disabled and courts will be able to focus on the ultimate issue of whether unlawful discrimination occurred, putting disability discrimination law on par with other protected categories such as race, sex, age, and national origin. The change affects not only discrimination occurring in the employment context, but also discrimination in education, housing, and public accommodations.