Who is Disabled? The Ongoing Struggle to Define Disability in Maine

Howard T. Reben, Esq. and Adrienne S. Hansen, Esq.
Reben, Benjamin & March

The overwhelming majority of employment discrimination suits are dismissed on summary judgment, typically because the plaintiff is unable to marshal enough evidence to present to a jury on the ultimate issue of whether he or she was discriminated against. Unlike race, sex, age, or national origin cases where membership in the protected class is readily apparent, plaintiffs in disability discrimination cases carry an additional burden: they must first prove that they are "disabled" within the meaning of the law - a costly and time-consuming battle that shifts the focus away from the ultimate issue of whether they were discriminated against. Maine law and federal law differ sharply on the definition of disability, with the Maine Human Rights Act (MHRA) employing a broad definition of disability and the federal Americans with Disabilities Act (ADA) and Rehabilitation Act employing a more restrictive definition requiring plaintiffs to show that their disability "substantially limits one or more major life activities." In the recent landmark decision of Whitney v. Wal-Mart , the Law Court lifted this additional burden from plaintiffs' shoulders, holding that the MHRA does not require plaintiffs to show that their disability substantially limits a major life activity and invalidating a Maine Human Rights Commission regulation parroting the more restrictive federal definition. Whitney increases the prospect of success for plaintiffs bringing disability discrimination cases under the MHRA, but the struggle to prove membership in this protected class is ongoing as the Commission endeavors to replace its outlawed regulation and is considering language that, while broader than the ADA, is still more restrictive than the MHRA.

Stanley Whitney was a salaried manager at Wal-Mart's North Windham store, working over 70 hours per week when he was diagnosed with high blood pressure and heart disease. When his physician restricted him to 45 hours, Wal-Mart insisted that he work 48-52 hours or be demoted to a non-salaried position. Whitney filed suit in state court, alleging disability discrimination under the MHRA. After removing the suit to federal court, Wal-Mart moved for summary judgment, which the Magistrate recommended, concluding that the MHRA, consistent with the ADA, required Whitney to show that his disability substantially limited a major life activity, and Whitney's only being able to work 45 hours per week did not meet that requirement. Before accepting the Magistrate's recommended decision, the District Court certified to the Law Court the questions of whether the MHRA definition of "physical and mental disability" requires a showing of a substantial limitation on a major life activity and whether the Commission's regulation defining "physical or mental impairment" is invalid because it requires such a showing. With Justice Alexander writing for a 4-3 majority, the Law Court held that the MHRA definition clearly does not require such a showing and, where the statute is clear, the MHRC regulation which does require such a showing is invalid. The Court emphasized that since the enactment of the MHRA in 1971, the Legislature has never sought to include in the definition of disability the federal requirement of showing a substantial limitation on a major life activity, despite having opportunities to do so following Congress's passage of the Rehabilitation Act in 1973 and the ADA in 1990, both of which expressly include such a requirement. In the last sentence of its opinion, the Court reiterated: "The entire history of the adoption and judicial interpretation of the definition of disability in the Maine Human Rights Act leaves no ambiguity for interpretation and supports the definition of 'disability' without a 'substantially limits one or more of the major life activities' qualification." Whitney is in line with prior decisions Rozanski v. A-P-A Transport Inc. and Maine Human Rights Commission v. Canadian Pacific Ltd. , in which the Court interpreted the definition of disability in MHRA without the "substantially limits" language, and found that even latent back conditions and asymptomatic heart murmurs were disabilities entitling the plaintiffs to protection. In Norton v. Lakeside Family Practice , Maine's federal district court interpreted the MHRA as also having a broader definition of disability than the Rehabilitation Act.

In the wake of Whitney, the Commission has acted quickly to revise its regulation. In early June, the Commission circulated a proposed amendment retaining the "substantially limits" language in the definition of disability. A public hearing was held on June 19, 2006, at which the Commission heard testimony from Maine citizens suffering from breast cancer, colon cancer, Crohn's disease, heart disease, and asthma; members of the plaintiffs' bar, including representatives from the Maine Employment Lawyers' Association and Disability Rights Center; members of the defense bar; the Chamber of Commerce; and the University of Maine System. Maine citizens and plaintiffs' advocates expressed concerns that the proposed amendment would track the federal definition that has failed to protect many individuals with serious physical and mental disabilities , that it violates the holding in Whitney, and that it is inconsistent with the Commission's long and distinguished record of interpreting the definition of disability broadly so as to protect victims of discrimination. Plaintiffs' advocates emphasized that 10 other states - Connecticut, New York, New Jersey, Rhode Island, Massachusetts, Minnesota, West Virginia, Washington, California, Illinois and Oregon - have adopted a much broader definition of disability than the federal definition, without noticeable economic consequences or a flood of litigation. Members of the defense bar echoed plaintiffs' attorneys' concerns that the proposed amendment violates Whitney and also argued that it fails to provide their business owner clients with a roadmap for following the law. The Commission has considered the testimony is working with advocates on both sides of the issue on the language of the revised regulation. It has since eliminated the "substantially limits" language, and is considering a de minimis exception which would eliminate trivial or very minor health conditions that do not rise to the level of a disability, e.g. those lasting only 4 weeks or less. Courts have regularly employed a de minimis exception when interpreting statutes under the well-settled legal principle of de minimis non curat lex, that is, the law does not concern itself with trifles. Advocates concerned with the need for certainty and avoidance of frivolous lawsuits have also proposed the creation of certain "safe harbors" - examples of conditions that will always be considered disabilities, such as HIV, cancer, and epilepsy, and those that will never be considered disabilities, such as the common cold, a cut or a bruise, and a common headache. The Law Court's holding in Whitney will alleviate the burden on victims of disability discrimination, but concerns that Whitney will invite a flood of litigation are unwarranted where membership in the protected class is merely the initial hurdle plaintiffs must overcome to win their case. While the final chapter is yet to be written, Whitney heralds a new era where victims of disability discrimination should no longer face dismissal on summary judgment based on the threshold issue of whether they are disabled and courts should be able to focus on the ultimate issue of whether they were discriminated against, putting disability discrimination law on par with other protected categories such as race, sex, age, and national origin.

The Maine Human Rights Act defines "physical or mental disability" as "any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness, and includes the physical or mental condition of a person that constitutes a substantial disability by a psychiatrist or psychologist, as well as any other health or sensory impairment that requires special education, vocational rehabilitation or related services."

895 A.2d 309 (Me. 2006).

The Rehabilitation Act defines a "handicapped individual" as a person who "has a physical or mental impairment which substantially limits one or more of such person's major life activities...". 29 U.S.C. § 705(20)(B)(i). The Americans with Disabilities Act defines a "physical or mental impairment" as one that "substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A).

895 A.2d at 316.

512 A.2d 335, 340 (Me. 1986).

458 A.2d 1225 (Me. 1983).

382 F.Supp.2d 202, 205 n.2 (D.Me. 2005).

The American Bar Association has conducted a study indicating that 96% of disability discrimination cases brought under the ADA are unsuccessful. See ABA, Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 MENTAL & PHYSICAL DISABILITY L. REP. 403, 404 (1998). In addition, federal courts have issued rulings finding individuals with the following conditions to be outside the federal definition of disability and thus without any protection against discrimination: HIV, breast cancer, ovarian cancer, prostate cancer, multiple sclerosis, asthma, depression, panic disorder, colitis, epilepsy, heart disease and diabetes.

See e.g. IBP Inc. v. Alvarez , 126 S. Ct. 514, 523 (2005) (recognizing exemption from overtime requirement of the Fair Labor Standards Act for the time employees spent donning and doffing protective gear because it was "de minimis as a matter of law"); Maxwell v. J. Baker Inc ., 805 F. Supp. 728, 734 (D. Minn. 1992) (recognizing "implied de minimis exception" to statutory requirement in patent law).

A plaintiff who meets the definition of disability still must prove she is qualified to perform the essential functions of the job and that she was treated adversely in whole or in part due to her disability. Doyle v. Dep't of Human Servs., 824 A.2d 48, 54 (Me. 2003).