In our last issue, we informed readers about the impending decision from the Maine Law Court regarding the definition of disability under the Maine Human Rights Act. That decision was issued on April 11.

Because of the inconsistency between the definition of disability in the Maine Human Rights Act (MHRA) and the regulations interpreting the Act, the Federal District Court in Maine certified two questions to the Maine Law Court: 1) does the MHRA definition of disability require a showing of a substantial limitation on a major life activity as does federal law; and 2) is the definition of disability found in the MHRA regulations invalid because it requires a showing of a substantial limitation on a major life activity?

In a 4-3 decision, the majority of the Court answered these questions in Whitney v. Wal-Mart Stores, Inc. as follows: 1) no, the MHRA definition of disability does not require a showing of a substantial limitation on a major life activity; and 2) yes, the definition of disability found in the regulations is invalid because it requires a showing of substantial limitation. The reasoning for these decisions was based on principles of statutory construction. It is only when statutory language is unclear that you look beyond it to agency interpretation, such as regulations. The majority opinion also noted that an agency cannot create ambiguity in interpretation of a statute where none otherwise exists. Since the language of the MHRA in this situation is clear, there was no need to look to the regulations for clarification. The majority also rejected policy arguments by Wal-Mart and the Chamber of Commerce about the potential cost to businesses if the broader definition prevails. It noted that such arguments are better directed to the executive and Legislative branches.

The dissent argued the definition of disability in the Act is ambiguous and that the court should defer to the Human Rights Commission's reasonable interpretation as set forth in the regulations. One of the primary disputes between the majority and dissenting opinions is that fact that the Act's definition does contain some language about substantial limitation. The majority rejected an argument that that language modified the term "physical or mental disability". Instead, the majority concluded, based on the language of the definition, there are actually three different ways for an individual to be "disabled" under the Act: first, a person with "any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness"; second, "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…"; and third, "any other health or sensory impairment that requires special education, vocational rehabilitation or related service."

The immediate question for most employers is whether this decision will have a floodgate effect on the number of claims being filed. It may not, since this issue has been around for a while and some employees had already filed claims based on the broader definition. It may also elicit a response from the Legislature. In the meantime, employers should be aware of the ways in which an employee or applicant might be considered to be a person with a disability and act accordingly in all aspects of employment from hiring to responding to requests for reasonable accommodations.

CORRECTION: Please note the following correction to the Winter 2006 article on this subject. That article mistakenly said the U.S. Supreme Court has held that mitigating measures cannot be considered in the initial evaluation of whether an individual is a person with a disability. The article should have stated that under federal law an employer can look to the employee's use of mitigating measures to decide whether the person was an individual with a disability.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.