Employment Discrimination FAQ

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

Section 1981 of the Civil Rights Act of 1866 (1981), which prohibits employment discrimination on the basis of race;

Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

Americans with Disabilities Act of 1990, as amended (ADA), which prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

Rehabilitation Act of 1973 (Rehab Act), which prohibits discrimination against qualified individuals with disabilities who work in the federal government, as well as individuals who work for private sector employers who receive a certain amount in federal funds;

Family Medical Leave Act (FMLA), which provides eligible employees with 12 weeks of medical leave per year for their own serious health conditions and those of immediate family members and prohibits discrimination based on the use of that leave;

Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

Fair Labor Standards Act (FLSA), which establishes minimum wage and overtime protections and prohibits retaliation against employees who report violations of the law; and

Civil Rights Act of 1991 (CRA), which, among other things, provides monetary damages in cases of intentional employment discrimination.

Other federal laws that are industry specific also prohibit employment discrimination. Here are some examples:

Surface Transportation Assistance Act (STAA), which prohibits retaliation against drivers, mechanics, freight handlers and certain other employees in the transportation industry for reporting safety violations;

False Claims Act (FCA), which prohibits retaliation against individuals who report their employers for defrauding the government;

Sarbanes-Oxley Act of 2002 (SOX), which prohibits retaliation against individuals who report accounting fraud by publicly traded companies and their subsidiaries; and

Uniformed Services Employment and Re-Employment Rights Act (USERRA), which provides job protection for uniformed service members who voluntarily undertake or are called up for military service and prohibits discrimination against past and present uniformed service members.

Maine Human Rights Act (MHRA), the state analogue to Title VII, the ADA, and ADEA, which prohibits employment discrimination on the basis of race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin;

Maine Whistleblower Protection Act (WPA), which prohibits retaliation against employees who, acting in good faith, report what they reasonably believe to be a violation of law, or condition that poses a threat to their own safety or the safety of others;

Maine Family Medical Leave Requirement Law (FMLR), the state analogue to the Family Medical Leave Act, which provides eligible employees with 10 weeks of medical leave every 2 years for their own serious health condition or that of an immediate family member and prohibits discrimination based on the use of that leave;

Maine Wage and Hour Law, which establishes minimum wage and overtime requirements and prohibits retaliation against employees who report violations of the law; and

Maine Workers’ Compensation Act (WCA), which prohibits discrimination against employees who assert a claim for benefits resulting from an injury at work.

The above laws prohibit discrimination in any aspect of:

• hiring and firing;
• compensation, assignment, or classification of employees;
• transfer, promotion, layoff, or recall;
• job advertisements or recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• pay, retirement plans, and disability leave; or
• other terms and conditions of employment.

They also prohibit:

harassment on the basis of race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin, or;

retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;

employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin; and

denying employment opportunities to a person because of marriage to, or association with, an individual of a certain race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin.

No. Maine does not have a law against bullying in the workplace. An employee who is being bullied in the workplace must still show that she is being bullied because of a protected characteristic (race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin) in order to pursue a claim.

At-will employment means that, absent a union contract or individual employment contract, an employer is free to terminate an employee at any time and for any reason, even if it is unfair, as long as the reason is not discriminatory.

No. Maine does not have a law against wrongful termination and Maine courts will not review an employer’s personnel decision to determine whether it was right or wrong, fair or unfair. However, in some cases, wrongful termination can be used as evidence of an unlawful, discriminatory motive.

No. Most employers reserve the right in the handbook to skip disciplinary steps and proceed straight to termination if it deems the employee’s violation egregious enough. However, in some cases, deviation from established procedures can be used as evidence of an unlawful, discriminatory motive.

No. Maine does not have a law requiring employers to terminate employees in person. An employer may terminate an employee by phone, letter, email, or any reasonable means of communication.

Yes. Under Maine law, a terminated employee is entitled to the reason for termination in writing within 15 days of requesting it. The terminated employee should send the request to the employer by certified letter. An employer who fails to respond is liable for monetary penalties. In some cases, an employer’s failure to respond can be used as evidence of an unlawful, discriminatory motive.

Yes. Under Maine law, a terminated (or current) employee is entitled to review his or her personnel file within 10 days of requesting it. A personnel file includes, but is not limited to, any formal or informal employee evaluations, compensation and benefit information, and medical information. An employer who fails to respond is liable for monetary penalties. In some cases, an employer’s failure to respond can be used as evidence of an unlawful, discriminatory motive.

Any employee who feels he or she has been discriminated against because of race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin, or because of a report of a reasonable belief that the employer is violating the law or engaging in a practice that poses a threat to their own safety or the safety of others can file a Charge of Discrimination with the Maine Human Rights Commission (MHRC), the State agency charged with enforcing Maine’s anti-discrimination laws. The MHRC has a work-sharing agreement with the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal anti-discrimination laws. The Charge of Discrimination must be filed within 300 days of the discriminatory act and must be notarized. The Charge should briefly set forth the facts and circumstances surrounding the alleged discrimination. The employee must exhaust the MHRC process before filing a complaint in court.

Any employee who feels he or she has been discriminated against because of a work injury or because he or she asserted a claim for benefits under the Workers’ Compensation Act must file a Petition to Remedy Discrimination and/or Petition for Reinstatement with the Workers’ Compensation Board.

The MHRC will notify the employer that a Charge has been filed and will send the employer a list of questions to answer and documents to produce. It typically takes the MHRC 15 days to notify the employer which then has 30 days to respond. The employee then has an opportunity to respond to the employer’s submission. At that point, the MHRC assigns the case to an Investigator who will either schedule an Issues and Resolution Conference or Fact Finding Conference or decide the case based on the parties’ written submissions. The Investigator will make a preliminary finding of whether or not there are reasonable grounds to believe unlawful discrimination has occurred. If the Investigator issues a “reasonable grounds” finding, the MHRC will attempt to mediate the case. If the Investigator issues a “no reasonable grounds” finding, he will recommend that the MHRC dismiss the case. Either party can request review of the Investigator’s decision by the MHRC panel.

There are federal and state laws that prohibit employers from retaliating against employees who engage in protected activity which includes filing a Charge of Discrimination with the MHRC or EEOC. If an employer terminates an employee who files a Charge of Discrimination, the employee can add retaliation to his claims to be decided by the MHRC and, ultimately, the court.

The MHRC must decide the case one way or the other within 2 years. Complex cases often require thorough investigation which can take a long time. However, once the case has been in the MHRC for 180 days, an employee who wants to go directly to court can do so by requesting a “right to sue letter.”

Maine Employee Rights Group files cases in the United States District Court for the District of Maine (in Portland and Bangor), in the Superior Courts of each county, and in the Business Court. The decision of where to file is often a strategic one, depending on the location of the parties, the nature of the claims, and other factors.

Once the complaint is filed and answered, the case enters the discovery phase. Each party will issue interrogatories, requests for production of documents, and in some cases requests for admission to be answered within a certain amount of time. Each party and any key witnesses will be deposed. Once the discovery phase is complete, the parties will typically take stock of the evidence and decide how best to proceed. In some cases, the parties attempt to resolve the case privately through negotiation or mediation. In other cases, the employer may file a motion for summary judgment asking the court to dismiss the case without a trial. In yet other cases, the parties proceed directly to trial.

A deposition is an out-of-court proceeding where the witness gives testimony under oath. It usually takes place in the opposing attorney’s office. A court reporter will transcribe the testimony, and after completing the deposition, the witness has the opportunity to review the transcript before signing it.

Mediation is an informal meeting of the parties with a third-party neutral, often another lawyer or retired judge, who attempts to facilitate settlement of the case. Mediation is confidential, meaning that statements made and positions asserted during mediation are not admissible in court. The mediator is not a judge and cannot force either party to settle, but may make recommendations or offer opinions about the relative strengths and weaknesses of the case. In state law cases, mediation is mandatory. In federal cases, it is optional.

The employee bears the burden of proof in an employment discrimination case. In order to prove discrimination, the employee must show that he or she was subjected to an adverse employment action because he or she is a member of a protected class or engaged in a protected activity. Direct evidence is the best proof of discrimination. It includes statements by managers or supervisors directly relating the adverse action to the employee’s protected class or activity (e.g. “We are letting you go because the company wants to project a younger image”). Most employers are too sophisticated and well-trained by their own attorneys to openly express such bias; therefore, most employees meet their burden of proof with circumstantial evidence. Circumstantial evidence includes differential treatment; derogatory remarks aimed at protected class status; deviation from established policies and practices; favoring of less qualified employees; weaknesses, inconsistencies, and implausibilities in the employer’s alleged reason for the adverse action; and close time proximity between the employer’s learning of the protected class status and the adverse employment action. The employee must provide enough evidence for a reasonable jury to conclude, on a more likely than not basis, that unlawful discrimination occurred.

The types of damages an employee can recover vary depending on the law. In most employment discrimination cases, the law provides for back pay, front pay, compensatory and punitive damages (subject to a cap based on the size of the employer), attorneys’ fees and costs. In 1981 and Rehab Act cases, there are no caps on compensatory and punitive damages. An employee can also obtain injunctive relief including reinstatement to his or her former position, an order requiring the employer to train its employees on anti-discrimination laws, an order requiring the employer to expunge negative material from the employee’s personnel file; and the like.

It varies from case to case depending on whether the parties attempt to resolve the case through negotiation or mediation, on whether the employer files a motion for summary judgment, and on the court in which the case is filed. Cases filed in federal court tend to move more quickly than cases filed in state court; however, certain jurisdictional elements must be met in order to file in federal court.

In order to be eligible for unemployment, an employee (1) must be medically able to work; (2) must not have been terminated for misconduct, defined under the statute as a “culpable breach of the employee's duties or obligations to the employer or a pattern of irresponsible behavior, which in either case manifests a disregard for a material interest of the employer;” and (3) must not have resigned, unless there was good cause attributable to the employment.

Talk to your attorney first, especially if you are pursuing a discrimination case in court and seeking monetary damages such as back pay or front pay. In some cases, courts have found that applying for Social Security Disability benefits is evidence of an inability to work which cuts off the employer’s liability for monetary damages. This is a strategy call that should be made in consultation with your attorney.

Under Maine law, an employer has a qualified privilege against a defamation claim by a former employee, meaning as long as the employer is truthful and does not act maliciously, it is immune from liability. The burden is on the affected employee to show that the former employer has provided false information and acted maliciously and can be difficult to meet. Oftentimes, as part of the settlement of an employment discrimination case, the parties will agree that the employer will provide a positive reference letter, or at the very least, will provide only dates of employment and positions held per company policy to eliminate any negative inference.

Yes. Disability discrimination is illegal so, in general, employers may not ask employees medical questions that might reveal the existence of a physical or mental disability. There are certain exceptions to this rule. Asking about an employee’s COVID-19 vaccination status is one of them. Discrimination laws do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated. It is not illegal for an employer to ask employees to provide documentation or other proof of vaccination. The Equal Employment Opportunity Commission (EEOC) has issued guidance the relationship between COVID-19 vaccination status and federal employment laws. The guidance can be viewed here.

Some people are unable to tolerate COVID-19 vaccines due to a disability. Some people have sincerely held religious beliefs that prevent them from getting vaccinated. Employees with disabilities and religious belief that prevent them from being vaccinated are entitled to reasonable accommodation.

If an employee who cannot be vaccinated for disability-related or religious reasons has the ability to perform the essential functions of their job from home, that might be a reasonable accommodation. Working in a separate office or location is another possibility.

If an employee who cannot be vaccinated for disability-related or religious reasons has a job that involves working near other employees and/or the public, they are entitled to continue working unless they pose a “direct threat” to the health and safety of others. Determining whether a direct threat exists can include the proportion of employees in the workplace who are already partially or fully vaccinated against COVID-19. It also includes the extent to which the employee has contact with non-employees whose vaccination status is probably unknown or who may be ineligible for the vaccine.

If you believe that your employee may have been violated you should consult a lawyer who specializes in employment law.