§4572. Unlawful employment discrimination








1. Unlawful employment. 
It is unlawful employment discrimination, in violation of this Act, except when
based on a bona fide occupational qualification:





A. For any employer to fail or refuse to hire or otherwise discriminate against any
applicant for employment because of race or color, sex, sexual orientation, physical
or mental disability, religion, age, ancestry or national origin, because of the applicant's
previous assertion of a claim or right under former Title 39 or Title 39-A or because
of previous actions taken by the applicant that are protected under Title 26, chapter
7, subchapter 5-B; or, because of those reasons, to discharge an employee or discriminate
with respect to hire, tenure, promotion, transfer, compensation, terms, conditions
or privileges of employment or any other matter directly or indirectly related to
employment; or, in recruiting of individuals for employment or in hiring them, to
utilize any employment agency that the employer knows or has reasonable cause to know
discriminates against individuals because of their race or color, sex, sexual orientation,
physical or mental disability, religion, age, ancestry or national origin, because
of their previous assertion of a claim or right under former Title 39 or Title 39-A
or because of previous actions that are protected under Title 26, chapter 7, subchapter
5-B;



(1) This paragraph does not apply to discrimination governed by Title 39-A, section
353; [2005, c. 10, §11 (AMD).]













B. For any employment agency to fail or refuse to classify properly, refer for employment
or otherwise discriminate against any individual because of race or color, sex, sexual
orientation, physical or mental disability, religion, age, ancestry or national origin,
because of the individual's previous assertion of a claim or right under former Title
39 or Title 39-A or because of previous actions taken by the individual that are protected
under Title 26, chapter 7, subchapter 5-B; or to comply with an employer's request
for the referral of job applicants if a request indicates either directly or indirectly
that the employer will not afford full and equal employment opportunities to individuals
regardless of their race or color, sex, sexual orientation, physical or mental disability,
religion, age, ancestry or national origin, because of previous assertion of a claim
or right under former Title 39 or Title 39-A or because of previous actions that are
protected under Title 26, chapter 7, subchapter 5-B; [2005, c. 10, §11 (AMD).]










C. For any labor organization to exclude from apprenticeship or membership or to deny
full and equal membership rights to any applicant for membership because of race or
color, sex, sexual orientation, physical or mental disability, religion, age, ancestry
or national origin, because of the applicant's previous assertion of a claim or right
under former Title 39 or Title 39-A or because of previous actions taken by the applicant
that are protected under Title 26, chapter 7, subchapter 5-B; or, because of those
reasons, to deny a member full and equal membership rights, expel from membership,
penalize or otherwise discriminate with respect to hire, tenure, promotion, transfer,
compensation, terms, conditions or privileges of employment, representation, grievances
or any other matter directly or indirectly related to membership or employment, whether
or not authorized or required by the constitution or bylaws of that labor organization
or by a collective labor agreement or other contract; to fail or refuse to classify
properly or refer for employment or otherwise discriminate against any member because
of race or color, sex, sexual orientation, physical or mental disability, religion,
age, ancestry or national origin, because of the member's previous assertion of a
claim or right under former Title 39 or Title 39-A or because of previous actions
taken by the member that are protected under Title 26, chapter 7, subchapter 5-B;
or to cause or attempt to cause an employer to discriminate against an individual
in violation of this section, except that it is lawful for labor organizations and
employers to adopt a maximum age limitation in apprenticeship programs, if the employer
or labor organization obtains prior approval from the Maine Human Rights Commission
of any maximum age limitation employed in an apprenticeship program. The commission
shall approve the age limitation if a reasonable relationship exists between the maximum
age limitation employed and a legitimate expectation of the employer in receiving
a reasonable return upon the employer's investment in an apprenticeship program.
The employer or labor organization bears the burden of demonstrating that such a relationship
exists; [2005, c. 10, §11 (AMD).]










D. For any employer, employment agency or labor organization, prior to employment or
admission to membership of any individual, to:



(1) Elicit or attempt to elicit information directly or indirectly pertaining to
race or color, sex, sexual orientation, physical or mental disability, religion, age,
ancestry or national origin, any previous assertion of a claim or right under former
Title 39 or Title 39-A or any previous actions that are protected under Title 26,
chapter 7, subchapter 5-B;






(2) Make or keep a record of race or color, sex, sexual orientation, physical or
mental disability, religion, age, ancestry or national origin, any previous assertion
of a claim or right under former Title 39 or Title 39-A or any previous actions that
are protected under Title 26, chapter 7, subchapter 5-B, except under physical or
mental disability when an employer requires a physical or mental examination prior
to employment, a privileged record of that examination is permissible if made and
kept in compliance with this Act;






(3) Use any form of application for employment, or personnel or membership blank
containing questions or entries directly or indirectly pertaining to race or color,
sex, sexual orientation, physical or mental disability, religion, age, ancestry or
national origin, any previous assertion of a claim or right under former Title 39
or Title 39-A or any previous actions that are protected under Title 26, chapter 7,
subchapter 5-B. This section does not prohibit any officially recognized government
agency from keeping records permitted to be kept under this Act in order to provide
free services to individuals requesting rehabilitation or employment assistance;






(4) Print, publish or cause to be printed or published any notice or advertisement
relating to employment or membership indicating any preference, limitation, specification
or discrimination based upon race or color, sex, sexual orientation, physical or mental
disability, religion, age, ancestry or national origin, any previous assertion of
a claim or right under former Title 39 or Title 39-A or any previous actions that
are protected under Title 26, chapter 7, subchapter 5-B; or






(5) Establish, announce or follow a policy of denying or limiting, through a quota
system or otherwise, employment or membership opportunities of any group because of
the race or color, sex, sexual orientation, physical or mental disability, religion,
age, ancestry or national origin, the previous assertion of a claim or right under
former Title 39 or Title 39-A or because of previous actions that are protected under
Title 26, chapter 7, subchapter 5-B, of that group; or [2005, c. 10, §12 (AMD).]













E. For an employer, employment agency or labor organization to discriminate in any
manner against individuals because they have opposed a practice that would be a violation
of this Act or because they have made a charge, testified or assisted in any investigation,
proceeding or hearing under this Act. [1991, c. 99, §7 (AMD).]







[
2005, c. 10, §§11, 12 (AMD)
.]








2. Unlawful discrimination against qualified individual with a disability. 
A covered entity may not discriminate against a qualified individual with a disability
because of the disability of the individual in regard to job application procedures,
the hiring, advancement or discharge of employees, employee compensation, job training
and other terms, conditions and privileges of employment. A qualified individual
with a disability, by reason of that disability, may not be excluded from participation
in or be denied the benefits of the services, programs or activities of a public covered
entity, or be subjected to discrimination by any such covered entity relating to job
application procedures, the hiring, advancement or discharge of employees, employee
compensation, job training and other terms, conditions and privileges of employment.





A. The prohibition of this subsection against discrimination includes medical examinations
and inquiries. [1995, c. 393, §13 (NEW).]










B. Except as provided in paragraph C, a covered entity may not conduct a medical examination
or make inquiries of a job applicant as to whether the applicant is an individual
with a disability or as to the nature or severity of the disability. A covered entity
may make preemployment inquiries into the ability of an applicant to perform job-related
functions. [1995, c. 393, §13 (NEW).]










C. A covered entity may require a medical examination after an offer of employment
has been made to a job applicant and prior to the commencement of the employment duties
of the applicant and may condition an offer of employment on the results of the examination,
if:



(1) All entering employees are subjected to the same examination regardless of disability;





(2) Information obtained regarding the medical condition or history of the applicant
is collected and maintained on separate forms and in separate medical files and is
treated as a confidential medical record, except that:




(a) Supervisors and managers may be informed regarding necessary restrictions on
the work or duties of the employee and necessary accommodations;







(b) First aid and safety personnel may be informed, when appropriate, if the disability
might require emergency treatment; and







(c) Government officials investigating compliance with this Act are provided relevant
information on request; and









(3) The results of the examination are used only in accordance with this Act. [1995, c. 393, §13 (NEW).]













D. A covered entity may not require a medical examination and may not make inquiries
of an employee as to whether the employee is an individual with a disability or as
to the nature or severity of the disability, unless the examination or inquiry is
shown to be job-related and consistent with business necessity. [1995, c. 393, §13 (NEW).]










E. A covered entity may conduct voluntary medical examinations, including voluntary
medical histories, that are part of an employee health program available to employees
at that work site. A covered entity may make inquiries into the ability of an employee
to perform job-related functions. Information obtained under this paragraph regarding
the medical condition or history of an employee is subject to the requirements of
paragraph C, subparagraphs (2) and (3). [1995, c. 393, §13 (NEW).]










F. For purposes of this subsection, a test to determine the illegal use of drugs may
not be considered a medical examination.



(1) A covered entity:



(a) May prohibit the illegal use of drugs and the use of alcohol at the workplace
by all employees;







(b) May require that employees may not be under the influence of alcohol or be engaging
in the illegal use of drugs at the workplace;







(c) May require that employees behave in conformance with the requirements established
under the federal Drug-free Workplace Act of 1988, 41 United States Code, Section
701 et seq.; and







(d) May hold an employee who engages in the illegal use of drugs or who is an alcoholic
to the same qualification standards for employment or job performance and behavior
to which that entity holds other employees, even if any unsatisfactory performance
or behavior is related to the drug use or alcoholism of the employee; provided that
an employer shall make reasonable accommodation to an alcoholic or drug user who is
seeking treatment or has successfully completed treatment. [1995, c. 393, §13 (NEW).]













[
1995, c. 393, §13 (NEW)
.]





SECTION HISTORY

1971, c. 501, §1 (NEW).
1973, c. 347, §6 (AMD).
1973, c. 705, §6 (AMD).
1975, c. 355, §6 (RPR).
1975, c. 358, §§7-10 (AMD).
1975, c. 770, §33 (RPR).
1977, c. 565, (AMD).
1987, c. 55, §1 (AMD).
1987, c. 559, §B2 (AMD).
1987, c. 782, §1 (AMD).
1989, c. 251, §1 (AMD).
1991, c. 99, §7 (AMD).
1991, c. 885, §E7 (AMD).
1991, c. 885, §E47 (AFF).
1995, c. 393, §§12,13 (AMD).
2005, c. 10, §§11,12 (AMD).