The Maine Human Rights Commission (MHRC) will consider at its May meeting a controversial proposed change to its regulations regarding what constitutes a “disability” under the Maine Human Rights Act. 

At issue are the differences in the statutory definitions of “disability” not in the Maine Human Rights Act and its federal counterpart, the Americans with Disabilities Act (ADA).  The particular focus is on a U.S. Supreme Court decision that defines how courts should initially determine whether an individual’s impairment qualifies for protection under the ADA. 

Specifically, the proposed rule would add the following provision regarding mitigating measures:  “the existence of a disability is determined without regard to whether its effect is or can be mitigated by measures such as medication, auxiliary aids, prosthetic devices, or other ameliorative treatment.”  This new language places Maine law directly opposite the 1999 United States Supreme Court decision in Sutton v. United Airlines, which found that the question of disability must take into account the effect of mitigating measures such as eye glasses, medicine, or other tools to help individuals overcome the effect of their impairment. 

The Commission held a public hearing on the proposed change in February, at which five representatives of the business community provided testimony in opposition to the proposed amendment.  Five other individuals, four of whom were plaintiff’s lawyers, provided testimony in favor of the proposed amendment.  The Commission subsequently accepted further written comments from interested parties. 

At its April meeting, the Commissioners heard staff counsel strongly recommend approval of the new regulation.  Only Commissioner Kristin Aiello commented on the proposed regulation, and she strongly supported it.

Should the Commission go ahead and approve the rules change, Maine would join a very small minority of states who have elected not to follow federal precedent in order to provide a more expansive view of disability discrimination protection.