By Michael G. Messerschmidt, Esq.

As anticipated, the Maine Human Rights Commission (MHRC) voted unanimously at its May meeting to change the definition of disability in its regulations promulgated pursuant to the Maine Human Rights Act.  At issue was the difference in the statutory definitions of “disability” in the Maine Human Rights Act and its federal counterpart, the Americans With Disabilities Act (ADA).  The particular focus was on a U. S. Supreme Court decision defining how courts should initially determine whether an individual’s impairment qualifies for protection under the ADA.

Maine’s new regulation now states that “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.”  The new language places Maine directly opposite the 1999 United States Supreme Court decision in Sutton v. United Airlines, in which the Court stated the question of disability must take into account the effect of mitigating measures such as eyeglasses, medicine, or other tools to help individuals overcome the effect of their impairment.

There was little to no debate on this topic among the Commission members at the May meeting.  The Commission’s staff counsel took the position that the Commission had been deciding cases without regard to mitigating measures for the past 30 years, and he opined that the proposed change would not lead to an influx of new cases being brought before it.  Representatives of the business community had provided testimony in opposition to the proposed amendment at an earlier public hearing and in written comments to the Commission.  Maine now joins 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.