It is not often that the Law Court interprets the Maine
Human Rights Act (MHRA) differently from its federal counterparts. In a recent
decision, though, the Law Court did exactly that – it held that the standard
for evaluating claims of disparate impact age discrimination under the MHRA is
different from the standard under the federal Age Discrimination in Employment
Act.
Scamman v. Shaw's Supermarkets, Inc.
Unlike disparate treatment claims, which are based on an
employer’s alleged intentional discrimination against an individual based on a
protected status, disparate impact claims arise where an employee alleges that
he or she is a member of a protected class that is disproportionately affected
by a practice of the employer. In Scamman v. Shaw’s Supermarkets, Inc., several employees filed a charge of
discrimination with the Maine Human Rights Commission alleging that they were
terminated by Shaw’s as part of a reduction in force that disproportionately
affected older employees.
Shaw’s explained the reduction in force
was necessitated by cost-cutting business imperatives. The investigator
analyzed the employees’ claim using a burden-shifting framework that federal
courts apply to disparate impact claims under Title VII and which requires an
employer to produce evidence that its practice is justified by “business
necessity.” Ultimately, the Commission determined that there were
reasonable grounds to believe that Shaw’s discriminated against the employees
based on a disparate impact theory, and the Commission voted unanimously to
adopt the investigator’s analysis and recommendation. The employees then sued in Superior Court, but Shaw’s
removed the case to the U.S. District Court.
Once there, Shaw’s raised a
threshold issue: is the “business necessity” framework the correct standard to
apply to disparate impact age discrimination claims under the MHRA, or does the
“reasonable factor other than age” (RFOA) standard from the ADEA apply
instead? This was a threshold issue because the parties agreed that if the
RFOA standard applied, Shaw’s would be entitled to judgment as a matter of
law. Unlike the “business necessity” framework, the RFOA standard does
not inquire into whether an employer’s practice constitutes a business
necessity; rather, once an employee shows evidence of a policy or practice with
a disparate impact, an employer simply must show that the challenged practice
is based on a reasonable factor other than age. The result is that the
scope of disparate impact liability is narrower under the ADEA than it is under
Title VII.
Because there was no controlling precedent, the District
Court certified to the Law Court the question of which standard applies to
disparate impact age discrimination claims under the MHRA. After
reviewing the text of the MHRA and finding it unclear, the Law Court deferred
to the Commission’s interpretation of the statute and its conclusion that the
“business necessity” standard is the applicable standard. The Law Court
found that this was a reasonable interpretation based on the legislative
history of the MHRA and the fact that, despite being amended multiple times,
the statute has never contained an RFOA provision like the ADEA. And,
while the Law Court acknowledged that it often looks to federal law to
interpret the MHRA, it observed that it has done so only when the “federal and
state laws are substantially identical,” which the Law Court found was not the
case here given the absence of any RFOA provision in the MHRA.
Take home for Employers
Where policies are challenged under the MHRA on the
grounds that they disproportionately affect older workers, it is now clear that
employers seeking to justify those policies will not be able to do so simply by
showing that the impact is based a reasonable factor other than age. What
remains to be seen is the effect that this decision may have on other potential
differences between the MHRA and the ADEA, such as the applicable standard for
causation – “mixed-motive” or “but-for” – in cases of intentional age
discrimination. The take-home for employers is that claims for disparate impact age discrimination under the MHRA will now be evaluated using a burden-shifting “business necessity” framework, not the more generous “reasonable factor other than age” standard under the ADEA. Stay tuned.
