Governor’s Panel Supports Maine Human Rights Commission

In response to concerns about the Human Rights Commission, Governor LePage, by Executive Order, established the Maine Human Rights Commission Review Panel on October 14, 2015. The Panel issued its Findings on September 27, 2016. The Review Panel consisted of eight members including an attorney who represents respondents before the MHRC, an attorney who represents complainants before the MHRC, a person recommended by the National Federation of Independent Businesses, a person recommended by the Maine Apartment Owners and Managers, a person recommended by Pine Tree Legal, a person with working knowledge of and familiarity with best administrative investigative practices and one person recommended by the Maine Human Rights Commission. The purpose of the Review Panel was to conduct a review of the structure and operation of the Maine Human Rights Commission to identify factors which may cause the perception of prejudice against respondents and bias in favor of complainants and to identify rules and practices that are unduly burdensome or unfair and to issue a report with recommendations.

After the Review Panel met thirteen times and did an extensive review of the Commission itself, its rules and regulations and interviewed Commissioners and staff, the Panel “unanimously agreed that the MHRC, its Commissioners and its staff are not actually prejudiced, biased or unfair towards respondents of complainants”. It went on to find that the vast majority of cases were heard or decided in favor of respondents and that there is no evidence that there is a bias or prejudice against either complainants or respondents. The Panel found that the MHRC was “devoted to its mission and desired to be fair and unbiased to all its parties”. The Panel agreed that the powers and duties of the Maine Human Rights Commission under the Maine Human Rights Act should be sufficient, well-staffed, well-funded and well-trained. The Panel made a series of recommendations including:

1. Hire a management consultant/efficiency expert. 
2. Hire more investigators to investigate. 
3. Use intake specialists. 
4. Increase education and training for MHRC staff and Commissioners. 
5. Increase number of administrative staff. 
6. Modernize computer and technology systems. 
7. Expand mediation program. 
8. Establish a dual track system and consider changing state law to require 180 days before right to sue letter issued. 
9. Improve and streamline requests from the MHRC for information, discovery and document requests. 
10. Increase and improve public relations and outreach. 
11. Commissioners should be appointed in a timely fashion. 
12. Filing fees. 
13. Increase the MHRC’s budget. 

All in all, this report established what the attorneys practicing in this area know to be the case. The Human Rights Commission does the best that it can on a very limited budget and is fair to the parties that appear before it, even though the process takes far too long.

Interview with new MHRC Counsel Barbara Archer Hirsch

On October 7, 2013, Barbara Archer Hirsch took over the position of Commission Counsel from John P. Gause at the Maine Human Rights Commission, after winding down a long career in private practice.  Born in Portland, Barbara attended Harvard University and the University of Maine Law School.  Following law school, Barbara clerked for Judge Conrad K. Cyr of the United States Court of Appeals for the First Circuit.  We caught up with her shortly after she settled into her new job:

For our followers not familiar with your background, outline your bio for us.

I’m a native Mainer – I grew up in Portland, and graduated from Deering High School.  I left for Harvard knowing two things: I would never live anyplace smaller than Boston, and I was going to be a doctor.  As you can see, things didn’t exactly go according to plan!  I moved back to my hometown, and spent a couple of years teaching nursery school and figuring out what I really wanted to do.  That led to law school, which I loved.  I clerked for Judge Cyr right after law school, and then entered private practice, where I spent the next 15 years focusing mostly on employment law and civil rights issues.  On a personal level, I have two wonderful children from my first marriage, and am a blissful newlywed – I was remarried this summer.

So what's your first month as Commission Counsel been like?

It’s been incredibly busy!  I’ve been learning all of our processes from start to finish, and have developed incredible respect for our five investigators.  I remember grumbling about Investigator’s Reports now and then in private practice, particularly with regard to how long it took to get a decision after filing a charge.  Now that I know what goes into them, I regret being so quick to judge!  I started in my position just as the Commission published a proposed rewrite of its employment regulation, so I’ve also gotten a quick lesson in legislative rulemaking.  I recently served at my first Commission meeting.  I started that day searching for a copy of Robert’s Rules of Order and ended it by running the public hearing on our new proposed rules.  I’ve been to dozens of Commission meetings over the years, but I can tell you now that the experience of representing the Commission itself is nothing like the experience of representing a client in front of the Commission.  I need to know all the arguments that the parties might make in any case on the agenda – we just published the December agenda, which has 51 cases on it – and be prepared to answer legal questions about any of them.  It’s demanding, challenging, exhilarating . . . and I’m going to sound a little sappy here, but it’s an honor to be given the chance to do the work, and I hope to rise to the occasion.

Any surprises?

I was surprised at how different the Commission’s work is behind the scenes.  The amount of time, effort, and caring invested in each case and in trying to reach a just result is a bit humbling.  I was also surprised by the range of issues that can come up in any given day – I thought I had seen a lot in private practice, but there are new issues and twists to the Maine Human Rights Act that come across my desk on a very regular basis.

How you do hope to leverage your experience in private practice in your new position?

I practiced in front of the Commission throughout my time in private practice, so I understand how the process is perceived by outside counsel, as well as by Complainants and Respondents.  I hope to use my knowledge to improve our processes and our work product, and make them more user-friendly.  I represented both Complainants and Respondents in employment discrimination cases while in private practice, so I think I have a better perspective on the issues faced by all of our constituents, as opposed to a lawyer who worked only for employers or only for employees.  Of course, employment is just one piece of what I do now, so I will need to translate that experience into the housing and public accommodation arenas as well.

Do you have any areas of interest that you're especially interested in or committed to?

I’ll mention just a couple.  The first is LBGT issues.  There have been huge strides made in attaining equal treatment for gay and lesbian individuals, but there is still a lot of work to be done to educate employers and public accommodations on what is and isn’t legal.  The transgender population, in particular, remains tremendously vulnerable.  We’re very lucky to have just received a grant which will allow our Executive Director to do outreach programs throughout the state focusing on LGBT issues in fair housing, and I’m looking forward to seeing that project move forward. We also received a second grant for our Executive Director to do outreach to Mainers who have limited English proficiency; this is a fantastic opportunity to reach underserved people who are part of our communities. Another area I feel strongly about is in the area of disability discrimination: I feel that “invisible” disabilities - like depression, PTSD, or traumatic brain injury, all of which are common among our returning veterans - are still incredibly misunderstood, which results in discriminatory treatment. Again, it’s an area where education is necessary, both for individuals struggling with these disabilities and for those who work with them.

What regulatory developments can be expected from the Commission over the next 12 months?

As I mentioned, we just held the public hearing on our proposed new rules.  We’ve proposed a complete repeal and replace of the employment regulation, which updates the regulations and incorporates concepts from our federal counterparts where our laws are substantially equivalent.  The other new rule we proposed was an amendment to our procedural rule which deals with mediation.  We’re eager to move our mediation program forward, and the new rule allows us to do that.  We’ll be charging participants a small fee in order to cover the cost of the mediator, although there will be waivers available for parties who are unable to pay even the modest charge.  It’s a great opportunity to settle disputes early on, with highly trained and professional mediators. Our program offers this benefit at a bargain price compared to what private mediators charge, and we hope people will take advantage of it.