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By TOM BELL, Staff Writer Tuesday, January 2, 2007

The new, more liberal definition of "disability" recently adopted by the Maine Human Rights Commission has many employers worried. They say disgruntled workers who suffer from common ailments, like bad acne or high blood pressure, will now be able to sue them for discrimination.

Attorneys who represents workers, though, welcome the change. They say the old rules were so narrow that people with serious health problems, like breast cancer or diabetes, had no legal protection when their employers fired them.

The two sides will fight it out in Augusta this session when the Legislature takes up a bill that aims to align Maine's definition with the more limited one in the federal Americans with Disabilities Act.

The commission adopted the new rules in response to a Maine Supreme Court ruling in April that effectively struck down the old rules on grounds that they departed too much from state law.

The Legislature in 1974 intended to include people with a wide range of physical and mental disabilities when it added the disabled to the class of people who deserve civil rights protection under the Maine Human Rights Act, the court concluded in its 4-3 decision.

The commission's new rules define disability as "any disability, infirmity, malformation, disfigurement, congenital defect, or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness."

The rules say that more ordinary conditions, such as the flu or minor cuts and bruises, would not qualify.

The rules help both employers and workers because they provide more guidance about what kind of impairments qualify as a disability, said Patricia Ryan, executive director of the Maine Human Rights Commission, the state agency charged with enforcing Maine's anti-discrimination laws.

But lawyers on both sides agree on one thing: The new rules represent a big change from the status quo.

Civil rights laws were established to protect people who had historically suffered from job discrimination, said James Erwin, a Portland lawyer who represents management. But the new definition of disability lowers the threshold too much, he said.

"I dare say that people who break their leg playing softball don't have a history of unfair treatment," he said.

He said the new rules effectively trump the Family Medical Leave Act. He said employers will end up granting more workers extended periods of time off.

But David Webbert, an Augusta lawyer who represents workers, said the rules mean less court time spent deciding whether someone is really disabled and more on whether discrimination took place.

The old rules put workers in a no-win situation, he said. First, they had to prove that their health problem could meet the stringent definition of disability. That meant showing that their disability created "a substantial limitation on a major life activity," such as walking or seeing. If they passed that test, they then had to prove that they were nevertheless capable of doing their job if their employer could make a reasonable accommodation. He said most workers just gave up.

When workers sue companies, their cases often end up in federal court, where rulings are made under both state and federal anti-discrimination laws. In recent years, federal judges have tightened their interpretation of who has a right to sue under the federal law. Recent decisions have found that people with HIV, diabetes and breast cancer do not qualify as disabled.

Because the federal definition of disability was similar to the definition used by the Maine Human Rights Commission, the federal judges began interpreting Maine's disability law in an increasingly strict way, too, Webbert said.

"The bad federal rulings were polluting the state law and making it much less effective," he said.

He said Maine now joins 10 other states, including California, New York and Connecticut, that have a broader definition of disability than the federal law.

The landmark suit that led to the change involved a Gorham man with heart disease.

Stanley Whitney, 69, who managed the Tire and Lube Express operation at the Wal-Mart in Windham, argued that his supervisors insisted his job required a 48- to 52-hour workweek. They took away his high-paying position when doctors told him that working more than 45 hours a week would put stress on his heart.

The law court ruled that Whitney did not have to meet the high standard for physical disability outlined in federal law in order to bring his case against Wal-Mart. After the ruling, the case went forward in federal court, and Wal-Mart and Whitney eventually reached a cash settlement.

The law court's ruling upends human-resources policies that have been in place for more than 20 years, and now all Maine companies are faced with the uncertainty of a new legal environment, said Alan Burton, vice president of human resources at Cianbro, which employs 1,350 people in Maine.

While the vast majority of Maine workers will not abuse the new rules, he said, he's worried that dishonest workers facing disciplinary action will use an ordinary illness to thwart management. Those workers will hire lawyers, and companies will respond by hiring their own lawyers.

The end result, he said, is more costly litigation, and Maine companies will have a harder time managing their work force and staying competitive with companies in other states that don't have such liberal protection.

He said lawyers who make their living representing workers are driving the issue. "It's a group of people who have a personal agenda here," he said. "It's how they make their money."

It's true that some workers will take advantage of the new rules, Whitney conceded. But he said employers have taken advantage of the law, too.

"I understand why, from the business standpoint, some employers don't like it," he said. "They had free reign as far as how the law was interpreted. Now they are going to be a lot more careful and show some common sense in how they view their employees."

Wal-Mart could not be reached for comment.

Mark Franco, the lawyer who represented Wal-Mart in the case, called the commission's new rules absurd. He said the Legislature needs to fix the problem by changing the law to align it with federal law.

That's the goal of a bill submitted by Sen. Peter Mills, R-Cornville. Mills said employers are anxious and confused, and the Legislature needs to provide clarity.

He believes House Democrats will likely block any changes to the law. But Rep. Janet Mills, a Farmington Democrat who sits on the Legislature's Judiciary Committee, where the bill will be heard, said she doesn't see it as a partisan issue. She said there are plenty of moderate Democrats who would be concerned with how the new rules affect small businesses.

Robert Moore, an executive at Dead River Co., said the new rules are bad for the state's business climate.

"Business guys don't like uncertainty. They don't like inconsistency," he said. "I hope that Maine can decide that this is an area where we don't have to be unique from the rest of the country."