This bill attempts to reconcile the respective rights and responsibilities of individuals, business and organizations with respect to issues of sexual orientation and related matters.
You won't be fired for being beaten-up.
The bill amends the Maine Human Rights Act to prohibit discrimination in employment and housing against a person who has been the victim of a crime involving violence or the threat of violence and who reports that crime to law enforcement, provided that person was not involved in criminal conduct or misconduct relating to employment.
It's OK to be gay -- just don't ACT gay.
The bill amends the Maine Human Rights Act to prohibit discrimination in employment, housing, access to public accommodations and credit based on sexual orientation. The term "sexual orientation" is defined as the status or tendency toward homosexual or heterosexual attraction but the bill expressly does not protect any form of sexual behavior, conduct or life-style that may be related to a sexual orientation.
The bill exempts religious organizations and certain nonprofit organizations from the provisions of the Act relating to sexual orientation.
No Domestic Partner Benefits
The bill states that an employer or insurer is not required to provide insurance or other employee benefits to persons involved in homosexual relationships with an employee because the employer provides those benefits to employees' spouses and children and that employers are not required to engage in affirmative action or to keep employment records relating to sexual orientation.
The St. Patrick's Clause
The bill prohibits lawsuits under the Maine Human Rights Act that force participation of groups in privately sponsored events such as parades or conventions for the purpose of advocating a certain life-style based on sexual orientation.
Oops! Can't work here; can't live there.
The bill prohibits lawsuits based on sexual orientation discrimination against employers with less than 15 employees who are exempt from a lawsuit under the federal Americans with Disabilities Act and against landlords who own less than 5 rental units or who reside in the building in question.
The bill prohibits lawsuits to force any school to incorporate any particular view of homosexual orientation or behavior in its curriculum and expressly leaves these other decisions under the jurisdiction of local school boards and governing bodies of educational institutions.
Adoption? Foster Parenting? Not likely.
The bill does not require the placement of any child for adoption or foster care when one or more of the prospective parents is homosexual and any person or agency responsible for the placement of a child may lawfully consider the sexual orientation of the prospective parents.
Just in case Hawaii passes a same sex marriage law.
The bill expressly affirms public policy in support of marriage and makes clear that marriage is limited to one female and one male and that other forms of relationships or arrangements, whether or not sanctioned by another state, are not recognized in Maine as a marriage or marriage-equivalent.
Different age of consent for gays and lesbians
The bill makes it a crime of sexual abuse of a minor for a person to engage in a sexual act or sexual contact with a minor of the same gender who is more than 3 years younger than the actor. Current law applies only when the actor is at least 5 years older, if the minor is between 14 and 16 years of age and an adult of any age can lawfully engage in sexual activity with a minor who is 16 or 17 years of age.
Sec. 1. 5 MRSA §4553, sub-§§1-A and 9-A are enacted to read:
1-A. Crime victim status. "Crime victim status" means that a person has been a victim of criminal conduct involving violence or the threat of violence and has reported that criminal conduct to the appropriate law enforcement agency. "Crime victim status" does not include a person who was engaged in unlawful conduct at the time of, or in connection with, the criminal conduct.
9-A. Sexual orientation. "Sexual orientation" means the status, condition or tendency toward heterosexual or homosexual attraction or interest, but does not include any form of sexual behavior, conduct or life-style.
Sec. 2. 5 MRSA §4572, as amended by PL 1991, c. 885, Pt. E, §7, is further amended to read:
§4572. Unlawful employment discrimination
1. Unlawful employment. It is unlawful employment discrimination, in violation of this Act, except when based on a bona fide occupational qualification:
A. For any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of the applicant's previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions taken by the applicant that are protected under Title 26, chapter 7, subchapter V-B; or, because of those reasons, to discharge an employee or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment; or, in recruiting of individuals for employment or in hiring them, to utilize any employment agency that the employer knows or has reasonable cause to know discriminates against individuals because of their race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of their previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions that are protected under Title 26, chapter 7, subchapter V-B;
(1) This paragraph does not apply to discrimination governed by Title 39-A, section 353;
B. For any employment agency to fail or refuse to classify properly, refer for employment or otherwise discriminate against any individual because of race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of the individual's previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions taken by the individual that are protected under Title 26, chapter 7, subchapter V-B; or to comply with an employer's request for the referral of job applicants if a request indicates either directly or indirectly that the employer will not afford full and equal employment opportunities to individuals regardless of their race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions that are protected under Title 26, chapter 7, subchapter V-B;
C. For any labor organization to exclude from apprenticeship or membership or to deny full and equal membership rights to any applicant for membership because of race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of the applicant's previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions taken by the applicant that are protected under Title 26, chapter 7, subchapter V-B; or, because of those reasons, to deny a member full and equal membership rights, expel from membership, penalize or otherwise discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment, representation, grievances or any other matter directly or indirectly related to membership or employment, whether or not authorized or required by the constitution or bylaws of that labor organization or by a collective labor agreement or other contract; to fail or refuse to classify properly or refer for employment or otherwise discriminate against any member because of race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, because of the member's previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions taken by the member that are protected under Title 26, chapter 7, subchapter V-B; or to cause or attempt to cause an employer to discriminate against an individual in violation of this section, except that it is lawful for labor organizations and employers to adopt a maximum age limitation in apprenticeship programs, if the employer or labor organization obtains prior approval from the Maine Human Rights Commission of any maximum age limitation employed in an apprenticeship program. The commission shall approve the age limitation if a reasonable relationship exists between the maximum age limitation employed and a legitimate expectation of the employer in receiving a reasonable return upon the employer's investment in an apprenticeship program. The employer or labor organization bears the burden of demonstrating that such a relationship exists;
D. For any employer, employment agency or labor organization, prior to employment or admission to membership of any individual, to:
(1) Elicit or attempt to elicit information directly or indirectly pertaining to race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, any previous assertion of a claim or right under former Title 39 or Title 39-A or any previous actions that are protected under Title 26, chapter 7, subchapter V-B, except when a physical or mental disability is determined by the employer, employment agency or labor organization to be job related or when some privileged information is necessary for an employment agency or labor organization to make a suitable job referral;
(2) Make or keep a record of race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, any previous assertion of a claim or right under former Title 39 or Title 39-A or any previous actions that are protected under Title 26, chapter 7, subchapter V-B, except under physical or mental disability when an employer requires a physical or mental examination prior to employment, a privileged record of that examination is permissible;
(3) Use any form of application for employment, or personnel or membership blank containing questions or entries directly or indirectly pertaining to race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, any previous assertion of a claim or right under former Title 39 or Title 39-A or any previous actions that are protected under Title 26, chapter 7, subchapter V-B, except under physical or mental disability when it can be determined by the employer that the job or jobs to be filled require that information for the well-being and safety of the individual. This section does not prohibit any officially recognized agency from keeping necessary records in order to provide free services to individuals requiring rehabilitation or employment assistance;
(4) Print, publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specification or discrimination based upon race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, any previous assertion of a claim or right under former Title 39 or Title 39-A or any previous actions that are protected under Title 26, chapter 7, subchapter V-B, except under physical or mental disability when the text of printed or published material strictly adheres to this Act; or
(5) Establish, announce or follow a policy of denying or limiting, through a quota system or otherwise, employment or membership opportunities of any group because of the race or color, sex, physical or mental disability, religion, age, ancestry, crime victim status, sexual orientation or national origin, the previous assertion of a claim or right under former Title 39 or Title 39-A or because of previous actions that are protected under Title 26, chapter 7, subchapter V-B, of that group; or
E. For an employer, employment agency or labor organization to discriminate in any manner against individuals because they have opposed a practice that would be a violation of this Act or because they have made a charge, testified or assisted in any investigation, proceeding or hearing under this Act.
Sec. 3. 5 MRSA §4573, sub-§3, as amended by PL 1991, c. 99, §10, is further amended to read:
3. Required records. To record any data required by
law, or by the rules and regulations of any state or federal agency,
provided the records are kept in good faith for the purpose of
complying with law, and are not used for the purpose of discrimination
in violation of this Act; and
Sec. 4. 5 MRSA §4573, sub-§4, as amended by PL 1991, c. 484, §3, is further amended to read:
4. Discharge of or refusal to hire employee with physical
or mental disability. Nothing in this Act prohibits an employer
from refusing to hire or discharging an employee with physical
or mental disability, or subjects an employer to any legal liability
resulting from the refusing to employ or the discharge of an employee
with physical or mental disability, where the employee, because
of the physical or mental disability, is unable to perform the
duties or perform those duties in a manner that would not endanger
the health or safety of the employee or the health or safety of
others or to be at, remain or go to or from the place where the
duties of employment are to be performed; or
Sec. 5. 5 MRSA §4573, sub-§5, as enacted by PL 1991, c. 484, §4, is amended to read:
5. Federal Indian policy. Nothing in this Act may be
construed to prohibit any employment policy or action that is
permitted under 42 United States Code, Section 2000e-2(i) (1982)
of the federal Equal Employment Opportunity Act governing employment
of Indians. ;
Sec. 6. 5 MRSA §4573, sub-§§6 and 7 are enacted to read:
6. Misconduct by crime victim. For an employer to discipline or discharge an employee based on information arising from the employee's crime victim status if the employee was engaged in misconduct in connection with that employment when the employee became a crime victim; or
7. Family and spousal employment benefits. For an employer or insurer to provide insurance and other benefits for the spouses and children of employees without providing such benefits to, or on account of, a person who is involved in a homosexual relationship with an employee.
Sec. 7. 5 MRSA §4582, 2nd, 3rd, and 4th ¶¶, as amended by PL 1991, c. 99, §14, are further amended to read:
For any owner, lessee, sublessee, managing agent or other person having the right to sell, rent, lease or manage a housing accommodation, or any agent of these to make or cause to be made any written or oral inquiry concerning the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of any prospective purchaser, occupant or tenant of the housing accommodation; or to refuse to show or refuse to sell, rent, lease, let or otherwise deny to or withhold from any individual housing accommodation because of the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the individual; or to issue any advertisement relating to the sale, rental or lease of the housing accommodation which indicates any preference, limitation, specification or discrimination based upon race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status; or to discriminate against any individual because of race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status in the price, terms, conditions or privileges of the sale, rental or lease of any housing accommodations or in the furnishing of facilities or services in connection with any housing accommodations, or to evict or attempt to evict any tenant of any housing accommodation because of the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the tenant;
For any real estate broker or real estate sales person, or agent of one of them, to fail or refuse to show any applicant for a housing accommodation any accommodation listed for sale, lease or rental, because of the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the applicant or of any intended occupant of the accommodation, or to misrepresent, for the purpose of discriminating because of the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the applicant or intended occupant, the availability or asking price of a housing accommodation listed for sale, lease or rental; or for any reason to fail to communicate to the person having the right to sell or lease the housing accommodation any offer for the same made by any applicant; or in any other manner to discriminate against any applicant for housing because of race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the applicant or of any intended occupant of the housing accommodation, or to make or cause to be made any written or oral inquiry or record concerning the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of any applicant or intended occupant, or to accept for listing any housing accommodation when the person having the right to sell or lease the same has directly or indirectly indicated an intention of discriminating among prospective tenants or purchasers on the ground of their race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status, or when the broker knows or has reason to know that the person having the right to sell or lease the housing accommodation has made a practice of discrimination since July 1, 1972;
For any person to whom application is made for a loan or other form of financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation, whether secured or unsecured, or agent of the person, to make or cause to be made any oral or written inquiry concerning the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of any individual seeking financial assistance, or of existing or prospective occupants or tenants of housing accommodations; or to discriminate in the granting of financial assistance, or in the terms, conditions or privileges relating to the obtaining or use of any financial assistance, against any applicant because of the race or color, sex, physical or mental disability, religion, ancestry, crime victim status, sexual orientation, national origin or familial status of the applicant or of the existing or prospective occupants or tenants;
Sec. 8. 5 MRSA §4583, as amended by PL 1991, c. 99, §19, is further amended to read:
§4583. Application
Nothing in this Act may be construed to prohibit or limit the exercise of the privilege of every person and the agent of any person having the right to sell, rent, lease or manage a housing accommodation to set up and enforce specifications in the selling, renting, leasing or letting or in the furnishings of facilities or services in connection with the facilities which are not based on the race, color, sex, physical or mental disability, religion, country of ancestral origin, crime victim status, sexual orientation, familial status or the receipt of public assistance payments of any prospective or actual purchaser, lessee, tenant or occupant. Nothing in this Act may be construed to prohibit or limit the exercise of the privilege of every person and the agent of any person making loans for or offering financial assistance in the acquisition, construction, rehabilitation, repair or maintenance of housing accommodations, to set standards and preferences, terms, conditions, limitations or specifications for the granting of loans or financial assistance which are not based on the race, color, sex, physical or mental disability, religion, country of ancestral origin, crime victim status, sexual orientation, familial status or the receipt of public assistance payments of the applicant for a loan or financial assistance or, of any existing or prospective owner, lessee, tenant or occupant of housing accommodation.
Nothing in this Act prohibits a person from acting on information that a crime victim was engaged in misconduct that constitutes grounds for eviction, relating to the use of leased premises at the time of, or relating to, the criminal conduct against that person.
Sec. 9. 5 MRSA §4592, sub-§§1 and 2, as amended by PL 1991, c. 99, §22, are further amended to read:
1. Denial of public accommodations. For any person who is the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation to directly or indirectly refuse, withhold from or deny to any person, on account of race or color, sex, physical or mental disability, religion, ancestry, sexual orientation or national origin, any of the accommodations, advantages, facilities or privileges of public accommodation, or in any manner discriminate against any person in the price, terms or conditions upon which access to accommodation, advantages, facilities and privileges may depend;
2. Communication, notice or advertisement. For any person to directly or indirectly publish, display or communicate any notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any place of public accommodation are refused, withheld from or denied to any person on account of race or color, sex, physical or mental disability, religion, ancestry, sexual orientation or national origin, or that the patronage or custom of any person belonging to or purporting to be of any particular race or color, sex, physical or mental disability, religion, ancestry, sexual orientation or national origin is unwelcome, objectionable or not acceptable, desired or solicited, or that the clientele is restricted to any particular race or color, physical or mental disability, religion, ancestry, sexual orientation or national origin. The production of any communication, notice or advertisement purporting to relate to any place of accommodation is presumptive evidence in any action that the action was authorized by its owner, manager or proprietor; and
Sec. 10. 5 MRSA §4594-F is enacted to read:
§4594-F. Not unlawful discrimination
This Act may not be construed to require any private membership organization to admit any person as a member based on sexual orientation and this Act may not be construed to require any person or organization to permit the participation of any group in any activity or event or to require the use of any facility or other public accommodation for the purpose of promoting or advocating matters relating to sexual orientation.
Sec. 11. 5 MRSA §4596, as amended by PL 1975, c. 770, §41, is further amended to read:
§4596. Unlawful credit extension discrimination
It shall be is unlawful credit discrimination
for any creditor to refuse the extension of credit to any person
solely on the basis of any one or more of the following factors:
Age age; race; color; sex; marital status;
sexual orientation; ancestry; religion or national origin
in any credit transaction. It shall is
not be unlawful credit discrimination to comply
with the terms and conditions of any bona fide group credit life,
accident and health insurance plan, for a financial institution
extending credit to a married person to require both the husband
and the wife to sign a note and a mortgage and to deny credit
to persons under the age of 18 or to consider a person's age in
determining the terms upon which credit will be extended.
Sec. 12. 5 MRSA §4634 is enacted to read:
§4634. Provisions relating to sexual orientation
1. Endorsement, promotion or protection. This Act may not be construed as endorsing, promoting or protecting any form of conduct, life-style or sexual behavior that is related to sexual orientation.
2. Standard of proof. In any complaint under this Act, based on a claim of sexual orientation discrimination, the complainant has the burden of proof to establish that discrimination against sexual orientation was the primary reason in any complaint for an action taken under this Act.
3. Certain nonprofit organizations exempt. The provisions of this Act relating to sexual orientation do not apply to:
A. Religious organizations, nonprofit organizations that are owned or controlled by religious organizations and nonprofit organizations for which a substantial purpose is the propagation of a particular religion; and
B. Private nonprofit organizations for which the primary purpose is to provide services to, or the members of which are primarily, persons under the age of 18.
4. Adoption and foster care. This Act may not be construed to require the placement of a child for adoption or foster care when one or more of the prospective adoptive or foster parents is homosexual. Any person or agency responsible for the placement of a child may consider the sexual orientation of the prospective adoptive or foster parents.
5. Disparate impact. The fact that a practice or policy has a disparate impact on the basis of sexual orientation does not constitute unlawful discrimination.
6. Affirmative action. An employer is not required to take an affirmative action to recruit, hire, or promote persons based on sexual orientation and an employer is not required to obtain or maintain information relating to the sexual orientation of employees.
7. School curriculum. A school is not required to incorporate any particular view of homosexual orientation or behavior in its curriculum and any such curriculum decisions are under the jurisdiction of local school boards and governing bodies of other educational institutions.
8. Immunity for certain employers and landlords. Under this Act, a complaint or civil action based on sexual orientation discrimination may not be filed against:
A. An employer who has fewer than 15 regular employees and who would not be subject to a lawsuit under the employment provisions of the federal Americans with Disabilities Act; or
B. A property owner who owns less than 5 housing units or, with respect to any claim involving a building in which the property owner or a member of the owner's immediate family resides.
Sec. 13. 17-A MRSA §254, sub-§1-A is enacted to read:
1-A. A person is guilty of sexual abuse of a minor if the person engages in a sexual act or sexual contact with another person who has not attained 18 years of age and who is of the same gender as the actor, provided that the actor is at least 3 years older than the other person.
Sec. 14. 19 MRSA §5 is enacted to read:
§5. Public policy on marriage
It is the policy of this State that marriage is a vital fundamental institution that is entitled to the support and protection of the State. A marriage must be limited to one male and one female of sufficient age and who otherwise meet the qualifications set forth in this chapter. To the maximum extent permitted under the Full Faith and Credit clause of the United States Constitution, this State does not recognize relationships or arrangements between or among 2 or more persons as a marriage or substantially equivalent to a marriage for any purpose under the laws of this State.