Lorraine SCAMMAN et al. v. SHAW‘S SUPERMARKETS, INC.
Docket: Fed-16-31
Supreme Judicial Court of Maine
March 7, 2017
Corrected: March 23, 2017; Argued: October 25, 2016
2017 ME 41
K. Joshua Scott, Esq. (orally), Jackson Lewis P.C., Portsmouth, NH, for appellee Shaw‘s Supermarkets, Inc.
Barbara Archer Hirsch, Esq., Maine Human Rights Commission, Augusta, for amicus curiae Maine Human Rights Commission
Richard L. O‘Meara, Esq., Murray Plumb & Murray, Portland, for amicus curiae AARP
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
HUMPHREY, J.
[¶ 1] Pursuant to
Is a claim for disparate impact age discrimination under the Maine Human Rights Act,
5 M.R.S.A. § 4572(1)(A) , evaluated under the “reasonable factor other than age” standard, see Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed. 2d 410 (2005); the “business necessity” standard, see Maine Human Rights Comm‘n v. City of Auburn, 408 A.2d 1253 (1979); or some other standard?
We answer the certified question as follows: “A claim for disparate impact age discrimination pursuant to the Maine Human Rights Act,
I. BACKGROUND
[¶ 2] The facts and procedural history are undisputed. Lorraine Scamman and others similarly situated (collectively, the plaintiffs) worked at various Shaw‘s Supermarkets locations in Maine as full-time employees when their employment was terminatеd in 2012 as part of a reduction
[¶ 3] After the plaintiffs filed complaints with the Maine Human Rights Commission alleging age discrimination in violation of the Maine Human Rights Act (MHRA),
[¶ 4] The plaintiffs then filed a complaint in the Superior Court (Androscoggin County), alleging unlawful employment discrimination based on age pursuant to the MHRA.3 See
[¶ 5] Shaw‘s argues that a provision of the federal Age Discrimination in Employment Act (ADEA),
II. DISCUSSION
A. Acceptance of the Certified Question of State Law
[¶ 6] We must first decide whether to accept and answer the certified question. See
[W]herever reasonably possible, the state court of last resort should be given opportunity to decide state law issues on which there are no state precedents which are controlling or clearly indicative of the developmental course of the state law because this approach (1) tend[s] to avoid the uncertainty and inconsistency in the exposition of state lаw caused when federal [c]ourts render decisions of [s]tate law which have an interim effectiveness until the issues are finally settled by the state court of last resort; and (2) minimize[s] the potential for state-federal tensions arising from actual, or fancied, federal [c]ourt efforts to influence the development of [s]tate law.
Bankr. Estate of Everest v. Bank of Am., N.A., 2015 ME 19, ¶ 14, 111 A.3d 655 (quotation marks omitted).
[¶ 7] ”
[¶ 8] In this case, all three requirements are met. First, the material facts are undisputed. Second, there is no clear controlling precedent—although we have mаde clear that the business necessity test applies in MHRA disparate impact cases based on sex discrimination, see City of Auburn, 408 A.2d at 1261-68, we have not yet expressly articulated what framework applies in age-based disparate impact employment discrimination cases pursuant to the MHRA.4 Finally, the plaintiffs agree that if the ADEA‘s RFOA defense does apply, Shaw‘s is entitled to a judgment as a matter of law. In one alternative, therefore, our answer to the certified question would be determinative of the case. Because all three criteria are met, we elect to consider and answer the certified question.
B. Legal Background
1. Disparate Impact Discrimination Claims
[¶ 9] The law recognizes at least two theories of liability upon which a plain
2. The Business Necessity Framework
[¶ 10] The business necessity framework, pursuant to which the Commission analyzed the disparate impact claim in this case, consists of a three-step burden-shifting scheme:
First, the plaintiff must establish a prima facie case of disparate impact by identifying a facially neutral practice that affects one group more harshly than аnother. Second, if the plaintiff meets her burden in the first step, the defendant must present prima facie evidence that its practice is justified by a business necessity. Finally, if the defendant meets its burden in the second step, the plaintiff must present prima facie evidence that the defendant‘s proffered justification is pretextual or that other practices would have a less discriminatory impact.
Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 24, 86 A.3d 52 (citations omitted).
[¶ 11] The federal courts apply the business necessity framework to disparate impact claims brought pursuant to Title VII of the Civil Rights Act of 1964,
3. The RFOA Defense
[¶ 12] Although Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of various characteristics other than age, the ADEA is the federal statutory scheme that proscribes age discrimination in employment. Seе
[¶ 13] In light of the RFOA defense, courts analyzing disparate impact age discrimination claims filed pursuant to the ADEA do not apply the business necessity framework. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 97-99, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). Once the plaintiff has satisfied his or her burden to make out a prima facie case of disparate impact, there is no inquiry into whether the employer‘s facially neutral practice constitutes a business necessity or whether the employer could have accomplished the same goal by less-discriminatory means. See id. at 95-100; Smith v. City of Jackson, 544 U.S. 228, 240, 243, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). Instead, the burden shifts to the defendant to establish that the challenged practice is based on a reasonable factor other than age.
1. Standards of Review
[¶ 14] The question before us is whether the business necessity standard applies to disparate impact age discrimination claims filed pursuant to the MHRA, whether the ADEA‘s RFOA defense applies, or whether some other framework of proof applies. To answer this question, we examine the terms of the MHRA in light of the legal background we have described. When interpreting a statute, “we givе effect to the Legislature‘s intent by considering the statute‘s plain meaning and the entire statutory scheme of which the provision at issue forms a part.” Samsara Mem‘l Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶ 42, 102 A.3d 757. Only if the plain language of the statute is ambiguous will we look beyond that language to examine other indicia of legislative intent, such as legislative history. Zablotny v. State Bd. of Nursing, 2014 ME 46, ¶ 18, 89 A.3d 143. “Statutory language is considered ambiguous if it is reasonably susceptible to different interpretations.” Id. (alteration omitted) (quotation marks omitted). “When a statute administered by an agency is ambiguous, we review whether the agency‘s interpretation of the statute is reasonable and uphold its interpretation unless the statute plainly compels a contrary result.” Fuhrmann v. Staples the Office Superstore E., Inc., 2012 ME 135, ¶ 23, 58 A.3d 1083 (quotation marks omitted).
2. Plain Language
[¶ 15] The MHRA provides: “The opportunity for an individual to secure employment without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, age, ancestry or national origin is recognized as and declared to be a civil right.”
It is unlawful employment discrimination, in violation of this Act, except when based on a bona fide occupational qualification ... [f]or any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of race or color, sex, sexual orientation, physical or mental disability,
religion, age, ancestry or national origin ... 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 ....
[¶ 16] In a section describing what is “[n]ot unlawful employment discrimination,” the MHRA expressly allows discrimination on account of age effected in order to (1) comply with “laws relating to the employment of minors” and (2) “[o]bserve the terms of any bona fide employee benefit plan” that, inter alia, compliеs with the ADEA.
[¶ 17] On the other hand, the MHRA also does not affirmatively provide that the businеss necessity test applies to disparate impact age discrimination claims. Moreover, although the phrase “business necessity” appears in an MHRA provision describing a defense to claims where the plaintiff alleges certain types of discrimination against an individual with a disability, that section does not refer to claims based on other protected characteristics, such as age. See
3. Agency Deference
[¶ 18] As we noted above, we give deference to an agency‘s reasonable interpretation of an ambiguous statute that it administers. Fuhrmann, 2012 ME 135, ¶ 23, 58 A.3d 1083. “We will not second-guess the agency on matters falling within its realm of expertise.” Mulready v. Bd. of Real Estate Appraisers, 2009 ME 135, ¶ 13, 984 A.2d 1285 (quotation marks omitted); see also Me. Human Rights Comm‘n v. United Paperworkers Int‘l Union, 383 A.2d 369, 378 (Me. 1978).
[¶ 19] The Maine Human Rights Commission administers the MHRA; it is required to investigate human rights violations and “recommend measures calculated to promote the full enjoyment of human rights and personal dignity by all the inhabitants of” Maine.
[¶ 20] Here, guided by City of Auburn, the Commission investigator unequivocally applied the business necessity framework to the plaintiffs’ disparate impact age discrimination claims, and the Commission unanimously adopted the investigator‘s report. The Commission has also made clear, in its amicus brief, its interpretation that the ADEA‘s RFOA defense does not apply to MHRA claims and that the business necessity framework does apply. Contrary to what Shaw‘s contends, therefore, the Commission‘s interpretation is not indeterminate.
[¶ 21] Nor is the Commission‘s interpretation unreasonable. See Fuhrmann, 2012 ME 135, ¶ 23, 58 A.3d 1083. On the contrary, its interpretation is supported by the MHRA‘s legislative history and content and by our existing case law.
[¶ 22] The Legislature enacted the MHRA in 1971. P.L. 1971, ch. 501, § 1. At that time, both Title VII of the Civil Rights Act of 1964 and the ADEA were already in effect. See City of Auburn, 408 A.2d at 1261 & n.10. Although the ADEA contained the RFOA defense,
[¶ 23] The United States Supreme Court concluded in Smith that the legislative history of the ADEA demonstrates that Congress‘s decisions to enact the ADEA separately from Title VII and to рrovide for the RFOA defense were based in part on the notion that “age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual‘s capacity to engage in certain types of employment.”10 544 U.S. at 240, 125 S.Ct.
[¶ 24] Shaw‘s argues that we should not “reject the use of the RFOA test because it is not included in the statute,” where the MHRA also does not expressly codify the business necessity test for age-based discrimination claims. This argument relies on an inapt comparison because the two standards differ in nature. The RFOA defense is a creature of the ADEA statute; it is an affirmative defense, not a “test.” Meacham, 554 U.S. at 91-95, 128 S.Ct. 2395;
[¶ 25] Our case law interpreting the MHRA also supports the Commission‘s interpretation. Shaw‘s argues that because the MHRA is “silent” on the test to be applied to the claim at issuе, we should “look to the ADEA for interpretation.” We have indeed looked to federal human rights legislation, and the cases interpreting it, for aid in interpreting the MHRA. See, e.g., City of Auburn, 408 A.2d at 1261 (“[T]he Maine legislature—by adopting provisions that generally track the federal antidiscrimination statutes—intended the courts to look to the federal case law to provide significant guidance in the construction of our statute.” (quotation marks omitted)); Wells v. Franklin Broad. Corp., 403 A.2d 771, 773 n.4 (Me. 1979) (“[F]eder
[¶ 26] We have been careful, however, to specify that we will consider the construction of a federal counterpart to the MHRA only “when the federal and state laws are substantially identical.” Percy v. Allen, 449 A.2d 337, 342 (Me. 1982); see Me. Human Rights Comm‘n v. Kennebec Water Power Co., 468 A.2d 307, 310 (Me. 1983) (“[W]here the provisions of the Maine statute differ substantively from their federal counterparts, ... deference to construction of the federal version is unwarranted.“). In Kennebec Water Power Co., the plаintiff, who was in his thirties, alleged that an employer discriminated against him on the basis of age when it hired older workers instead of him. 468 A.2d at 308. The trial court concluded that the ADEA‘s provision limiting its protection to individuals forty or older, which the MHRA does not contain, applied to MHRA claimants. Id. We disagreed, concluding that “in enacting the age discrimination prohibitions, the Legislature intended to supplement the federal ADEA.” Id. at 310 (emphasis added). We “decline[d] to superimpose a limitation which does not appear on the face of the statute.”12 Id.
[¶ 27] Unlike the ADEA, the MHRA does not contain an RFOA affirmative defense. This is a substantive difference; the laws are not “substantially identical,” Percy, 449 A.2d at 342. Thus, neither the text of the RFOA affirmative defense nor the federal cases applying that text provides helpful guidance for interpreting our statute. We therefore uphold the Commission‘s reasonable determination that the business necessity test applies to disparate impact age discrimination claims brought pursuant to the MHRA. See Fuhrmann, 2012 ME 135, ¶ 23, 58 A.3d 1083.
The entry is:
We answer the certified quеstion as follows: “A claim for disparate impact age discrimination pursuant to the Maine Human Rights Act,
HUMPHREY, J.