Lorraine Scamman et al. v. Shaw's Supermarkets, Inc. — 2017 ME 41

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 41
Docket: 	Fed-16-31
Argued: 	October 25, 2016
Decided: 	March 7, 2017
Corrected: 	March 23, 2017
Panel: 	SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
LORRAINE SCAMMAN et al.
v.
SHAW’S SUPERMARKETS, INC.
HUMPHREY, J.
[¶1] 	Pursuant to 4 M.R.S. § 57 (2016), the United States District Court
for the District of Maine has certified to us the following question of state law:
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 (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, 	5 	M.R.S.
§ 4572(1)(A), is evaluated according to the ‘business necessity’ framework.”

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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 terminated in 2012 as part of a reduction in force.
Pursuant to a policy Shaw’s implemented to carry out the reduction in force,
only full-time employees were terminated. Because full-time employees were,
on average, older than part-time employees, the reduction in force affected
more 	older employees, including 	the plaintiffs, 	than 	younger employees.
Shaw’s explained that “business imperatives made it necessary . . . to cut costs
by at least $550,000 per week, company-wide, and the reduction in force
allowed it to do so.”
[¶3] 	After the plaintiffs filed complaints with the Maine Human Rights
Commission alleging age discrimination in violation of the Maine Human
Rights Act (MHRA), 5 M.R.S. §§ 4551-4634 (2012),1 a Commission investigator
recommended that the Commission find reasonable grounds to believe that
1 Portions of the MHRA not relevant to the question presented in this case have been amended
since the plaintiffs filed their claim. See P.L. 2015, ch. 457, §§ 1-4 (effective July 29, 2016) (codified
at 5 M.R.S. §§ 4553(1-H), (9-E)(A), 4582-A(3), 4592(8) (2016)); P.L. 2015, ch. 102, § 9 (effective
Oct. 15, 2015) (codified at 5 M.R.S. § 4594-D(11) (2016)); P.L. 2013, ch. 576, §§ 1-3 (effective Aug. 1,
2014) (codified at 5 M.R.S. § 4573(5), (6)(B), (7) (2016)).

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Shaw’s had violated the MHRA by discriminating based on age pursuant to a
disparate 	impact 	theory.2 	The 	investigator 	applied 	the 	three-step,
burden-shifting 	“business necessity” 	framework 	to analyze the 	plaintiffs’
allegations. 	See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);
Griggs v. Duke Power Co., 401 U.S. 424, 429-35 (1971); Me. Human Rights
Comm’n 	v. 	City 	of 	Auburn, 	408 	A.2d 	1253, 	1264-68 	(Me. 	1979). 	The
Commission 	voted unanimously to adopt 	the investigator’s analysis and
recommendations.
[¶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 M.R.S. § 4572(1)(A) (2016). 	After
Shaw’s removed the case to the United States District Court for the District of
Maine, the court, upon a joint request by the parties, certified to us the
question of what framework of proof applies to a claim of disparate impact
2 The investigator recommended that the Commission find no reasonable grounds to believe
that Shaw’s violated the MHRA based on a disparate treatment (i.e., “intentional discrimination”)
theory. See, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015); Me. Human
Rights Comm’n v. City of Auburn, 408 A.2d 1253, 1261-62 (Me. 1979).
3 The MHRA prohibits recovery of attorney fees as well as compensatory and punitive damages
under certain circumstances unless the plaintiff has filed a complaint with the Commission and one
of several outcomes has resulted. 5 M.R.S. § 4622(1) (2016); see Gordan v. Cummings, 2000 ME 68,
¶ 11, 756 A.2d 942. 	Those outcomes include the Commission’s “[f]ail[ure], within 90 days after
finding reasonable grounds to believe that unlawful discrimination occurred, to enter into a
conciliation agreement to which the plaintiff was a party.” 5 M.R.S. § 4622(1)(B).

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age discrimination brought pursuant to the MHRA. 	See Scamman v. Shaw’s
Supermarkets, Inc., No. 2:15-cv-00295-JDL, 2016 U.S. Dist. LEXIS 10271 (D. Me.
Jan. 26, 2016).
[¶5] Shaw’s argues that a provision of the federal Age Discrimination in
Employment Act (ADEA), 29 U.S.C.S. §§ 621-634 (LEXIS through Pub. L. No.
114-328), known as the “reasonable factor other than age” (RFOA) defense,
should apply to MHRA claims of disparate impact age discrimination. 	The
parties agree that if the RFOA defense applies pursuant to Maine law, Shaw’s
is 	entitled 	to 	a 	judgment 	as 	a 	matter 	of 	law 	on 	the 	plaintiffs’ 	age
discrimination claim. 	They also agree that if the Commission was correct to
apply the “business necessity” framework instead, further discovery will be
necessary to develop the issues of (1) whether the reduction in force was
actually 	motivated 	by 	a 	business 	necessity 	and 	(2) 	if 	so, 	whether
less-discriminatory alternatives would have served those business needs.
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 4 M.R.S. § 57; Alexander, Maine Appellate Practice § 25.1 at 194

5
(4th ed. 2013) (“Consideration of the merits of a certified question is not
automatic.”).
[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 law 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] “Title 4 M.R.S. § 57 authorizes, but does not require, us to consider
a 	certified 	question 	of 	state 	law 	posed 	by 	a 	federal 	court 	in 	certain
circumstances.” 	Id. ¶ 13 (quotation marks omitted); see M.R. App. P. 25(a).
We may consider the merits of a certified question when three criteria are
met: “(1) there is no dispute as to the material facts at issue; (2) there is no
clear controlling precedent; and (3) our answer, in at least one alternative,
would be determinative of the case.” Everest, 2015 ME 19, ¶ 13, 111 A.3d 655
(quotation marks omitted).

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[¶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 made 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
plaintiff 	may 	prove 	a 	claim 	of 	employment 	discrimination: 	“disparate
treatment” and “disparate impact.” 	See EEOC v. Abercrombie & Fitch Stores,
4 In Maine Human Rights Commission v. Department of Corrections, we addressed a claim that an
employer discriminated against the plaintiff on the basis of age and sex in violation of the
then-existing version of the MHRA. 474 A.2d 860, 863 (Me. 1984). The plaintiff’s claim included
both disparate treatment and disparate impact theories. 	Id. at 863-64. 	Analyzing the disparate
impact allegations, we concluded at the first step that the plaintiff could not meet her initial burden
to make a prima facie showing of a disparate impact. 	Id. at 865-66. 	We did not address what
framework of proof should apply to age discrimination claims specifically, nor did we discuss the
ADEA or the RFOA defense. See id.

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Inc., 135 S. Ct. 2028, 2032 (2015); City of Auburn, 408 A.2d at 1261-63. 	In a
disparate impact claim, such as the suit at issue in this case, the plaintiff
alleges 	that 	he 	or 	she 	is 	a 	member 	of 	a 	protected 	group 	that 	is
disproportionately affected by an employer’s practice. 	E.g., City of Auburn,
408 A.2d at 1264-68. Statistical evidence is the “primary method” by which a
plaintiff supports this type of claim.5 Id. at 1264.
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 another. 	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).
5 In a “disparate treatment” claim, also called an “intentional discrimination” claim, the plaintiff
alleges that the employer engaged in an adverse employment action against him or her as an
individual because of a characteristic that is protected by human rights legislation. See Abercrombie
& Fitch, 135 S. Ct. at 2031-32; City of Auburn, 408 A.2d at 1263.

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[¶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, 42 U.S.C.S. §§ 2000e to 2000e-17 (LEXIS through Pub. L. No. 114-328),
which 	prohibits 	discrimination 	in 	employment 	on 	the 	basis 	of 	various
characteristics not including age. 	See 42 U.S.C.S. § 2000e-2(a); Albemarle,
422 U.S. at 425; Griggs, 401 U.S. at 429-35. 	In City of Auburn, we applied the
business necessity framework to an MHRA claim of disparate impact sex
discrimination. 408 A.2d at 1264-68.
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. 	See 29 U.S.C.S. § 623(a).6 	The ADEA also
6 The ADEA provides, in relevant part:
§ 623. Prohibition of age discrimination.
(a) Employer practices. It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such
individual’s age; or

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specifies, however, that “[i]t shall not be unlawful for an employer . . . to take
any 	action 	otherwise 	prohibited 	under 	subsection[] 	(a) 	. 	. 	. 	where 	the
differentiation is based on reasonable factors other than age.” 	29 U.S.C.S.
§ 623(f)(1). This is the RFOA defense.
[¶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 (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 (2005). Instead, the burden shifts to the defendant to establish
that the challenged practice is based on a reasonable factor other than age.
29 U.S.C.S. § 623(f)(1); see Meacham, 554 U.S. at 91-96; Smith, 544 U.S. at 243;
29 C.F.R. § 1625.7 (2016). 	The United States Supreme Court has made clear
that the existence of the RFOA defense in the ADEA means that “the scope of
(3) to reduce the wage rate of any employee in order to comply with this
Act.
29 U.S.C.S. § 623(a) (LEXIS through Pub. L. No. 114-328).

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disparate-impact liability under [the] ADEA is narrower than under Title VII.”
Smith, 544 U.S. at 240; see Meacham, 554 U.S. at 102.
C. 	Analysis
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 give 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

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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.” 	5 M.R.S. § 4571
(2016). More specifically,
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 . . . .
5 M.R.S. § 4572(1)(A).
[¶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

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minors” and (2) “[o]bserve the terms of any bona fide employee benefit plan”
that, inter alia, complies with the ADEA. 	5 M.R.S. § 4573(1-A) 	(2016).
Although section 4573(1-A) specifically refers to the ADEA in describing what
is 	“[n]ot unlawful employment discrimination,” that section 	contains 	no
provision allowing an employer to take otherwise prohibited actions “where
the 	differentiation 	is 	based 	on 	reasonable 	factors 	other 	than 	age.”7
Cf. 29 U.S.C.S. § 623(a), (f)(1). 	This suggests that the Legislature, while fully
aware of the provisions of the ADEA, did not intend for the RFOA defense to
be available pursuant to Maine law.
[¶17] On the other hand, the MHRA also does not affirmatively provide
that the business 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 5 M.R.S. § 4573-A (2016).8 This could suggest a legislative choice
7 	Nor did the Legislature include any reference to an RFOA defense in a section entitled
“Defenses,” 5 M.R.S. § 4573-A (2016), or in any other portion of the MHRA.
8 Title 5 M.R.S. § 4573-A provides, in relevant part:
§ 4573-A. Defenses

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that the business necessity framework should apply only to disability-related
MHRA claims.9 	See Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994) (“[A]
well-settled rule of statutory interpretation states that express mention of one
concept implies the exclusion of others not listed.”). 	Looking only at the
statute’s plain language, we therefore conclude that the statute is “reasonably
susceptible to different interpretations,” Zablotny, 2014 ME 46, ¶ 18, 89 A.3d
143 	(alteration 	omitted) 	(quotation 	marks 	omitted), 	and 	is 	therefore
ambiguous.
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,
1. General provisions. It is a defense to a charge of discrimination under
this subchapter that an alleged application of qualification standards, tests or
selection criteria that screen out or tend to screen out or otherwise deny a job or
benefit to an individual with a disability has been shown to be job-related and
consistent with business necessity, and such performance [cannot] be accomplished
by reasonable accommodation, as required by this subchapter.
(Emphases added.)
9 	This is merely one possible interpretation of 5 M.R.S. § 4573-A, which renders the MHRA
ambiguous as to the question presented in this case. 	We do not mean to suggest that it is
necessarily the “correct” interpretation. 	Indeed, the statute refers to “a defense to a charge of
discrimination under this subchapter,” 5 M.R.S. § 4573-A(1) (emphasis added), which ostensibly
includes non-disability-based discrimination claims, see 5 M.R.S. § 4572(1)(A) (2016). 	And no
indication exists in our case law to suggest that we have abandoned the business necessity
framework for non-disability-based disparate impact claims since the enactment of section 4573-A
in 1995. 	See Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 24, 86 A.3d 52 (“We
evaluate claims of disparate impact in the employment context using [the] . . . three-step,
burden-shifting [business necessity] analysis.”); P.L. 1995, ch. 393, § 21 (effective Sept. 29, 1995);
P.L. 1995, ch. 511, § 1 (effective Feb. 22, 1996).

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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. 	5 M.R.S. § 4566 (2016). 	To achieve those
goals, 	it 	has 	the 	power 	to 	hold 	evidentiary 	hearings, 	adopt 	rules 	and
regulations, publish results of investigations, report to the legislative and
executive branches, and do “everything reasonably necessary to perform its
duties under” the MHRA. 5 M.R.S. § 4566(4), (7), (10)-(12).
[¶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.

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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, 29 U.S.C.S. § 623(f)(1), the Maine
Legislature did not include an RFOA provision in the MHRA. 	The Legislature
revisited the section describing “[n]ot unlawful employment discrimination”
based on age in 1977, 1979, and 1995. 	P.L. 1977, ch. 580, § 14; P.L. 1979,
ch. 350, §§ 2-3; P.L. 1995, ch. 393, § 15. 	The 1979 amendment resulted in an
express reference to the ADEA. P.L. 1979, ch. 350, §§ 2-3. The Legislature did
not, however, enact an RFOA provision through any of these amendments.
This history suggests that the Legislature has chosen—intentionally—not to
limit the scope of its protections against age discrimination by providing for
an RFOA defense.

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[¶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 provide 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. 	The
legislative history of the MHRA does not suggest that the Maine Legislature
agreed with that premise. 	Instead, “against the background of prior federal
antidiscrimination statutes,” City of Auburn, 408 A.2d at 1261—namely, Title
VII and the ADEA—the 	Legislature enacted a unitary antidiscrimination
statute 	that is 	similar to Title VII but 	that 	includes 	age as a protected
characteristic. 	Unlike Congress, the Maine Legislature did not create a
separate statutory scheme specific to age discrimination. 	The MHRA’s situs
on 	the 	historical 	timeline 	of 	anti-discrimination 	legislation, 	considered
alongside 	the 	absence 	of 	statutory 	language 	creating 	an 	RFOA 	defense,
suggests that the Legislature did not intend for the scope of protection from
10 The Supreme Court noted that “[d]uring the deliberations that preceded the enactment of the
Civil Rights Act of 1964, Congress considered and rejected proposed amendments that would have
included older workers among the classes protected from employment discrimination.” 	Smith v.
City of Jackson, 544 U.S. 228, 232 (2005).

17
age discrimination to be any different from the scope of protection from
discrimination based on the other characteristics enumerated in the MHRA.11
[¶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;
29 U.S.C.S. § 623(f)(1). It allows an employer that demonstrates certain facts
to engage in “otherwise prohibited” conduct. 	See Meacham, 554 U.S. at 95
(“[A] defense to what is ‘otherwise prohibited’ is an affirmative defense,
entirely the responsibility of the party raising it.”). 	The business necessity
test, 	conversely, is a judicially-created method of allocating the burdens
involved in proving entitlement to relief on a claim that an employer’s facially
neutral practice has the consequence of discriminating on the basis of a
protected characteristic. 	See Albemarle, 422 U.S. at 425; Griggs, 401 U.S. at
431-32; City of Auburn, 408 A.2d at 1261-62, 1264. 	That the statutory RFOA
11 This interpretation is consistent with the notion that Congress intended the ADEA to serve as
a “floor” of protection from age discrimination. Me. Human Rights Comm’n v. Kennebec Water Power
Co., 468 A.2d 307, 310 (Me. 1983) (“It is clear that Congress, in enacting the ADEA, intended to
leave room for states to supply consistent legislation.”).

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language—which already existed in the ADEA when the MHRA was enacted—
is absent from the MHRA therefore sheds significantly more light on the
Legislature’s intent than does the absence of a codification of the business
necessity framework, which evolved in 	the courts after the MHRA was
enacted.
[¶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 issue, 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]ederal cases construing
the ADEA may aid our interpretation of the provision of the [MHRA] banning
age discrimination in employment.”).
[¶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

19
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 plaintiff, 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
12 We held similarly in Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ¶¶ 24-31, 895 A.2d 309,
superseded by statute as stated in Rooney v. Sprague Energy Corp., No. CV-06-20-B-W, 2007 U.S. Dist.
LEXIS 78147, at *6-8 (D. Me. Oct. 19, 2007). In that case, we rejected an employer’s argument that
the MHRA’s definition of “physical or mental disability” should be read to include the requirement
of the federal Americans with Disabilities Act of a showing of a substantial limitation on a major life
activity. Id. We declined to “in effect, amend the MHRA to include the limitation present in federal
law but not in the Maine Legislature’s enacted definition of ‘disability.’” Id. ¶ 27.

20
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 question as follows: “A
claim for disparate impact age discrimination
pursuant 	to 	the 	Maine 	Human 	Rights 	Act,
5 M.R.S. § 4572(1)(A), is evaluated according to
the ‘business necessity’ framework.”
Jeffrey Neil Young, Esq., Carol J. Garvan, Esq., and Max I. Brooks, Esq. (orally),
Johnson, Webbert & Young, LLP, Augusta, for appellant Lorraine Scamman et
al.
K. Joshua Scott, Esq. (orally), Jackson Lewis P.C., Portsmouth, New Hampshire,
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
United States District Court for the District of Maine docket number 2:15-cv-00295-JDL
FOR CLERK REFERENCE ONLY