Handicapped Workers: Who Should Bear the Burden of Proving Job Qualifications?

Joining a growing number of jurisdictions in 1973, the Maine Legislature amended the fair employment sections of the Maine Human Rights Act (the MHRA) to extend equal employment opportunity protection to all physically disabled workers. Nearly a decade later the Maine Supreme Judicial Court, sitting as the Law Court, defined unlawful employer treatment of handicapped workers in Maine Human Rights Commission v. Canadian Pacific, Ltd. The Law Court held that an employment decision based on a worker's handicap constitutes an admission of discrimination that shifts the burden of persuasion to the employer to prove either that all workers with similar handicaps are unqualified or that the individual worker in question is not qualified because of reasonably probable health or safety risks. The Law Court reaffirmed its Canadian Pacific holding in Higgins v. Maine Central Railroad. Highlighting the two separate elements of proof allocated to an employer, Higgins held that an employer cannot prove a probable health or safety risk absent an individualized assessment of the worker's handicap at the time the employment decision is made. Although Maine's employers may feel that both cases place an unusually high burden of justification on their employment decisions, the cases are consistent with traditional equal employment opportunity law. Nevertheless, the cases did not present the Law Court with an adequate opportunity to develop an analytic model which fully addresses the distinguishing characteristics of handicap equal employment opportunity law.