Rights panel finds UM discriminated University officials refused to recognize professor’s asthma as disability

AUGUSTA – The University of Maine discriminated against a physics professor by refusing to recognize his asthma as a disability, according to the Maine Human Rights Commission.

In a complaint filed last September, professor Peter Kleban said UM’s equal opportunity director refused to limit his classroom time to five hours a week, even though doctors said working longer than that likely would trigger the asthma he has suffered all his life.

An investigator for the MHRC said in a May report that Kleban qualifies as an individual with a disability under the Maine Human Rights Act, and that “there are reasonable grounds to believe … that the University of Maine System subjected … Peter Kleban to unlawful disability discrimination in employment.” MHRC members voted unanimously Monday to uphold the opinion.

Commission members agreed with Kleban that “it would be a reasonable accommodation” for him to teach five classroom hours a week instead of six as the university wanted him to, Augusta attorney David Webbert said Tuesday.

As part of a 90-day “conciliation process” both sides now will “try to work out a mutual resolution,” Webbert said.

If that fails, Kleban could take the case to court.

A full-time, tenured professor who earns $74,000 annually, Kleban co-founded UM’s Laboratory for Surface Science and Technology in 1981, which conducts research in high-technology areas such as microelectronics, sensors, composites and paper.

“The lab has brought in millions of dollars of research money to Maine, trained large numbers of students who were then able to get very good jobs, and considerably enhanced the university’s image for advanced technology outside the state,” Webbert said.

Kleban, who received a National Science Foundation grant last summer, is involved in several research projects, according to his attorney.

His contract calls for him to divide his time equally between teaching and doing research. “He’s a 50 percent researcher, working all the time,” Webbert said.

“Professor Kleban got tenure in four years. He’s a very strong performer. And then he got to be a full professor … within another four years. You’re talking about somebody who is incredibly committed to UM and to his career. We really want to work this out, but we don’t want to ruin his health so he can’t be a good teacher and top-notch researcher. We’re just trying to preserve his health,” the lawyer said.

“We totally disagree with the position because it flies in the face” of the Americans with Disability Act and the Maine Human Rights Act, said J. Kelley Wiltbank, a lawyer for UM. “The court decisions having to do with what a covered disability is clearly would indicate that asthma under this set of facts isn’t a disability.”

For years Kleban taught one upper-level graduate course and one workshop, a mix that involved five “contact hours” a week – three for the graduate course and two for the workshop, Webbert said. Contact hours are the hours a professor actually spends in the classroom teaching.

But in 1999, when the university increased his course load to two upper-level classes totaling six contact hours, Kleban’s asthma worsened.

“Stress is in the performance element of teaching … it was just too much on top of everything else,” Webbert said. Both his family doctor and a university doctor agreed that the extra course was causing his asthma to become worse.

For the last year Kleban has been teaching five hours and “is doing great,” the attorney said. This semester he is teaching a total of 78 students in an introductory physics class and an introductory physics lab. He also advises two graduate students.

“People think this is a cushy job, but this is theoretical, cutting-edge science,” Webbert said. “You can’t look at it like a third-grade spelling teacher, it’s a different order of magnitude.”

Kleban earned a bachelor’s degree from Antioch College in 1964 and a doctorate from Brandeis University in 1970.

Wiltbank said the university tried to accommodate Kleban’s health problem by limiting the number of classes he taught each day, starting classes later in the morning and never running “more than a couple of classes back to back.”

“One thing we couldn’t agree with him on was whether he should be relieved from teaching in a classroom setting,” he said.