Know your wrongs Sitting in on a Maine Human Rights Commission meeting can help small-business owners, managers learn how to avoid running afoul of the law

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About once a month, there’s a free business education class offered in Augusta.

At least that’s one way to look at the regular meetings of the Maine Human Rights Commission.

Pat Ryan, executive director of the small state office that investigates complaints about alleged violations of the Maine Human Rights Law, believes business owners and managers would do well to sit in on a session of the Maine Human Rights Commission, the governor-appointed, citizen panel that rules on some 800 cases each year.

Ryan, who has headed up the Maine Human Rights Commission for 25 years, has seen and heard it all – stories from workers about enduring groping supervisors and racial jokes, and about firing and promotion based on gender or age rather than on qualifications.

Some of the graphic language quoted and actions described at commission meetings would make a sailor blush.

And while Ryan and the commission essentially exist to protect the rights of workers and renters rather than look out for the interests of businesses, she readily offers advice to business owners and managers by saying they put themselves in jeopardy by not understanding the law and the consequences of being out of compliance.

Since 99 percent of Maine’s businesses employ fewer than 100 workers, and 90 percent employ fewer than 20 workers, most of the state’s businesses don’t have the resources to develop policies and procedures to avoid running afoul of the law.

They do so at their own peril, Ryan said, because failure to comply leaves them at risk for costly lawsuits. Prepackaged policies on hiring, firing, promotion and sexual harassment can be purchased and easily tailored to fit almost any business, she said.

Maine’s Human Rights Law, adopted in 1971, is designed to protect residents in areas of employment, housing and access to public accommodations, such as hotels and restaurants, from discrimination on the basis of race, color, sex, physical or mental disability, religion, ancestry or national origin.

The Maine Human Rights Commission, a citizen board appointed by the governor, weighs the complaints against a strict interpretation of existing law. Before meeting on complaints, a commission investigator reviews documents, and in some cases meets with complainants and the named business to make a recommendation to commissioners on the case.

Complaints from people who have been fired from jobs are a common theme. They charge, often without merit or basis, that an employer chose to discharge them because of gender, race or age.

In recent years, age discrimination cases have begun to appear on commission agendas with increasing frequency, Ryan said, perhaps a reflection of the aging baby boomer generation.

“I think that’s where employers can make their biggest mistakes,” she said, in handling layoffs or firings of older workers.

It’s rare that a business wants to rid itself of an older worker because of concern about image, Ryan said. Often the owner needs to cut some jobs and chooses workers closer to retirement.

Or, an older worker is not performing up to snuff, and rather than citing poor work, the employer says something like, “Maybe you’d be better off retiring,” Ryan said, which is “an incredibly stupid thing for employers to do.”

A successful age-discrimination complaint can be made if an older worker’s job is eliminated, and then a younger worker is hired to perform almost the same tasks, she said.

Businesses often get themselves into trouble by not documenting poor employee performance. A fired worker, or his or her attorney, will stand before the commission and point to an annual evaluation that sings the worker’s praises. Then the employer’s attorney will relate how the employee missed days, did not complete projects, argued with co-workers or came to work under the influence of alcohol.

For each and every such offense, Ryan said, an employer should document the problem.

“The more documentation you have, the better it is,” she said.

When a commission investigator begins to dig into a complaint, the first thing he or she will ask is to see the business’ policies on hiring, firing, promotion, or sexual harassment. If the business has the appropriate policy, the next question is whether the policy was followed.

“You have to be consistent,” she said.

Another trend Ryan is seeing is so-called whistleblower complaints, such as when, for example, a nursing home worker is asked to skip required patient paperwork, or when a trucking firm tells a driver to “just fudge the log.” If the worker refuses and is then fired, he or she has grounds to complain.

If a business is not complying with OSHA rules, for example, an employee’s obligation is to first tell the boss, Ryan said. If the boss does not remedy the situation and the employee notifies OSHA, the employee cannot be retaliated against by the employer.

Ryan advises employers to deal with such safety complaints in a businesslike way.

“You don’t take it personally,” she said.

In the early 1980s, sexual harassment began to be recognized by courts as a form of discrimination.

“Before that, women either left their jobs or put up with it,” she said.

The watershed event for awareness came in 1991 when Clarence Thomas was nominated for the Supreme Court, and his former clerk Anita Hill testified about his crude discussion of sex in the workplace. The conditions which Hill claimed existed in the office might constitute what commissioners call a hostile work environment.

Ryan said in the early 1990s women became less reticent about talking about what they endured in the workplace. The commission in those years often handled sexual harassment complaints from large companies. Now, Ryan said, the complaints are from small businesses.

Restaurants are frequently offenders. The fast pace, high stress and close quarters of the workplace can be conducive for crude comments and worse.

A common, though illegal, response to a sexual harassment complaint to a boss by a waitress might be, “We need the chef – if you can’t take it…” Ryan said.

Surprisingly, even chain restaurants, which have well-developed policies on file at the human resources office in the national headquarters, are often offenders, she said.

But sexual harassment does not exist if a co-worker tells a dirty joke.

“The courts have decided that isolated incidents of vulgarity don’t rise to the level of ‘hostile work environment,'” she said.

Rather, “Sexual harassment is all about power,” she said, when a boss or co-worker tries to coerce sex from someone or embarrass or humiliate them.

Again, it is the violated worker’s responsibility to tell the boss, and if the business deals promptly with the bad behavior, per its policy, a sexual harassment case probably can’t be made. The workplace can be made free of harassment by reassigning the offending worker to another shift or another area of the business, Ryan explained.

The key is to respond seriously to any complaint.

“That’s only in the employer’s interest to have that,” she said.

Ryan urges small business owners to hold sexual harassment training sessions, because they tend to put pressure on a would-be harasser to watch his or her step.

In her tenure, Ryan has seen great gains in the hiring and promotion of women in what were once considered nontraditional jobs.

“Women didn’t get certain jobs 20 years ago,” she said.

One exception to those gains is in the area of law enforcement, Ryan said. Two complaints from women employees in the state Department of Public Safety recently came before the commission, and commissioners found one of the complaints had reasonable grounds.

“We need to address that,” Ryan said. “We don’t have women in the top positions [in law enforcement].”

A fair number of complaints come from those with disabilities who claim they are treated unfairly by employers, either getting passed over for promotion or turned down in a request for a reasonable accommodation.

“An employer is responsible for considering reasonable accommodation,” Ryan said, once an employee has requested it.

As an example, she describes a cashier who, due to diabetes, needs to sit on a stool rather than stand as the other cashiers are required to do. Does providing the stool put an undue burden on the business? If not, the accommodation is considered reasonable.

“It’s my theory that if the employer gets that far in their thinking, they won’t get in trouble,” Ryan said. Still, “employers get very frustrated, because every disability is different.”

An owner of rental housing is also subject to the Maine Human Rights Law, having to rent to anyone, regardless of age, race, gender or family status (i.e., number of children). Landlords too often become paternalistic, deciding an apartment is not suitable to, for example, a young mother with a baby, she said.

“It is a business,” Ryan said of renting houses. Exceptions to the law are owner-occupied duplexes, and the owner of a house who rents up to four rooms.

The commission meets about once every six weeks. For information, see its Web site at: www.state.me.us/mhrc/index.shtml.