Maine Human Rights Com'n on Behalf and Use of Trudel v. Kennebec Water Power Co.

• Decision Date: 15 November 1983
• Citation: 468 A.2d 307
• Parties: 33 Fair Empl.Prac.Cas. (BNA) 563, 33 Empl. Prac. Dec. P 34,230 MAINE HUMAN RIGHTS COMMISSION on its own Behalf and for the Use of Steven TRUDEL v. KENNEBEC WATER POWER COMPANY.
• Court: Maine Supreme Court

Page 307

468 A.2d 307

33 Fair Empl.Prac.Cas. (BNA) 563,

33 Empl. Prac. Dec. P 34,230

MAINE HUMAN RIGHTS COMMISSION on its own Behalf and for the Use of Steven TRUDEL v. KENNEBEC WATER POWER COMPANY.

Supreme Judicial Court of Maine.

Argued Sept. 16, 1983.

Decided Nov. 15, 1983.

James E. Tierney, Atty. Gen., William H. Laubenstein, III, Asst. Atty. Gen., John E. Carnes (orally), Maine Human Rights Com'n, Augusta, for plaintiff.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster, S. Mason Pratt (orally), Richard W. Murphy, William M. Finn, Portland, for defendant.

Before NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ. and DUFRESNE, A.R.J.

VIOLETTE, Justice.

The Maine Human Rights Commission (the Commission) brought suit against the Kennebec Water Power Co. (Kennebec), ¹ alleging that Kennebec had engaged in age discrimination in its hiring practices when it failed on two occasions to hire the plaintiff Steven Trudel and instead hired two older job applicants. The Superior Court, Kennebec County, granted Kennebec's motion to dismiss for failure to state a claim, M.R.Civ.P. 12(b)(6), considered as a motion for summary judgment, M.R.Civ.P. 56. Because we find that the Maine anti-age discrimination statute, 5 M.R.S.A. § 4572(1)(A) (1979), was not intended to protect only persons over the age of 40 in the manner of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1976 & Supp. V 1981), and that the Maine statute is not preempted by the federal act, we vacate the judgment of the Superior Court.

I.

Kennebec Water Power Co. operates the Long Falls Dam in Dead River, Maine. The plaintiff Steven Trudel applied to Kennebec for the position of dam operator once in July 1977, when he was 34 years old, and again in September 1980, when he was 37 years old. The Maine Human Rights Commission alleges that in 1979 and in 1980 Kennebec hired 57 year old men to be dam operators, while Steven Trudel's applications were rejected because of his age.

Based on this perceived injustice, Mr. Trudel filed with the Commission a charge of age discrimination against Kennebec. After investigation of the matter, the Commission found that reasonable grounds existed to believe that Kennebec had discriminated against Mr. Trudel because of his age, in violation of 5 M.R.S.A. § 4572. ² The Commission attempted to dispose of the case by informal means as required by 5 M.R.S.A. § 4612(3) (1979), ³ but when no settlement with Kennebec could be reached, the Commission instituted this suit.

The Superior Court based its dismissal of the complaint and its entry of summary judgment for Kennebec on two grounds. First, the court ruled that the Maine age discrimination statute creates a protected age class which is the same as that created by the federal ADEA ⁴--only persons aged 40 to 70 are protected from age discrimination in employment. Second, the court found that even if the Maine statute were intended to apply to persons under age 40, the Maine law would be preempted by the federal law as inconsistent with its aim to promote the employment of older persons.

We do not agree with the trial court's conclusion that 5 M.R.S.A. § 4572(1)(A) extends protection only to persons within the federal act's protected age group. The Maine Human Rights Act, 5 M.R.S.A. §§ 4551-4632, was enacted in 1971, some three years after Congress adopted the federal ADEA forbidding age discrimination in the employment of persons between 40 and 65 years old. Unlike the federal act, the Maine statute does not specifically limit its protection to a particular age group; it is age-neutral.

In 1977, the Legislature enacted 5 M.R.S.A. § 4574, dealing solely with age discrimination. The section stated unequivocally, in part: "It is the intent of the Legislature that discrimination based on age against any person who seeks employment or who is already employed should not be tolerated." (emphasis added). In 1979, § 4574 was repealed and reenacted, substantially strengthening the age discrimination prohibitions in the section. Subsections 2 and 3 provide:

2. Legislative findings and intent. The Legislature finds that many older Maine citizens are forced out of the work force solely because of their age. The Legislature further finds that many older Maine residents who have been forced out of the work force are fully capable of carrying out the duties and responsibilities required by their employment. Finally, the Legislature finds that many older Maine citizens, because of their years of experience, can make valuable contributions to the work force.

It is the intent of the Legislature that discrimination based on age against any person who seeks employment in the private sector or who is already employed by a private employer shall not be tolerated. It is further the intent of the Legislature to ensure that any older person who seeks employment or wishes to continue employment in the private sector and who is capable of fulfilling the duties and responsibilities of this employment shall be treated like any other person who seeks employment or wishes to continue this employment. Finally, it is the clear and unequivocal intent of the Legislature to prohibit employers in the private sector from requiring employees to retire at a specified number of years of service.

3. Unlawful employment discrimination. It shall be unlawful employment discrimination:

A. For any employer to fail or refuse to hire any applicant for employment because of the age of the individual; or

B. For any employer to require to permit, as a condition of employment, any employee to retire at or before a specified age or after completion of a specified number of years of service.

5 M.R.S.A. § 4574(2) & (3) (Supp.1982-1983) (emphasis added). We discern in the expression of these multiple concerns a legislative intent to protect all persons from age discrimination in employment, ⁵ requiring an employer to evaluate the respective qualifications of employees, regardless of their ages.

Debate in the House of Representatives prior to the adoption of the 1979 amendments emphasizes this legislative intent to prohibit all age discrimination in employment, as inimical to individual rights. Representative Diamond stated:

I would like to remind all of us that what we are talking about here is the rights of individuals, the right of all Americans. We are hoping that everyone will look at this and let these Americans, whether they are 65, whether they are 41, 34, or whatever, to be evaluated on the job they are doing and that is all we are saying. If the person is not performing well, then he or she goes, but if they are, then they can stay, and that is the bottom line, how they are doing on the job.

2 Legis.Rec. 1320 (1979). No part of the debate intimates a contrary legislative intent.

In Wells v. Franklin Broadcasting Corp., 403 A.2d 771, 773 (Me.1979), we stated, "The purpose of the section 4572 ban on age discrimination in employment is to assure that performance, not age, will determine an employee's marketability and job security." 5 M.R.S.A. § 4572(1)(A) thus extends the protection afforded by the federal statute by declining to create a limited, specially protected age group. As we have previously recognized, in Maine Human Rights Commission v. Local 1361, United Paperworkers International Union, 383 A.2d 369, 375 (Me.1978):

[T]he employment discrimination provisions in our statute were intended to be the state counterparts of the Federal Act, complementing and in certain instances supplementing the federal.... [W]here the Federal Act is silent as in a definition of 'discrimination,' the Maine Act speaks in broad terms, defining 'discrimination' as 'without limitation, segregate or separate.' 5 M.R.S.A. § 4553(2) (emphasis supplied).

We find that in enacting the age discrimination prohibitions, the Legislature intended to supplement the federal ADEA, and we decline to superimpose a limitation which does not appear on the face of the statute.

The defendant correctly points out that this court in the past has relied on federal case law construing the federal anti-discrimination statutes as an aid to interpretation of similar provisions in our own Maine Human Rights Act. See Maine Human Rights Commission v. City of Auburn, 408 A.2d 1253, 1261 (Me.1979); Wells, 403 A.2d at 773 n. 4; Maine Human Rights Commission v. Local 1361, 383 A.2d at 375. In Percy v. Allen, 449 A.2d 337, 342 (Me.1982), we explained: "To the extent that there exists an identity of purpose and objectives as between the Maine and federal provisions, reference to the latter in construing the former is entirely appropriate." We hasten to add, however, that where the provisions of the Maine statute differ substantively from their federal counterparts, as is the case here, deference to construction of the federal version is unwarranted.

II.

We also disagree with the trial court's finding that federal law would preempt the Legislature's extension of protection against age discrimination to persons outside the federally protected age group.

The United States Supreme Court has held that "preemption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons--either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.' " Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522, 101 S.Ct. 1895, 1905, 68 L.Ed.2d 402 (1981), quoting Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981). The federal district court in Simpson v. Alaska State Commission for Human Rights, 423 F.Supp. 552, 555 (D.Alaska 1976), aff'd, 608 F.2d 1171 (9th Cir.1979), explained when preemption is appropriate: "Preemption occurs when compliance with both federal and state regulations is physically impossible, the nature of the subject matter requires...