Critics say Gov. Paul LePage’s decision to challenge a federal court’s ruling that the Civil Rights Act protects gay and transgender workers from discrimination casts Maine in a bad light and could hurt the state’s economic development efforts.
But a LePage spokesman said the governor is simply trying to prevent “activist judges” from rewriting federal laws, noting that Maine already has its own state law against all types of workplace discrimination, which LePage supports.
Ed McKersie, founder and president of the Portland staffing and recruiting firm Pro Search Inc., said that while he is not well-versed in the legal arguments involved in the U.S. Supreme Court case, he thinks LePage’s decision to insert himself into it looks bad for Maine.
“Viewed simply from an economic development and workforce perspective, these actions aren’t helpful,” McKersie said. “We want everyone to see our state as welcoming, especially when workforce retention and attraction are so critical to the future of Maine.”
With an unemployment rate that has dipped below 3 percent this year, Maine is facing a tight labor pool. Many employers have repeatedly complained of the difficulties of recruiting and retaining new hires.
LePage has joined 15 other states in asking the Supreme Court to rule that companies can fire workers based on their sexual orientation and gender identity without violating federal workplace discrimination law.
In an Aug. 23 amicus curiae – or friend of the court – brief filed with the Supreme Court, LePage is listed as one of 16 petitioners, who include 13 Republican attorneys general and two other Republican governors.
‘UP TO CONGRESS, NOT ACTIVIST JUDGES’
The brief argues that Congress did not intend for the ban on sex discrimination in the 1964 Civil Rights Act to cover bias against lesbian, gay, bisexual or transgender employees. That law, they claim, was intended to prevent discrimination on the basis of sex, not gender identity.
According to court records, the brief was filed by two members of Nebraska’s Attorney General Office. They ask the Supreme Court to overturn a 6th U.S. Circuit Court of Appeals decision against a Michigan funeral home that fired a transgender worker.
LePage spokesman Peter Steele described the governor’s action not as an attack on LGBT workers, but rather as an effort to protect the government’s established system of checks and balances. There was no cost to sign on to the brief, he said.
Steele said LePage opposes the manner by which the protection was granted, and not the protection itself.
“If the federal government wants to revise its own discrimination laws, that is up to the Congress, not activist judges,” Steele said. “The 6th Circuit has not only ignored the will of Congress, but also supplanted itself as an unelected legislature of three with the power to rewrite congressional enactments in violation of separation of powers. The role of the courts is to interpret the law, not to rewrite the law by adding new, unintended meaning.”
Steele noted that Maine’s anti-discrimination law was updated to include protections for LGBT workers via approval of the Legislature, “which is how changes to law should be made.” He added that LePage supports the current Maine law protecting LGBT workers from discrimination.
CANDIDATES SUPPORT INCLUSION, DIVERSITY
Laws in 20 states, including Maine, ban employment discrimination based on sexual orientation and gender identity.
But independent candidate for governor Alan Caron said LePage’s decision to get involved in the federal case “couldn’t be more wrong.”
“Once again he is sending a terrible message to the country that Maine is a place that is not accepting of anyone who is different,” Caron said. “That message is killing our economy because we need people of all kinds. It appears the governor is more interested in being part of a far-right national agenda than properly serving Maine’s needs.”
Maine Attorney General Janet Mills, the Democratic nominee for governor, also criticized LePage for joining the amicus brief. LePage was joined in the brief by the Republican governors of Kentucky and Mississippi. The other states included in the filing were Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming.
“I strongly disagree with Gov. LePage and believe that the law is both clear and right: No person should be fired because of their gender identity or sexual orientation,” Mills said. “As governor, I will fight to ensure that all Maine people are treated fairly and equally and with dignity and respect. Anything less than that is wrong and out of step with Maine values.”
Lauren LePage, daughter of Gov. LePage and campaign manager for Republican gubernatorial candidate Shawn Moody, who is also owner of Moody’s Collision Centers, did not comment specifically on her father’s decision to join the amicus brief, but noted that Moody’s does not discriminate against LGBT workers.
“The Moody’s business does not base personnel decisions on sexual orientation or gender identity,” she said. “It’s important for employers to have standard, consistent interpretation of laws so they can be adequately enforced. The Maine state law is very clear, and as governor Shawn will enforce all of Maine’s laws.”
Independent gubernatorial candidate Terry Hayes also did not directly comment on LePage’s action but voiced her support for equal protection of all workers.
“How we treat one another matters,” Hayes said. “I support nondiscrimination laws that protect LGBT Mainers and Americans. As governor, I will oppose legislation to undermine Maine’s nondiscrimination laws.”
JOB CREATORS SAY THEY BACK PROTECTIONS
Several businesses and trade groups echoed support of Maine’s labor protections, noting the importance of inclusion and diversity in the workforce.
Quincy Hentzel, executive director of the Portland Regional Chamber of Commerce, said her organization is focused on adherence to Maine’s anti-discrimination law.
“The Portland Regional Chamber supports and follows current Maine law – the Maine Human Rights Act – that prohibits workplace discrimination on, among other things, the basis of sexual orientation,” Hentzel said. “We have not evaluated the Civil Rights Act and do not have an opinion regarding its scope.”
Carolyn Beem, senior public affairs manager at Freeport-based retailer L.L. Bean Inc., said her company has “a culture of inclusion as well as a company policy to support it.”
“To do anything otherwise would not be in the spirit of the company core values of respecting all people,” Beem said.
Giovani Twigge, chief human resources officer at Westbrook-based Idexx Laboratories Inc., said Idexx values “diversity and inclusion.”
“Including individuals with different perspectives and backgrounds at Idexx is the right thing to do, and it enhances our innovative and collaborative spirit, which has been the engine driving our financial performance and growth,” Twigge said. “We provide equal employment opportunity to qualified individuals regardless of personal characteristics, including race, religion, gender, gender identity, sexual orientation, national origin, age, disability or other personal characteristics protected by law.”
J. Craig Anderson can be contacted at 791-6390 or at: