The new counsel to the Maine Human Rights Commission, Barbara Archer Hirsch, spoke to the Employment Section of the Maine Bar Association yesterday. She announced one significant change in how the Commission would be processing charges, but did not otherwise anticipate major changes of policy or procedure. The investigators will no longer rule on the issue of constructive discharge- they see it as a damages issue only that they should not weigh in on.
A plaintiff’s attorney sitting next to me expressed concern because, for example, in a whistleblower’s case, he sees the constructive discharge as a tangible employment action, an essential element of the charge. Despite the Law Court’s recent holding, the Commission will still process some kinds of claims against individual supervisors- where the accusation is that the supervisor “aided and abetted” the discrimination or retaliated against an employee. Ms. Archer Hirsch acknowledged that the remedy against an individual would not include monetary damages.
Unfortunately, Ms. Archer Hirsch indicated the Commission does not currently have a plan to reduce its backlog or expedite processing charges. All in all, the mission seems to be to carry on the status quo.