Current through 2024-13, March 27, 2024
A.
Unlawful Discrimination Specified in
§ 4591 and § 4592 of the Act
(1) As stated in § 4591 of the Act, the
opportunity for every individual to have equal access to places of public
accommodation without discrimination because of physical or mental disability
is recognized as and declared to be a civil right. §4553(8) defines "place
of public accommodation" as including "all public conveyances operated on land,
water or in the air as well as the stations and terminals thereof."
(2) As stated in § 4592 of the Act, it
shall be unlawful public accommodations discrimination for any person, being
the owner, operator, lessee, proprietor, manager, superintendent, agent or
employee of any public conveyance, to directly or indirectly refuse, withhold
from or deny to any person, on account of physical or mental disability, any of
the accommodations, advantages, facilities or privileges of such public
conveyance, or for such reason in any manner discriminate against any person in
the price, terms or conditions upon which access to such accommodation,
advantages, facilities and privileges may depend.
As stated in § 4592 of the Act, it shall be unlawful
public accommodations discrimination for any person to directly or indirectly
publish, circulate, issue, display, post or mail any written, printed, painted
or broadcast communication, notice or advertisement, to the effect that any of
the accommodations, advantages, facilities or privileges of any public
conveyance shall be refused, withheld from or denied to any person on account
of physical or mental disability, or that the patronage of any person having
any particular physical or mental disability is unwelcome, objectionable, or
not acceptable, desired or solicited, or that the clientele thereof is
restricted to members who do not have a particular physical or mental
disability. The production of any such written, printed, painted or broadcast
communication, notice or advertisement, purporting to relate to any such
conveyance, shall be presumptive evidence in any action that the same was
authorized by its owners, manager or proprietor.
B.
Use of Personal Care Attendants,
Animal Aides and Devices to Assist in Mobility
It shall be unlawful public accommodations discrimination for
any public conveyance to directly or indirectly refuse, withhold from or deny
to any personwith a physical or mental disability, on account of such a
person's use of a personal care attendant, animal aide, cane, wheelchair,
crutches or any device used to assist in mobility, any of the accommodations,
advantages, facilities, or privileges of a public conveyance, or for such
reason in any manner discriminate against any person in the price, terms or
conditions upon which access to such accommodations, advantages, facilities, or
privileges may depend. A public conveyance may require a person with a physical
or mental disability using a personal care attendant to obtain authorization
from a physician and have a designated sticker, provided by the public
conveyance on their Medicaid card and/or bus pass.
It shall be unlawful discrimination for any public conveyance
to require payment of an extra charge on account of a person with a physical or
mental disability using a personal care attendant, animal aide, cane,
wheelchair, crutches, or any device used to assist in mobility.
C.
Harassment on the Basis
of Physical or Mental Disability
(1)
Harassment on the basis of physical or mental disability is a violation of
§ 4592 of the Maine Human Rights Act.
Unwelcome comments, jokes, acts and other verbal or physical
conduct related to physical or mental disability constitute harassment on the
basis of physical or mental disability when:
(a) submission to such conduct is made either
explicitly or implicitly a term or condition of an individual's access to or
use of any of the accommodations, advantages, facilities or privileges of any
public conveyance; or
(b)
submission to or rejection of such conduct by an individual is used as a basis
for decisions or actions on behalf of the public conveyance affecting such
individual's access to any of the accommodations, advantages, facilities, or
privileges of any public conveyance; or
(c) such conduct has the purpose or effect of
unreasonably interfering with an individual's access to or use of any of the
accommodations, facilities, advantages, or privileges of a public conveyance,
or has the purpose or effect of creating an intimidating, hostile, or offensive
environment on the public conveyance.
(2) A public conveyance is responsible for
its acts and those of its supervisory employees and employees whose job
includes regular contact with the public with respect to physical or mental
disability harassment regardless of whether the specific acts complained of
were authorized or even forbidden by the public conveyance, and regardless of
whether the public conveyance knew or should have known of their
occurrence.
(3) With respect to
persons other than those mentioned in paragraph 2 of this section, a public
conveyance is responsible for acts of physical or mental disability harassment
in the public conveyance where the public conveyance knows or should have known
of the conduct. A public conveyance may rebut apparent liability for such acts
by showing that it took immediate and appropriate corrective action.
D.
Obligation to Make
Reasonable Accommodations
(1) Equal
Access Required
As stated in § 4591 of the Act, the opportunity to have
equal access to public conveyance is a civil right. If treating persons with
and without physical or mental disabilities the same will not provide the
opportunity for equal access to a public conveyance for persons with physical
or mental disabilities, then reasonable accommodations to the needs of such
persons must be made.
It is unlawful public accommodations discrimination for a
public conveyance to fail or refuse to make reasonable accommodations to the
physical or mental limitations of persons with physical or mental disabilities
unless the public conveyance can demonstrate that a reasonable accommodation
does not exist or that an accommodation would impose an undue burden on the
operation of the public conveyance.
(2) Integration Required
Reasonable accommodation shall be made in a way that
maximizes integration of persons with and without physical or mental
disabilities. Separate service is not an acceptable substitute for making a
public conveyance accessible, if a public conveyance can be made accessible
without undue burden.
(3)
Separate Service
If reasonable accommodations cannot be made to provide access
for a person with a physical or mental disability to a regular, integrated
public conveyance, then separate service must be provided.
Separate service, where used to provide access to
transportation to persons who cannot be reasonably accommodated on a regular
public conveyance without undue burden, should provide service that is as
nearly equal as possible to the service provided by the regular public
conveyance in terms of the following criteria:
(a) area covered;
(b) times of service;
(c) notice required;
(d) fares; and
(e) restrictions on trip purpose;
(f) persons who may accompany the
rider.
(4) Types of
Reasonable Accommodations Required.
Reasonable accommodations to ensure access to public
conveyances shall include but not be limited to the following types of
accommodations:
(a) removing or
modifying physical barriers, installing equipment, or designing retrofitting
conveyances so that persons with physical or mental disabilities have access to
the conveyance and its accommodations, advantages, facilities, and
privileges.
(b) ensuring that any
accessible conveyance and any equipment or facility used to make a conveyance
accessible is regularly maintained in proper operating condition so that the
public conveyance is accessible to persons with physical or mental disabilities
to the same extent as the conveyance is accessible to persons without physical
or mental disabilities.
(c)
ensuring that personnel are trained and supervised to safely and properly
operate any accessible conveyance and any equipment or facility used to make, a
conveyance accessible.
(d) ensuring
that, in keeping with the courteous and respectful treatment befitting and
normally given to all members of the public, personnel are trained and
supervised with regard to the particular needs and concerns of people who have
physical or mental disabilities.
(e) ensuring that effective means of
communication are provided so that persons with impaired hearing or vision can
have full access to the public conveyance.
(f) ensuring that information about
accessible conveyances is adequately publicized to persons with physical or
mental disabilities. Accessible conveyances shall be prominently marked with
the International Symbol of Accessibility.
(g) ensuring that adequate assistance and
instruction on the use of accessible conveyances is available to persons with
physical or mental disabilities.
E.
Undue Burden
(1) No accommodation is required that would
impose an undue burden on the operation of the public conveyance.
(2) This exception for undue burden shall be
construed narrowly as an exception to the general rule requiring reasonable
accommodation in light of the policy stated in § 4591 of the Act that the
opportunity to have equal access to public conveyance is a civil
right.
(3) The public conveyance
has the burden of proving that an accommodation would impose an undue burden on
the operation of the public conveyance. Undue burden can be established only
upon a factual basis, not on mere speculation.
(4) Even if a proposed accommodation imposes
an undue burden, any other accommodation which does not create an undue burden
must still be made to ensure the fullest possible access to the public
conveyance.
(5) The following
factors will be used to determine whether an accommodation imposes undue
burden:
(a) the costs of the
accommodation;
(b) all the
resources available to meet the costs of the accommodation, including any
government funding or other grants available for making conveyances
accessible;
(c) the availability of
equipment and technology for the accommodation;
(d) the safety of other users of a public
conveyance;
(e) whether an
accommodation would result in a fundamental change in the nature of the public
conveyance;
(f) efforts to minimize
costs by spreading costs over time; for example, by phasing in new accessible
conveyances;
(g) efforts to
minimize costs by arranging for joint purchases of accessible equipment or for
otherwise sharing costs of accommodations with other public
conveyances;
(h) documented good
faith efforts to explore less restrictive or less expensive
alternatives;
(i) the extent of
consultation with knowledgeable disabled persons and organizations; the extent
to which current costs of accommodations have been minimized by past efforts to
provide equal access to persons with physical or mental disabilities;
(j) the extent to which current costs of
accommodations have been minimized by past efforts to provide equal access to
persons with physical or mental disabilities;
(k) the extent to which resources spent on
improving inaccessible equipment or service could have been spent on making an
accommodation so that service or equipment is accessible to persons with
physical or mental disabilities as well as persons without physical or mental
disabilities;
(l) the extent to
which resources saved by failing to make an accommodation for persons with
physical or mental disabilities could have been saved by cutting costs in
equipment or services for the general public;
(m) the extent to which the accommodation
would provide access to persons with physical or mental disabilities or improve
the usability for all persons.
(6) Factors which should not contribute to a
determination that an accommodation imposes an undue burden shall include but
are not limited to:
(a) a preference by users
or employees of a public conveyance not to have an integrated public
conveyance;
(b) costs of making a
public conveyance accessible which have resulted from a past refusal to make
public conveyances accessible as required by the Act; and
(c) assumptions on the part of the operator
of the conveyance about persons with physical or mental disabilities.
F.
Accommodations
Required for Buses Purchased, Leased, or Substantially Altered After the
Effective Date of the Regulations
(1)
For buses purchased, leased or substantially altered after the effective date
of the regulations, the Commission finds that the technology and equipment
readily exist to make buses accessible to wheelchair users, and that the costs
of purchasing accessible low-floored buses and the costs of purchasing buses
with lifts do not impose undue burdens.
(2) Therefore, bus systems must make
reasonable accommodations so that the requirements of F (3) are met, unless the
bus system can prove, based on specific factual evidence, that the requirements
would result in an undue burden on the operation of the public
conveyance.
(3) All buses
purchased, leased, or substantially altered after the effective date of the
regulations, must meet the following requirements:
(a) Buses must be accessible to persons using
a wide variety of wheelchairs, including electric wheelchairs, without
carrying. Buses should be designed so that there is sufficient space to
maneuver a wheelchair with minimal effort through doors and aisles within the
bus to seating areas.
(b) Buses
having a seating capacity for 21 or more passengers must have seating areas and
securement devices for at least two people with wheelchairs. Buses having a
seating capacity for 20 or fewer passengers must have seating areas and
securement devices for at least one person with a wheelchair.
(c) Lifts or ramps must be designed to allow
safe use by all persons with mobility impairments.
(d) Lifts, ramps, securement devices and
other equipment used to make buses accessible must be consistently maintained
in proper operating condition so that the bus is consistently accessible. Bus
systems using lifts must have a program of appropriate preventive
maintenance.
(4) Even if
the bus system is exempt from the requirements of F (3) because they would
result in an undue burden, the bus system must still make other reasonable
accommodations to make the bus system as accessible as is possible without
undue burden.
(5) Operation of
public conveyance systems must include the following:
(a) Bus drivers and maintenance personnel
must be trained and supervised to safely and properly operate lifts, ramps, and
other equipment used to make buses accessible.
(b) To ensure sensitivity to the particular
needs and concerns of people who have physical or mental disabilities, and in
keeping with the courteous and respectful treatment befitting and normally
given to all members of the public, public conveyances shall implement
appropriate training and supervision measures for their personnel in
consultation with organizations representative of persons with physical or
mental disabilities.
(c)
Instructions for wheelchair users and other persons with mobility impairments
on how to use lifts and other equipment must be readily available. Instruction
shall include the opportunity to practice using lifts and other equipment used
to make the bus accessible.
(d)
Advertising for buses must include publicity about accessible buses. Accessible
buses must be marked with the International Symbol of Accessibility. Schedules
must include information on accessible buses and routes. Media images should
show persons with physical or mental disabilities as an integrated part of the
mainstream.
