Mundell v. Acadia Hospital Corp.

92 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: February 1, 2024
• Docket: 22-1394
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1394

CLARE E. MUNDELL,

Plaintiff, Appellee,

v.

ACADIA HOSPITAL CORP.,

Defendant, Appellant,

EASTERN MAINE HEALTHCARE SYSTEMS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

Melissa A. Hewey, with whom Kasia S. Park and Drummond Woodsum were on brief, for appellant Acadia Hospital.

Valerie Z. Wicks, with whom Borealis Law, PLLC, David G. Webbert, and Johnson & Webbert, LLP were on brief, for appellee Clare E. Mundell.

Janna L. Gau, Kady S. Huff, and Eaton Peabody on brief for the Maine State Chamber of Commerce, amicus curiae.

Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, ACLU of Maine Foundation, Gillian Thomas, ACLU Foundation Women's Rights Project, Sunu Chandy, and National Women's Law Center on brief for the American Civil Liberties Union, American Civil Liberties Union of Maine, and National Women's Law Center, amici curiae.

February 1, 2024

- 2 - LIPEZ, Circuit Judge. Paid half the rate earned by her

male colleagues for comparable work as psychologists, appellee

Clare Mundell brought this sex discrimination action against her

former employer, Acadia Hospital ("Acadia"), under federal and

state law.1 Ruling on Mundell's summary judgment motion, the

district court found Acadia liable under the Maine Equal Pay Law

("MEPL"), Me. Stat. tit. 26, § 628, and awarded Mundell treble

damages, see id. § 626-A. On appeal, Acadia claims the district

court erred in holding Mundell could prevail as a matter of law on

her MEPL claim because Mundell did not establish Acadia's

discriminatory intent and because Acadia asserted a viable

reasonable-factor-other-than-sex affirmative defense to explain

the pay differential between Mundell and her male colleagues. The

hospital further asserts that treble damages are not available for

violations of the MEPL.

This case raises complex issues involving the

construction of Maine law. Acadia moved, both in the district

court and on appeal, for certification of a two-part question to

the Maine Supreme Judicial Court (the "Law Court"),2 the answer to

1Eastern Maine Healthcare Systems ("Eastern Maine") was also named as a defendant but later dismissed. 2The Maine Supreme Judicial Court is referred to as the Law Court when it is sitting in its capacity as an appellate court and when it considers questions of state law referred to it by federal courts. See Me. Stat. tit. 4, § 57 ("When it appears to the Supreme Court of the United States, or to any court of appeals or - 3 - which depends on whether discriminatory animus -- i.e., an intent

to discriminate -- is a required element of a MEPL claim.3 Like

the district court, however, we conclude that certification is

unnecessary. We also agree with the district court's construction

of the relevant Maine statutes. Accordingly, we affirm the

judgment and award of damages for Mundell.

I.

The facts relevant to the issues before us are

undisputed. Mundell is a licensed clinical psychologist who, for

district court of the United States, that there is involved in any proceeding before it one or more questions of law of this State, which may be determinative of the cause, and there are no clear controlling precedents in the decisions of the Supreme Judicial Court, such federal court may certify any such questions of law of this State to the Supreme Judicial Court for instructions concerning such questions of state law, which certificate the Supreme Judicial Court sitting as the Law Court may, by written opinion, answer."). 3 Acadia requests that we certify the following question involving constructions of the MEPL and 26 M.R.S. § 628:

Where an employer pays an employee at a rate less than another employee of the opposite sex who performs comparable work on a job with comparable requirements as to skill, effort, and responsibility for any reason other than an established seniority system, merit increase system, or difference in the shift or time of the day worked, does such conduct constitute a per se violation of the Maine Equal Pay Law, 26 M.R.S. § 628, entitling a plaintiff to recover treble damages and attorneys' fees pursuant to 26 M.R.S. § 626- A?

- 4 - two and a half years beginning in 2017, was employed by Acadia, a

nonprofit hospital in Bangor, Maine. Acadia employed a "pool" of

five psychologists during this time, comprising two men and three

women. Acadia paid the two male psychologists at a rate of $95

and $90 per hour, respectively, but paid the female pool

psychologists around $50 per hour.

During a conversation with a fellow pool psychologist,

Mundell learned that her male colleagues were paid more than her.

Subsequently, she learned about other pay disparities between men

and women in other jobs at Acadia. Believing the pay discrepancy

between herself and her colleagues to be sex-based, she brought it

to the attention of management. Around this time, Acadia

independently became aware of several sex pay disparities among

hospital employees and began a process to standardize pay across

sexes. After a series of conversations between Mundell and Acadia

in which the parties attempted to arrive at a mutually agreeable

solution, Mundell informed Acadia on March 6, 2020, that she would

be resigning, citing the differential between her wage and that of

her male counterparts. Although she told Acadia she would work

for two weeks after submitting her resignation to transition her

patients, Mundell was informed on March 9, 2020, that she should

not return to work after finishing the day.

The parties agree that all the pool psychologists,

including Mundell, possessed the same fundamental qualifications

- 5 - for the role: doctoral degrees and licenses to practice psychology

in Maine, and comparable experience and skills in providing

psychological services. Acadia also concedes that it did not pay

its pool psychologists differently pursuant to any seniority

system, difference in shift or time of day worked, or merit

increase system. Instead, it says that a "'market-based'

compensation structure" (hereinafter "market factors") explained

any pay disparity between Mundell and her male colleagues.

Mundell filed an administrative complaint for state and

federal sex discrimination and retaliation with the Maine Human

Rights Commission, which also was cross-filed with the Equal

Employment Opportunity Commission. After exhausting the

administrative process, she filed the instant action in federal

court. Mundell alleged that Acadia and Eastern Maine violated the

MEPL by paying male and female employees different wages for

"comparable work," Me. Stat. tit. 26, § 628; that Acadia and

Eastern Maine's failure to provide equal pay amounted to sex

discrimination in violation of the Maine Human Rights Act ("MHRA"),

Me. Stat. tit. 5, § 4572(1)(A), and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and that Acadia and Eastern

Maine committed unlawful retaliation by firing her after she

complained of sex-based discrimination, in violation of Title VII,

the MHRA, and the Maine Whistleblower Protection Act, Me. Stat.

tit. 26, § 833(1)(A).

- 6 - In September 2021, Mundell moved for partial summary

judgment only on her MEPL claim against Acadia, asserting that the

undisputed facts -- the acknowledged pay disparity for comparable

work that Acadia admitted was not due to an established seniority

system, merit pay system, or shift differences -- established

Acadia's liability under the state's equal pay statute. In

opposing the motion, Acadia argued that this showing was

insufficient for Mundell to prevail as a matter of law because the

statute also required a showing of intent to discriminate, or,

alternatively, Acadia should be permitted to raise the affirmative

defense that it relied on a reasonable factor other than sex (i.e.,

market factors) to set these wages. Mundell countered that any

requirement to establish discriminatory intent for the unequal pay

would read an intent requirement into the text of the MEPL when

there is none, and that market factors did not constitute a valid

affirmative defense under the MEPL. One day after the district

court held oral argument on that motion, Acadia filed its Motion

for Certification to the Law Court.

On February 8, 2022, the district court issued its

decision addressing both the certification and partial summary

judgment motions. The district court first held that certification

to the Law Court was inappropriate because the plain language of

the MEPL, the statute's legislative history, comparable statutes

and precedent, and public policy all provided more than enough

- 7 - evidence of how the Law Court would likely resolve the issues of

statutory interpretation raised by the parties. Mundell v. Acadia

Hosp. Corp., 585 F. Supp. 3d 86, 90-91 (D. Me. 2022). The district

court then analyzed the MEPL's statutory language (viewing it as

plain and unambiguous); applicable case law under the Federal Equal

Pay Act ("FEPA"), 29 U.S.C. § 206(d), and similar state statutes

(viewing them as analogous); and the MEPL's legislative history

(viewing it as instructive). See Mundell, 585 F. Supp. 3d at 91-

95.

The court concluded that this material compelled the

following holdings: (1) the MEPL does not impose an intent

requirement on a plaintiff, nor does it permit a defendant to rely

on a catch-all affirmative defense (i.e., claiming that pay

differences are based on "any reasonable differentiation except

difference in sex") because the MEPL explicitly limits affirmative

defenses to pay differentials based on seniority, merit, or

differences in shift/time of day worked, id. at 92-94 (concluding

that "the act of paying unequal wages for comparable work

establishes discrimination on the basis of sex under the [MEPL],"

and refusing to "will into existence by judicial fiat a catchall

affirmative defense that does not exist in the text of the law");

and (2) those who violate the MEPL can be obligated to pay treble

damages, id. at 99 (analyzing Me. Stat. tit. 26, § 626-A).

- 8 - The parties then filed a Joint Stipulation of Dismissal

with Prejudice of Mundell's Title VII and MHRA claims against

Acadia as well as all of Mundell's claims against Eastern Maine.

The district court entered a judgment of dismissal in accordance

with the parties' stipulation. It also entered judgment against

Acadia and in favor of Mundell for a violation of the MEPL and

awarded Mundell $180,955.90 (the damages she requested in full).

This judgment was a final judgment and disposed of all of Mundell's

claims.

In addition to filing its appeal, Acadia asked us to

certify to the Law Court the same question involving statutory

construction it had raised before the district court. We denied

the motion without prejudice to consider along with the merits of

the appeal. Acadia also seeks review of the district court's grant

of partial summary judgment, arguing that the court erred in its

construction of Maine law by: (1) holding that a plaintiff need

not show an intent to discriminate to succeed with a claim under

the MEPL, and that, in so concluding, the court also incorrectly

read the MEPL to have only limited affirmative defense categories;

and (2) holding that treble damages are available for MEPL

violations.

II.

We review an order granting summary judgment de novo.

Benson v. Wal-Mart Stores E., L.P., 14 F.4th 13, 17 (1st Cir. - 9 - 2021). The interpretation of a statute or regulation, which

presents a purely legal question, is likewise subject to de novo

review. O'Connor v. Oakhurst Dairy, 851 F.3d 69, 71 (1st Cir.

2017).

A. Certification

When faced with potentially outcome-determinative

questions of Maine law for which "there is no clear controlling

precedent in the decisions of the Supreme Judicial Court," a

federal court may certify those questions to the Law Court "for

instructions" on how to rule. Me. R. App. P. 25. However, "a

federal court . . . should not simply throw up its hands but,

rather, should endeavor to predict how that court would likely

decide the question." Butler v. Balolia, 736 F.3d 609, 612-13

(1st Cir. 2013) (citing In re Bos. Reg'l Med. Ctr., Inc., 410 F.3d

100, 108 (1st Cir. 2005)). Indeed, we should not "bother our busy

state colleagues with every difficult state-law issue that comes

our way," Plourde v. Sorin Group USA, Inc., 23 F.4th 29, 36 (1st

Cir. 2022) (citing Patel v. 7-Eleven, Inc., 8 F.4th 26, 29 (1st

Cir. 2021)), particularly in cases where "state law is sufficiently

clear to allow us to predict its course." In re Engage, Inc., 544

F.3d 50, 53 (1st Cir. 2008) (emphasis added) (observing that

"certification would be inappropriate" in such cases "even in the

absence of controlling precedent"). Moreover, as our circuit

colleague long ago recognized, not only does certifying questions

- 10 - "add to the workload of the responding court," it also places a

burden of time and expense on parties asked to redevelop, re-

brief, and reargue the same issue multiple times in different fora.

Hon. Bruce M. Selya, Certified Madness: Ask a Silly Question . . .,

29 Suffolk U. L. Rev. 677, 682, 689-90 (1995).

Here, the district court denied certification because

"'the plain language of the statute, legislative history and public

policy[] all' point in the same direction and make the correct

constructions of [the] MEPL and § 626-A sufficiently clear."

Mundell, 585 F. Supp. 3d at 91 (quoting Int'l Ass'n of Machinists

& Aerospace Workers v. Verso Corp., 121 F. Supp. 3d 201, 227 (D.

Me. 2015)). We agree with the thoughtful analysis of the district

court. As our discussion below demonstrates, certification is

unnecessary and inappropriate because the factors cited by the

district court, which the Law Court also would consider, provide

us with ample guidance.

B. The MEPL and "Intent to Discriminate"

When asked to determine the meaning of a Maine statute

that the Law Court has not yet interpreted, we "predict 'how that

court likely would decide the issue.'" Barton v. Clancy, 632 F.3d

9, 17 (1st Cir. 2011) (quoting González Figueroa v. J.C. Penney

P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009)). When

interpreting a statute, Maine courts "give effect to the

Legislature's intent by considering the statute's plain meaning

- 11 - and the entire statutory scheme of which the provision at issue

forms a part." Scamman v. Shaw's Supermarkets, Inc., 157 A.3d

223, 229 (Me. 2017) (quoting Samsara Mem'l Tr. v. Kelly, Remmel &

Zimmerman, 102 A.3d 757, 771 (Me. 2014)). "Only if the plain

language of the statute is ambiguous" should courts "look beyond

[it] to examine other indicia of legislative intent, such as

legislative history." Id. The Law Court also has stressed that

"[n]othing in a statute may be treated as surplusage if a

reasonable construction applying meaning and force is otherwise

possible." State v. Murphy, 130 A.3d 401, 404 (Me. 2016)

(alteration in original) (quoting State v. Lowden, 87 A.3d 694,

697 (Me. 2014)); see also State v. Dubois Livestock, Inc., 174

A.3d 308, 311 (Me. 2017) ("We reject interpretations that render

some language mere surplusage." (quoting Dickau v. Vt. Mut. Ins.

Co., 107 A.3d 621, 628 (Me. 2014))).

The MEPL provides in relevant part4:

An employer may not discriminate between employees in the same establishment on the basis of sex by paying wages to any employee in any occupation in this State at a rate less than the rate at which the employer pays any employee of the opposite sex for comparable

4 As of October 25, 2023, an amended version of the MEPL codified at Me. Stat. tit. 26, § 628 also prohibits pay discrimination on the basis of race. We rely on the prior version of the statute in effect at the time Mundell filed suit, which contains identical language with respect to sex-based discrimination and affirmative defenses but did not include the prohibition on race-based pay discrimination.

- 12 - work on jobs that have comparable requirements relating to skill, effort and responsibility. Differentials that are paid pursuant to established seniority systems or merit increase systems or difference in the shift or time of the day worked that do not discriminate on the basis of sex are not within this prohibition.

Me. Stat. tit. 26, § 628. Because the parties agree that Acadia

paid Mundell and the other female psychologists less than it paid

the male psychologists, and that these employees all occupied the

same job and performed comparable work to one another, the

undisputed facts of this case arguably establish -- as Mundell has

asserted -- the core elements of a MEPL claim. Acadia has further

acknowledged that these pay differences resulted from something

other than an established seniority system, merit pay system, or

shift differences. Hence, the MEPL's three enumerated affirmative

defenses do not on their face shield Acadia from MEPL liability.

Acadia argues, however, that the district court wrongly

concluded that the undisputed facts were sufficient to establish

Acadia's liability under the MEPL as a matter of law.

Specifically, Acadia says the district court incorrectly construed

the MEPL to be a law of strict liability, namely "read[ing]" out

of the liability portion of the statute "the words 'discriminate'

and 'on the basis of sex.'" Under this flawed construction, Acadia

asserts, "an employer who pays employees different rates of pay on

the basis of their geographic assignments, their ability to

- 13 - generate business, their willingness to relocate, or any number of

legitimate business reasons, is deemed to have discriminated

against the lower paid employee simply because the two employees

happen to be of different sexes." Acadia claims that reading the

statute to exclude an intent element, in combination with reading

the statute to provide only the three listed affirmative defenses,

would have devastating practical consequences for Maine businesses

surely not intended by the Maine Legislature.

Mundell insists, as the district court concluded, that

the provision unambiguously imposes liability for established (or

admitted to) pay differences between male and female employees for

comparable work in comparable jobs without regard to the employer's

intent, and allows as defenses only the three specified, facially

sex-neutral rationales for the challenged pay disparity so long as

those practices do not, in fact, arise from sex-based

discrimination.

Thus, the questions before us are: (1) whether Acadia's

liability under the MEPL depends on a finding that its unequal

treatment of male and female psychologists resulted from

discriminatory intent, a factual issue that would need to be

explored on remand; and (2) whether Acadia can justify the pay

disparity, and avoid liability, based on a sex-neutral rationale

that is not one of the three affirmative defenses identified in

the MEPL, another issue that would need factual development and

- 14 - foreclose summary judgment for Mundell.

1. Plain Language of the Statute

As described above, Acadia's primary textual argument is

that "on the basis of sex" in the first sentence of the MEPL

inescapably means "because of sex" -- i.e., liability attaches

only if the employer is intentionally paying one group of employees

less "because of" their sex. Acadia further argues that, even if

we conclude that the liability portion of the statute does not

include intent as an element, Mundell still cannot prevail on her

MEPL claim as a matter of law because the statute's second sentence

contemplates affirmative defenses based on virtually any

reasonable, non-sex-based explanation for the challenged pay

differential.5

Acadia's construction of the MEPL does not withstand

careful review. Like the district court, we conclude that

Mundell's reading is the only reasonable interpretation of the

MEPL's text and, hence, that the statute is unambiguous. See

Scamman, 157 A.3d at 229 ("Statutory language is considered

ambiguous if it is reasonably susceptible to different

interpretations." (quoting Zablotny v. State Bd. of Nursing, 89

5Acadia seems to qualify its view by accepting that employers could not defend against liability by invoking illegitimate, arbitrary, or unreasonable rationales for a sex-based differential in pay.

- 15 - A.3d 143, 148 (Me. 2014))); cf. Bloate v. United States, 559 U.S.

196, 208 (2010) (observing that statutory interpretation is not

undermined simply because the statute is "amenable to another

interpretation").

That is not to say the MEPL's language is

straightforward. A statute's complexity, however, does not

necessarily render it ambiguous. See, e.g., Kisor v. Wilkie, 139

S. Ct. 2400, 2415 (2019) (noting that "a court cannot wave the

ambiguity flag just because it found the regulation impenetrable

on first read"); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) ("The

statute is awkward, and even ungrammatical; but that does not make

it ambiguous . . . ."); Pauley v. BethEnergy Mines, Inc., 501 U.S.

680, 707 (1991) (Scalia, J., dissenting) (declaring that a text is

not ambiguous merely because "discerning the only possible

interpretation requires a taxing inquiry").

The district court tackled the interpretive challenge

posed by the MEPL. As the court carefully explained, the

provision's first sentence is plainly a statement of liability --

that is, the sentence describes when an employer will be found in

violation of the MEPL's prohibition on discrimination: "An

employer may not discriminate between employees . . . on the basis

of sex by paying [unequal wages] for comparable work . . . ." Me.

Stat. tit. 26, § 628 (emphasis added). If an employer does what

is described after the word "by" -- i.e., the employer pays unequal

- 16 - wages to male and female employees for comparable work in jobs

with comparable requirements -- the employer is, under the

statutory definition, discriminating on the basis of sex. We agree

with the district court that this language provides no role for

the employer's motivation. The sentence states, without

qualification, that it is the unequal pay, not the reasons for it,

that constitutes the impermissible discrimination.6

Reading the MEPL's liability sentence to exclude a

requirement of intent is further compelled when that sentence is

viewed alongside the statute's next sentence specifying certain

permissible employer defenses to liability. As the district court

observed, if the MEPL required proof of intent to establish

liability, it would necessarily follow that virtually all policies

or systems of pay disparity between men and women not rooted in

The fact that state and federal antidiscrimination statutes 6

with substantively similar or identical language permit plaintiffs to raise disparate impact claims further bolsters this point. For example, Title VII prohibits discrimination "because of" a protected trait and has been interpreted to proscribe not only intentional discrimination, but also facially neutral practices that disparately impact members of a certain class regardless of the employer's underlying motivation. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 422 (1975) ("Title VII is not [exclusively] concerned with the employer's 'good intent or absence of discriminatory intent[,]' for 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.'" (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971))). Likewise here, the phrase "discriminate ... on the basis of sex" cannot reasonably be construed to prohibit only intentional discrimination as Acadia insists.

- 17 - intentional sex discrimination would fall outside the reach of the

MEPL. See Mundell, 585 F. Supp. at 93. But the MEPL's second

sentence negates any such interpretation of the statute.

The MEPL's second sentence reads: "Differentials that

are paid pursuant to established seniority systems or merit

increase systems or difference in the shift or time of the day

worked that do not discriminate on the basis of sex are not within

this prohibition." Me. Stat. tit. 26, § 628. Mundell argues that

construing the MEPL's first sentence to include an intent

requirement would effectively incorporate an unwritten "catch-all

defense" into the statute, defeating claims where employers point

to any legitimate rationale other than intentional sex

discrimination to explain the pay disparity. Indeed, that is, in

essence, what Acadia asks us to do when it asserts that its market

factors rationale is a legitimate defense to MEPL liability.

But if the statute's first sentence had an intent

requirement, these three affirmative defenses would be mere

illustrations of reasons for pay differentials that do not

constitute intentional sex discrimination. There is no textual

evidence, however, to read these affirmative defenses as examples

or parts of a non-exhaustive list (e.g., "including" or "such as").

See Lee v. Massie, 447 A.2d 65, 68 (Me. 1982) ("Because the Maine

Legislature omitted such language indicating the illustrative

nature of its earlier definitional formulation ... we conclude

- 18 - that [it] intended [the provision] to constitute a comprehensive

and exclusive definition."); cf. Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 162 (2012) (observing that the use of the

word "includes" is "significant because it makes clear that the

examples enumerated in the text are intended to be illustrative,

not exhaustive"); United States v. Daniells, 79 F.4th 57, 69 (1st

Cir. 2023) ("The use of the word 'includes' in the statutory

definition . . . indicates . . . that the definition . . .

encompasses more than [the two items listed]."); Carroll v. Trump,

49 F.4th 759, 768-69 (2d Cir. 2022) (noting that the word

"includes" suggests that the subsequent examples are illustrative,

not exhaustive).7 Consequently, the MEPL's plain text forecloses

Acadia's attempt to invoke a broader reading of the statute's

second sentence.

Moreover, the three affirmative defenses chosen by the

Maine Legislature are logical exceptions to the MEPL's otherwise

all-encompassing prohibition against sex-based pay differentials.

Seniority and merit-increase systems, as well as variations in

working hours or conditions, are well-established and well-known

bases for wage differentials. See, e.g., Corning Glass Works v.

7In suggesting that the MEPL's second sentence could be serving such an illustrative or clarificatory purpose, the dissent refers to these enumerated affirmative defenses as "safe harbors." That nomenclature, whatever its purpose, does not alter our analysis. - 19 - Brennan, 417 U.S. 188, 204 (1974) (discussing night-shift

scheduling); 29 U.S.C. § 206(d) (specifying seniority and merit

systems among the acceptable reasons for pay differentials under

the FEPA). There is nothing implausible about insulating just

those three types of employment practices -- and not others --

from MEPL liability.

It is also significant that the MEPL's second sentence

contains a limitation: the three enumerated pay practices will

shield an employer from MEPL liability only if their use in a

particular instance, though resulting in a difference in pay across

sexes, was not motivated by an employee's sex. See Me. Stat. tit.

26, § 628.8 If the grounds for liability set forth in the first

sentence of the MEPL required a showing of intent, there would be

no need for the second sentence to state that the "established

8 The logic of that qualification can be illustrated through the paradigmatic circumstances presented in Corning Glass Works v. Brennan, 417 U.S. 188 (1974), a case brought under the FEPA. The Court rejected pay disparities based on facially neutral criteria if they resulted from a history of paying women less than their male counterparts. See id. at 196-97, 204, 209-10. The Court explained that, if a company believed that women were incapable of working the night shift and therefore allowed only men to work that shift for higher pay, the company could not then claim protection under the affirmative defense of "a difference in the shift or time of the day worked" because the employer's discriminatory intent shaped the shift distribution in the first place. See id. at 196-97 (reasoning that the FEPA contemplates that a male night shift worker may receive a higher wage than a female day worker but only if that pay differential was due to the difference in the time worked and not because of sex).

- 20 - seniority systems," "merit increase systems," and "differences in

the shift or time of the day worked" only provide a defense to

MEPL liability if they themselves "do not discriminate on the basis

of sex." Id. The question of whether the system or shift

differential resulted from the employer's discriminatory

motivation would already have been answered.

Hence, as the district court concluded, the only

reasonable construction of the MEPL is that liability attaches

with proof that employees of one sex are being paid less than

employees of another sex for comparable work in comparable jobs,

regardless of intent,9 unless an employer can demonstrate that the

disparity stems from the second sentence's three listed exceptions

-- and, even then, only if those excepted practices are not

traceable to purposeful sex-based discrimination.

We recognize that this construction of the MEPL results

in our reading the statute's first use of the phrase "discriminate

. . . on the basis of sex" differently from its second use of the

same phrase. But that difference does not undermine our

Establishing each of these elements is no easy threshold 9

for a plaintiff to meet. As the district court recognized, what may be most unusual about this case was Acadia's willingness to concede, for the purposes of summary judgment, that Mundell performed "comparable work" on a job that had "comparable requirements relating to skill, effort, and responsibility" as her male peers but received different pay than her male peers. Mundell, 585 F. Supp. 3d at 95.

- 21 - construction of the MEPL. In the first sentence, the job of

"discriminate . . . on the basis of sex" is simply to define the

prohibited discrimination. In the second sentence, which

identifies three practices that may involve permissible pay

differentials between the sexes, the job of the phrase is to narrow

the carve-out to only those seniority systems, merit systems, and

shift differentials that do not mask discriminatory motivation.

The phrase plainly has a different purpose in each sentence of the

MEPL, and we think it is both appropriate and permissible to

construe it differently as required by those differing contexts.

We are well aware, as the dissent argues, that there is

a presumption that the same words in the same statute have the

same meaning. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990)

("Identical words used in different parts of the same act are

intended to have the same meaning." (cleaned up)); Att'y Gen. v.

Sanford, 225 A.3d 1026, 1030-31 (Me. 2020) (nearly identical

statutory language demonstrates legislative intent to establish

rights judged on equivalent terms). But that presumption "is not

rigid." United States v. Cleveland Indians Baseball Co., 532 U.S.

200, 213 (2001). The presumption has limits because "[m]ost words

have different shades of meaning and consequently may be variously

construed, not only when they occur in different statutes, but

when used more than once in the same statute or even in the same

section." Env't Def. v. Duke Energy Corp., 549 U.S. 561, 574

- 22 - (2007) (alteration in original) (quoting Atl. Cleaners & Dyers,

Inc. v. United States, 286 U.S. 427, 433 (1932)).

Thus, the principle that a word ordinarily should be

given the same meaning each time it is used within the same statute

"readily yields" whenever the context demands a different

conclusion -- i.e., when it is only reasonable to conclude that

the same word or phrase was used differently in different parts of

the statute. See Gen. Dynamics Land Sys., Inc., v. Cline, 540

U.S. 581, 595-97 (2004) (quoting Atl. Cleaners & Dyers, Inc., 286

U.S. at 433). That is the situation that exists in the MEPL. Cf.

Cleveland Indians Baseball Co., 532 U.S. at 213 (noting that the

phrase "wages paid" has different meanings in different parts of

the statute); Robinson v. Shell Oil Co., 519 U.S. 337, 343–344

(1997) (noting that the term "employee" has different meanings in

different parts of Title VII); Senty v. Bd. of Osteopathic

Examination & Registration, 594 A.2d 1068, 1071 (Me. 1991) ("We

must conclude that the Legislature did not intend unreasonable or

absurd consequences, or results inimical to the public interest,

and must interpret a statute to avoid such contradictions."); Pub.

Serv. Co. of N.H. v. Assessors of Town of Berwick, 183 A.2d 205,

208 (Me. 1962) ("Statutory canons and rules of interpretation are

helpful, necessary, time-tested and revered but are to be

judiciously consulted and applied.").

Thus, though the dissent characterizes this reading of

- 23 - the statute's plain language as internally "contradictory," we

disagree. Statutory construction is always contextual, and here

we are giving the words the meanings derived from their differing

contexts within the same statutory provision. A narrowly applied

intent requirement in the context of a limited number of

affirmative defenses is fully consistent with a liability

provision that generally bars both intentional and unintentional

sex-based differences in pay.

The dissent further suggests that our reading of the

statute impermissibly results in "superfluous" language because

the liability provision's use of the phrase "discriminate . . . on

the basis of sex" is "seemingly unnecessar[y]" to accomplish the

statute's anti-discrimination objective. Acadia similarly argues

that a reading of the MEPL that excludes a requirement of

intentional discrimination impermissibly "deletes" that phrase

from the statute's first sentence. Their view, in other words, is

that the statute -- if intent is not an element -- could have been

drafted more simply to say only that employers were prohibited

from "paying wages to any employee . . . at a rate less than the

rate at which the employer pays any employee of the opposite sex."

Me. Stat. tit. 26, § 628. Hence, the statute's express bar against

discriminating "on the basis of sex" -- if it does not require

intent -- is arguably redundant. Such redundancy, according to

Acadia and the dissent, is incompatible with the Law Court's strong

- 24 - and consistent rebuke of any statutory readings yielding

"surplusage." See, e.g., Dubois Livestock, Inc., 174 A.3d at 311.

Acadia and the dissent, however, are drawing a false

equivalence with these contentions. They seemingly take the view

that words that are arguably unnecessary in a statute are

equivalent to the "mere surplusage" disavowed by the Law Court.

The canon of surplusage does not sweep so broadly. In interpreting

statutory text, courts instead are instructed to think more

pragmatically:

If possible, every word and every provision is to be given effect (verba cum effectu sunt accippienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

Justice Antonin Scalia & Bryan A. Garner, A Dozen Canons of

Statutory and Constitutional Text Construction, 99 Judicature 2

(2015) (reciting the "canon of surplusage"). We adhere closely to

that instruction here.

First, we are neither ignoring nor otherwise rendering

inconsequential the statute's first use of the phrase

"discriminate . . . on the basis of sex." Instead, we ascribe to

the phrase definite meaning, explaining its role in defining the

prohibited discrimination. Cf. Chickasaw Nation v. United States,

534 U.S. 84, 97-98 (O'Connor, J., dissenting) (noting that

statutory language is not "mere surplusage," even when redundant,

- 25 - if and when "it means something"). Indeed, our dissenting

colleague acknowledges the "useful function" for the phrase in the

liability sentence: the words could serve the expressive function

of "clarifying" that the conduct following the word "by" is "itself

a type of 'discriminat[ion] . . . on the basis of sex.'" A

"useful" reading -- even if "seemingly unnecessar[y]" or merely

"clarifying," as minimized by the dissent -- is surely a

"reasonable construction" that is consistent with Maine precedent.

See Lowden, 87 A.3d at 697 (stressing that "[n]othing in a statute

may be treated as surplusage if a reasonable construction applying

meaning and force is otherwise possible" (quoting State v. Harris,

730 A.2d 1249, 1251 (Me. 1999))).

Second, and critically, our reading retains the meaning

of the MEPL's second sentence in its entirety. As we have

explained, if no intent means no liability, an employer could

assert any reasonable non-sex-based rationale for a differential

in pay to shield itself from MEPL liability -- creating an

unwritten catch-all affirmative defense that would be at odds with

the second sentence's circumscribed exceptions to liability.

Maine law does not indulge such conflicts. Emphasizing this very

point, the Law Court recently rejected a proposed reading of the

word "designated" in a state statute that "would eviscerate" the

meaning of another phrase in the same statute. See Sanford, 225

- 26 - A.3d at 1030-31. In sum, "we will not interpret a statute in such

a way as to render some words meaningless." Id. at 1031.

We thus reiterate that, as a matter of the statute's

plain and unambiguous language, the MEPL's liability provision

does not incorporate an intent element, and its affirmative

defenses are limited to those specifically enumerated. Although

not essential for that holding, we find additional support for the

plain meaning of the statute in the evident discord between

Acadia's asserted reading of the MEPL and comparable statutes,

precedent, and legislative history. We turn to that confirming

material.

2. Comparable Statutes & Precedent

As both Mundell and the district court point out, federal

and state courts have read the phrase "discriminate on the basis

of" in similarly structured anti-discrimination statutes to not

require intent. See, e.g., Corning Glass Works, 417 U.S. at 196

(construing the FEPA); Jancey v. Sch. Comm. of Everett, 658 N.E.

2d 162, 170 (Mass. 1995) (construing the Massachusetts Equal Pay

Act); Vt. Hum. Rts. Comm'n v. Vt. Dep't of Corr., 136 A.3d 188,

195-96 (Vt. 2015) (construing the Vermont equal pay law). Case

law interpreting this phrase in other statutes thus serves to

reinforce our reading of the MEPL's plain text and undermines

Acadia's argument that "discriminate . . . on the basis of" may

only be reasonably read to mean "because of" sex, thus requiring

- 27 - discriminatory intent.

a. FEPA

We start with the federal analog to the MEPL, the FEPA,

and the caselaw construing it. See Gordon v. Me. Cent. R.R., 657

A.2d 785, 786 (Me. 1995) (reasoning that when the Law Court has

not yet interpreted a statute, "Maine courts may look to analogous

federal statutes, regulations, and case law for guidance"). When

the Law Court looks to relevant federal authority, it does so only

"when the federal and state laws are substantially identical," and

otherwise construes Maine discrimination laws to give effect to

any differences. Scamman, 157 A.3d at 233 (quoting Percy v. Allen,

449 A.2d 337, 342 (Me. 1982)).

Although the 1949 MEPL10 predates the FEPA, the Maine

10 The final 1949 text read as follows:

Sec. 40-A. Wage rates for equal work; penalty; exception. No employer shall employ any female in any occupation within this state for salary or wage rates less than the salary or wage rates paid by that employer to male employees for equal work. However, nothing in this section shall prohibit a variation in salary or wage rates based upon a difference in seniority, experience, training, skill, ability, or difference in duties or services performed, either regularly or occasionally, or difference in the shift or time of the day worked, or difference in availability for other operation, or other reasonable differentiation except difference in sex. Any individual, association or corporation who violates the provisions of this section shall - 28 - Legislature amended the MEPL in 1965 -- shortly after the FEPA's

passage in 1963 -- with the resulting, refurbished state statute

noticeably resembling its federal counterpart both in how it

defined the proscribed conduct and in how it set forth available

defenses. See Elizabeth J. Wyman, The Unenforced Promise of Equal

Pay Acts: A National Problem and Possible Solution from Maine, 55

Me. L. Rev. 23, 26 (2003) (comparing P.L. 1965, ch. 150, U.S.C.

§ 628 with Equal Pay Act of 1963, Pub. L. No. 88-38, § 3, 77 Stat.

56, 57 (1963)).11 Since 1965, the MEPL and the FEPA have continued

to share this same structure as well as the key statutory language

in their liability provisions: employers may not "discriminate"

"between employees" in the same establishment "on the basis of

be punished by a fine of not more than $ 200.

Me. Pub. L. 1949, ch. 262, § 40-A. 11 In relevant part, the FEPA states:

No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .

29 U.S.C. § 206(d).

- 29 - sex" "by" paying lower wages to "employees of the opposite sex"

for work that is comparable (under the Maine law) or equal (under

the federal law), unless an enumerated exception applies. Compare

Me. Stat. tit. 26, § 628 with 29 U.S.C. § 206(2)(1); see also

Wyman, supra, at 42-43.

It has long been established that the FEPA does not

require any showing of intent. See, e.g., Corning Glass Works,

417 U.S. at 196. As the MEPL "generally track[s]" the FEPA's

liability provision, the case law interpreting the FEPA

"provide[s] significant guidance in the construction" of the state

law. See Me. Hum. Rts. Comm'n v. City of Auburn, 408 A.2d 1253,

1261 (Me. 1979) (quoting Me. Hum. Rts. Comm'n v. Local 1361, Me.,

383 A.2d 369, 375 (Me. 1978)).

What is more, the textual differences between the MEPL

and the FEPA evince an intent to make the MEPL more protective

than its federal counterpart, not less so. The FEPA uses an

"equal" work standard while the MEPL applies to "comparable" work

-- a more capacious concept.12 Given this broader protection for

employees in the MEPL, it would be particularly odd to read an

intent requirement that does not exist in the FEPA into the MEPL's

The parties agree that the comparable work standard is 12

broader than the equal work standard. Massachusetts courts have also been clear that the comparable work standard in that state's equal pay law is more protective than the equal pay standard in the FEPA. See Jancey, 658 N.E.2d at 167; Wyman, supra, at 42-43.

- 30 - liability provision.

The dissent contends that there are simply too many

differences between the substance and structure of the two statutes

for the FEPA, and precedents interpreting the statute, to be seen

as comparable and instructive in our interpretation of the MEPL's

plain text. In particular, the dissent draws significance from

the fact that the MEPL's liability provision and its affirmative

defense provision are separated into two distinct sentences,

whereas the FEPA's are combined into one sentence separated by the

word "except." The dissent also points to the MEPL's duplicate

use of the phrase "discriminate . . . on the basis of sex" compared

to the FEPA's single use.

But state discrimination laws need not be perfectly

congruent with federal counterparts for courts to look to those

federal statutes for guidance -- particularly when the state

statute, as is the case here, "generally track[s]" the federal

analogue. City of Auburn, 408 A.2d at 1261. Moreover, departing

from the settled understanding that the FEPA does not contain an

intent requirement to conclude that intent is required for

liability under the MEPL would give notably different meanings to

the very similar liability provisions in the state and federal

laws. The dissent's proposed reading therefore creates a large

gap between the two statutes in disregard of their textual

parallels.

- 31 - By contrast, our reading both preserves the equivalence

between the state and federal statutes' substantive liability

provisions and recognizes the substantial differences in their

affirmative defense provisions. Although the FEPA, like the MEPL,

enumerates several specific affirmative defenses, the federal

statute, unlike the MEPL, goes on to provide a catch-all

affirmative defense ("a differential based on any other factor

other than sex," 29 U.S.C. § 206(d)). In addition, as we have

explained, the MEPL qualifies its enumerated affirmative defenses

with the requirement that they not stem from sex-based

discrimination, whereas the FEPA does not include that limitation.

Compare id., with Me. Stat. tit. 26, § 628.

The significance we draw from the equivalence between

the state and federal statutes' nearly identical liability

provisions is not diminished by the differences in their handling

of affirmative defenses. By contrast, Acadia's reading of the

MEPL, echoed by the dissent, reads the MEPL and FEPA's affirmative

defense provisions to have the same scope, implausibly ignoring

the two statutes' obvious textual differences.13

Our dissenting colleague accuses us of overstating the 13

influence of the FEPA on the MEPL's language, suggesting that we are overreaching when we assign meaning to the differences between the federal and state laws as well as to their similarities. To the contrary, we are simply reading text, giving indisputable meaning to similar language in the liability provisions and dissimilar language in the affirmative defense provisions.

- 32 - b. Comparable State Pay-Equity Statutes

Our reading also is reinforced strongly by analogous

pay-equity statutes from other states. Indeed, our holding that

discriminatory intent is not a required element of viable wage

discrimination claims in Maine conforms with the consensus view of

state and federal courts throughout the country.

Nearly thirty years ago, for example, the Massachusetts

Supreme Judicial Court ("SJC") read the Massachusetts Equal Pay

Act ("MEPA") to not require proof of an employer's discriminatory

intent to establish liability. Like the MEPL, the MEPA has a

liability provision followed by an affirmative defenses provision.

The MEPA's liability provision similarly prohibits employers from

"discriminat[ing] . . . in the payment of wages as between the

sexes" and "pay[ing] any person [a lesser wage] than the rates

paid to employees of the opposite sex for [like or comparable

work]." See Jancey, 658 N.E.2d at 165-66 (quoting Mass. Gen. Laws

ch. 149, § 105A (1994)).14 Construing this language, the SJC held

that "the plain language of the statute does not require a finding

14According to the Jancey court, at that time, the 1994 MEPA contained just one enumerated affirmative defense (seniority systems) but had no enumerated "catch-all" affirmative defense. The present-day MEPA by contrast contains numerous enumerated affirmative defenses, including seniority and merit systems, but continues to not incorporate into its plain language that an employer can permissibly assert an any-reasonable-factor-other- than-sex catch-all affirmative defense. Compare Jancey, 658 N.E.2d at 170, with Mass. Gen. Laws ch. 149, § 105A (2018).

- 33 - of purposeful discrimination." Id. at 170.15

Applying similar logic to that of the SJC, a wide variety

of state courts have likewise read their own pay-equity laws --

with liability provisions akin to (even if not identical to) the

MEPL and the FEPA in both wording and structure -- to not require

proof of an employer's discriminatory intent to establish

liability. See, e.g., Vt. Hum. Rts. Comm'n, 136 A.3d at 196

(discriminatory intent is not a required element of state equal

pay statute); Green v. Par Pools, Inc., 3 Cal. Rptr. 3d 844, 847-

49 (Cal. Ct. App. 2003) (same); Kolstad v. Fairway Foods, Inc.,

457 N.W.2d 728, 734 (Minn. Ct. App. 1990) (same). Several more

state courts have held that claims brought under their own pay-

equity statute ought to be analyzed identically to FEPA claims --

which, as discussed, has no malintent requirement -- despite

various differences in phrasing in their respective liability or

15 Just as Acadia does here, the Massachusetts employer in Jancey had contended that a MEPA violation should include an intent element even though the FEPA does not. The employer argued that "the lack of an intent requirement in [the] FEPA is equitable because [the FEPA] contains several affirmative defenses, including a broad catch-all defense," whereas the MEPA contains only one affirmative defense. Jancey, 658 N.E.2d at 170. Hence, to be equitable, "the [Massachusetts] Legislature" must have "intended to restrict the [MEPA] to purposeful acts." Id. Rejecting the argument that an intent element should be inferred "based on the dearth of affirmative defenses [in the MEPA]," the SJC instead held that "the statute on its face creates a form of strict liability" whenever an employer pays "members of one sex . . . at a lower rate than members of the opposite sex for work of like or comparable character." Id.

- 34 - affirmative defense provisions. See, e.g., Paris-Purtle v. State,

No. X10UWYCV146025212, 2015 WL 5622517, at *4 (Conn. Super. Ct.

Aug. 14, 2015) (state pay act construed like the FEPA); Adams v.

Univ. of Wash., 722 P.2d 74, 77 (Wash. 1986) (same); Hudon v. W.

Valley Sch. Dist. No. 208, 97 P.3d 39, 43 (Wash. Ct. App. 2004)

(same). Federal courts have also uniformly read pay-equity

statutes from a variety of states to not require discriminatory

intent. See, e.g., Spiewak v. Wyndham, Inc., No. 20-13643, 2023

WL 869309, at *5 (D.N.J. Jan. 26, 2023); Reynolds v. Stovall, No.

11-04006, 2012 WL 1202026, at *6 (W.D. Ark. Apr. 10, 2012);

Tolliver v. Child.'s Home-Chambliss Shelter, 784 F. Supp. 2d 893,

903-904 (E.D. Tenn. 2011); Grudier v. Hendel's, Inc., No.

308CV369JBA, 2008 WL 1924971, at *1 (D. Conn. Apr. 30, 2008).

Like the district court, we find persuasive and

instructive this uniformity of state and federal court

interpretation of a vast array of state statutes -- many of which

are as singular in their wording and structure as the MEPL. On

the other hand, we have found only one state16 that seemingly

16 Louisiana has both an "Intentional Discrimination in Employment" statute -- prohibiting employers from "[i]ntentionally pay[ing] wages to an employee at a rate less than that of another employee of the opposite sex for equal work on jobs in which their performance requires equal skill, effort, and responsibility and which are performed under similar working conditions," La. Stat. Ann. § 23.332(A)(3) (emphasis added) -- as well as the state's Equal Pay for Women Act ("LEPWA"), a pay-equity statute that closely mirrors the FEPA and has no intent requirement. See id. - 35 - requires an employee to prove an employer acted with discriminatory

intent to prevail on a state unequal wage claim: Oklahoma. In

notable contrast to the MEPL, Oklahoma's equal pay statute compels

such an interpretation with unambiguous statutory language to this

effect -- i.e., it is illegal to "willfully pay" different wages

to men and women. See Okla. Stat. Ann. tit. 40, § 198.1 (2023)

("It shall be unlawful for any employer within the State of

Oklahoma to willfully pay wages to women employees at a rate less

than the rate at which he pays any employee of the opposite sex

for comparable work on jobs which have comparable requirements

relating to skill, effort and responsibility") (emphasis added).17

Yet, in the face of all this evidence to the contrary,

the dissent proclaims that our interpretation of the MEPL's plain

language births "a far more sweeping prohibition" than "most pay-

equity statutes in the country." To support this assertion, the

dissent argues that our citation to states stretching from

Massachusetts to California, and Arkansas to Minnesota, are inapt

for a hodgepodge of unconvincing reasons, mostly nitpicking

differences in wording in each state's statutory language as

§ 23:664. It does not appear that any courts have interpreted the LEPWA or otherwise reconciled the two statutes.

17There do not appear to be published court decisions outlining or otherwise analyzing the required elements of Oklahoma's pay-equity statute.

- 36 - compared to the MEPL.

Citing to a table compiled by "The Pay Equity Project,"

for example, the dissent suggests that states not requiring proof

of discriminatory intent to establish equal-pay-statute liability

typically endeavor to offer balance through the concomitant

provision of a "catch-all" affirmative defense like that found in

the FEPA. But this sweeping observation by the dissent is not

accurate. Nearly a dozen states do not provide for a "reasonable

factor other than sex" affirmative defense in their respective

pay-equity statutes.18 Yet, to our knowledge, no court has read

any one of these comparable state statutes to require the element

of discriminatory intent to establish liability.

The dissent does concede that three states have equal-

pay statutes containing language it deems similar enough to the

MEPL's "discriminate . . . on the basis of sex" language and

structure to be analogous to Maine's law: Idaho, South Dakota, and

Kentucky. The dissent insists, however, that there is "literally"

no way to discern how courts in Idaho, South Dakota, and Kentucky

18See Pay Equity Project, Fifty-State Pay Equity Law Summary (Nov. 10, 2021), https://www.law.uci.edu/centers/pay-equity- project/images/50-state-law-chart.pdf [https://perma.cc/D979- DG2C] (captured December 22, 2023) (describing each state statute and its employer defenses to pay-equity law violations, including the following states with no catch-all affirmative defense: Colorado, Idaho, Maine, Massachusetts, Montana, New Mexico, Oregon, South Dakota, Texas, Utah, and Wisconsin).

- 37 - might interpret their own state's pay-equity statute. But, in

fact, state and federal courts in Idaho have signaled that Idaho's

statute also does not require a showing of discriminatory intent.

See Perkins v. U.S. Transformer W., 974 P.2d 73, 75, 78 (Idaho

1999) (allowing jury verdict to stand finding employer liable under

the state’s pay-equity statute for paying different wages to male

and female employees, but not finding the employer liable for

"willful" discrimination under Idaho’s analogue to Title VII),

overruled on other grounds by Poole v. Davis, 288 P.3d 821, 825

n.1 (Idaho 2012); Johnson v. Canyon Cnty., No. 19-364, 2020 WL

5077731, at *2-3 (D. Idaho Aug. 27, 2020) (noting that the parties

agreed that Idaho's pay-equity statute is to be construed in

lockstep with the FEPA). Similarly, by "applying federal

standards" to "wage discrimination claims arising under"

Kentucky's pay-equity statute, federal courts in Kentucky have not

required plaintiffs raising state law pay discrimination claims to

show intent. Johnson v. Pennyrile Allied Cmty. Servs., No. 20-

071, 2022 WL 1004873, at *15 (W.D. Ky. Apr. 4, 2022); accord Perry

v. AutoZoners, LLC, 954 F. Supp. 2d 599, 607 (W.D. Ky. 2013)

("Kentucky courts analyze disparate wage claims under federal law

standards."); Wiseman v. Whayne Supply Co., 359 F. Supp. 2d 579,

588 (W.D. Ky. 2004), aff'd, 123 F. App'x 699 (6th Cir. 2005)

(citing elements of a FEPA claim as applicable to Kentucky's pay-

equity statute).

- 38 - The dissent goes on to insist, oddly, that Washington’s

pay-equity statute employs language that "invite[s] a requirement

to prove such intent" to establish liability. See Wash. Rev. Code

§ 49.58.020 ("Any employer . . . who discriminates in any way in

providing compensation based on gender between similarly employed

employees . . . is guilty of a misdemeanor.").19 In fact,

Washington courts have recognized explicitly that the state's pay-

equity statute is to be interpreted in lockstep with the FEPA --

strongly suggesting that Washington’s statute does not require an

employee to establish discriminatory intent.20 See Adams, 722 P.2d

19As recognized by the dissent, despite a liability provision similar to that of the MEPL, the Washington statute also differs from the MEPL in various respects -- most notably, it contains, in addition to an enumerated list of exceptions to liability, an explicit catch-all affirmative defense.

20 Indeed, in this regard, Washington hardly stands alone. As detailed above, a plethora of state pay-equity statutes have been interpreted by both state and federal courts just like the FEPA - - including, for example, both Connecticut, Conn. Gen. Stat. Ann. § 31-75(a), and New Jersey, N.J. Stat. Ann. § 34:11-56.2. See Fairchild v. Quinnipiac Univ., 16 F. Supp. 3d 89, 96 (D. Conn. 2014) ("Claims brought pursuant to the Connecticut Equal Pay Act [("CEPA")] are analyzed under the same standard as the [FEPA]." (quoting Morse v. Pratt & Whitney, No. 10-01126, 2013 WL 255788, at *11 (D. Conn. Jan. 23, 2013))); Paris-Purtle, 2015 WL 5622517, at *4 (summarizing that the Fairchild court "set forth the standard under which CEPA claims are viewed for legal sufficiency," including Fairchild's description that CEPA claims are analyzed identically to FEPA claims); Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903, 911 (N.J. 1990) (describing that the New Jersey Equal Pay Act ("NJEPA") has "remained dormant," but "exemplifies an enduring legislative policy that is protective of the interest and status of women in the employment setting"); Spiewak, 2023 WL 869309, at *5 (recognizing that "courts considering NJEPA claims analyze such claims under the framework of the federal EPA," and - 39 - at 77 (noting that a prior version of Washington's equal pay act

codified at Wash. Rev. Code § 49.12.175 was "virtually identical

to the federal Equal Pay Act" and relying on FEPA cases to

interpret the Washington statute as a matter of first impression);

Hudon, 97 P.3d at 43 (summarizing that "Washington's equal pay act

. . . is virtually identical to its federal counterpart," such

that "[d]ecisions interpreting the federal act may then be

helpful," and the court must "construe it to fulfill the underlying

purpose of the legislature, which was to sweep away outmoded

inequities and assure women equal pay for equal work" (citations

omitted)); Gardner v. Wells Fargo Bank, NA, No. 19-0207, 2021 WL

2931341, at *6 (E.D. Wash. July 12, 2021) (explaining that under

both the Washington equal pay statute and the FEPA, "[a] plaintiff

must demonstrate a prima facie case by showing men and women

received different pay for equal work," without any reference to

an intent requirement).

Moreover, the dissent itself has not identified a single

federal or state court decision construing any state pay-equity

law to require intent to establish liability. Acadia likewise

made no effort to do so -- despite the district court's direct

invitation for supplemental authority to support Acadia's

interpretation of the MEPL's statutory text. Given this remarkable

finding that the plaintiff stated a prima facie case under the NJEPA without showing intent). - 40 - consistency across state and federal court holdings, there seems

little reason to suspect that state courts in South Dakota or

Kentucky -- the other states with pay-equity statutes that the

dissent considers similar enough to the MEPL -- would have any

reason to reach a different conclusion.

In short, as far as we can tell, no pay-equity law,

federal or state, has ever been construed by a court to require

discriminatory intent to establish liability. Declining to read

the MEPL to contain an unwritten intent element is hardly

aggressive, somehow rendering Maine's statute "far more sweeping"

than other pay-equity statutes in the country. It is, to the

contrary, wholly congruent with overwhelming precedent. Indeed,

to require intent would make Maine's equal pay statute the nation's

distinct outlier.

3. Legislative History

We recognize that, because we conclude that the MEPL's

text is clear, Maine law advises against examining the statute's

legislative history. See, e.g., Scamman, 157 A.3d at 229 (holding

that courts should only "look beyond [a statute's text]" to examine

"legislative history" "if the plain language . . . is ambiguous").

Nonetheless, given the parties' discussion of legislative history

at oral argument, and the district court's discussion of that

factor in its analysis, we address it briefly. That history, scant

though it is, further accords with our reading of the MEPL's plain

- 41 - text and undercuts Acadia's position.

As discussed by the district court, the original MEPL

was passed by the Maine Legislature in 1949 without a purpose

statement, a record of debate in the House or Senate, or committee

commentary. See Mundell, 585 F. Supp. at 94-95; Wyman, supra, at

26. That law, as noted, included an equal work standard and

several affirmative defenses, including a catch-all defense

allowing a defendant to avoid liability upon a showing that the

wage differentials were due to any "other reasonable

differentiation except difference in sex." See Me. Pub. L. 1949,

ch. 262, § 40-A.21

In 1963, Congress enacted the FEPA, which included an

equal pay standard, just like the 1949 MEPL, and also included the

catch-all affirmative defense that we have described: there would

be no liability if the pay differential was "based on any other

factor other than sex." Equal Pay Act of 1963, Pub. L. No. 88-

38, 77 Stat. 56; 29 U.S.C. § 206(d). As noted above, two years

after Congress adopted the FEPA, the Maine Legislature revised the

MEPL and adopted the language at issue in this case.

The initial version of the revised MEPL introduced in

the Maine Senate would have amended the first sentence of the 1949

21 See also supra note 10, and accompanying text.

- 42 - MEPL to read: "[n]o employer shall employ any female in any

occupation within this State for salary or wage rates less than

the salary or wage rates paid by that employer to male employees

for equal or comparable work." L.D. 1189, 102d Leg. (Me. 1965).

The bill then underwent revisions. There is no record explaining

the reason for the revisions, and the bill was enacted again

without a purpose statement, commentary, or debate. See Wyman,

supra, at 28. However, the amendment's timing and the resemblance

between the revised MEPL and the FEPA suggest that "the Legislature

was reacting to passage of the federal Equal Pay Act two years

earlier." Id. at 28-29.

The likely relationship between the adoption of the FEPA

and the amended MEPL is reflected in both the statutes'

similarities and their differences. As detailed above, see supra

Section II.B.2.a, the final text of the 1965 MEPL closely mirrors

the structure of the FEPA, suggesting that the Maine Legislature

took cues from the federal provision. Those similarities, however,

also suggest that the MEPL's departures from the FEPA are

meaningful: (1) replacing the FEPA's "equal work" standard with a

less stringent "comparable work" standard; (2) opting not to

include FEPA's catch-all defense; and, (3) unlike the FEPA,

qualifying its three defenses to ensure that they are not pretext

for discriminatory animus.

In Scamman, 157 A.3d at 232, addressing another Maine

- 43 - anti-discrimination statute, the Law Court determined that because

the catch-all "reasonable-factor-other-than age" language "already

existed in the ADEA when the" Maine Human Rights Act ("MHRA") "was

enacted," the fact that such language was "absent from the MHRA

sheds significant[] . . . light on the Legislature's intent."

Hence, we are following Maine precedent by looking to the almost

identical liability provision of the FEPA for guidance on how to

read the MEPL's liability provision and giving effect to the

differences between the two statutes' affirmative defenses

provisions.22

It is also significant that, over the next several

decades, the Maine Legislature neither revised the liability

provision to clarify that intent is required nor reinstated the

catch-all defense from the pre-1965 iterations of the MEPL -- even

after the FEPA and similarly worded state pay-equity laws were

interpreted by courts not to require a discriminatory motive. See,

e.g., Corning Glass Works, 417 U.S. at 196; Jancey, 658 N.E.2d at

22To be sure, the Scamman court stressed that the affirmative defense provisions of the MHRA and the ADEA were not "substantively identical," because "[u]nlike the ADEA, the MHRA does not contain" a catch-all "reasonable factor other than age" affirmative defense. Scamman, 157 A.3d at 233. The Scamman Court therefore reasonably observed, as the dissent highlights, that "neither the text of the [federal statute] nor the federal cases applying that text provide[d] helpful guidance for interpreting" the affirmative defense provision of the MHRA. Id. But this aspect of the Scamman precedent hardly undermines our conclusion that the FEPA, and interpretative case law, are instructive in analyzing the substantively similar liability provision of the MEPL. - 44 - 170; Vt. Hum. Rts. Comm'n, 136 A.3d at 196. In the half-century

since the 1972 Corning Glass Works decision -- when the FEPA's

identical "discriminate . . . on the basis of sex" language was

read to prohibit certain pay disparities even absent proven

discriminatory intent by the employer, 417 U.S. at 196 -- the Maine

Legislature has revised or supplemented the MEPL seven times, each

time making it more effective at remedying gaps in pay between men

and women. These legislative acts did not revisit the liability

or affirmative defense provisions of the 1965 text but rather

altered a penalties provision,23 added a new paragraph to the MEPL

that established Equal Pay Day as a holiday,24 required the

Department of Labor to annually report on progress made within the

state to comply with the MEPL,25 directed the Department of Labor

to adopt rules in consultation with the Maine Human Rights

Commission to improve compliance with the MEPL,26 mandated that

Me. Pub. L. 1983, ch. 652, § 4. The last sentence of the 23

MEPL had at one point imposed a $200 fine on employers who violated the equal pay law. This was deleted in 1983. At the same time, the Maine Legislature amended § 626-A, governing "Penalties," to provide that violation of certain enumerated labor laws, including the MEPL, would result in a fine of "not less than $100 or more than $500 for each violation." Id. § 2. The current version of the Penalties section provides that an employer who violates the MEPL "is subject to a forfeiture of not less than $100 nor more than $500 for each violation." Me. Stat. tit. 26, § 626-A. 24 Me. Stat. tit. 1, § 145 (Supp. 2001). 25 Me. Pub. L. 2001, ch. 304, § 2. 26 L.D. 329, 18th Leg., 1st Reg. Sess. (Me. 1997).

- 45 - employers allow employees to disclose their own wages or inquire

about the wages of others in order to enforce the MEPL,27 and passed

§ 628-A to prohibit employers from inquiring about compensation

history when hiring a prospective employee.28 Indeed, each time

the Maine Legislature has opted to revisit the wording of the MEPL

over the years, it has consistently made legislative choices to

ensure that the state law would be more protective of the rights

of employees than its federal counterpart.

In fact, in 2023 the Maine Legislature again revisited

the language of the MEPL, revising it significantly, this time to

add race as an additional covered group under the MEPL. See Me.

Pub. L. 2023, ch. 266. Importantly, this legislative decision

occurred well after the district court issued its 2022 decision

holding that liability under the MEPL does not depend on a showing

of intent. We, along with the Law Court, presume that the

Legislature enacted that revision to the MEPL with knowledge of

27 Me. Pub. L. 2009, ch. 29, § 1. 28Me. Rev. Stat. tit. 26, § 628-A. Of particular relevance, the Maine Legislature's 2019 statutory provision included the following language: "The Legislature finds that despite requirements regarding equal pay having been a part of the laws of Maine since 1965, wage inequality is an ongoing issue in the State. Wage inequality causes substantial harm to the citizens and to the economy of the State." The new statutory language then makes clear that the Legislature was banning employers from inquiring about past compensation because such a practice "directly perpetuates [] wage inequality."

- 46 - the district court's decision. See, e.g., Blier v. Inhabitants of

Town of Fort Kent, 273 A.2d 732, 734 (Me. 1971) (recognizing that

the Maine Legislature is presumed to enact laws "in view of, and

with reference to, existing laws and judicial decisions" (cleaned

up)). Hence, we read significance into the Maine Legislature's

apparent acceptance of the district court's reading of the plain

language of the MEPL.

Against all this evidence of a legislative determination

to advance the "equal pay for comparable work" objectives of the

MEPL, Acadia puts forward only one legislative history argument.

It asserts that the Legislature appears to have made a tradeoff in

1965 in which it eliminated the catch-all defense from the

affirmative defenses provision and replaced it with an intent

requirement in the liability provision by using the phrase

"discriminate . . . on the basis of sex."

Notably, Acadia presented this argument for the first

time at oral argument, and we therefore are entitled to ignore it

as waived.29 See United States v. Leoner-Aguirre, 939 F.3d 310,

Even though Acadia only raised this point briefly at oral 29

argument, the dissent eagerly embraces this tradeoff argument and elaborates upon it. In doing so, the dissent, without citation to any authority, and without any attempt to offer a rationale, contends that the ordinary principles of appellate waiver should not bear their usual weight in this case because we are predicting how the Law Court would construe the MEPL. Why does that context matter? The dissent never tells us. We are given no coherent reason to diverge from the ordinary application of our waiver jurisprudence. See United States v. Zannino, 895 F.2d 1, 17 (1st - 47 - 319 (1st Cir. 2019). Nevertheless, for the sake of completeness,

we will address it. Acadia's theory regarding the Maine

Legislature's motive is pure speculation. Acadia identifies not

a scintilla of legislative history or commentary to support its

argument that the Legislature in 1965, concerned about language

changes to the MEPL that strengthened its equal pay objectives,

decided to compensate for that strengthening by introducing an

intentional discrimination requirement that would simultaneously

circumscribe the law's protective purpose. Acadia cannot use such

speculation to create a statutory ambiguity that is simply not

there. As the Supreme Court has said, "[l]egislative history

. . . is meant to clear up ambiguity, not create it." Milner v.

Dep't of Navy, 562 U.S. 562, 574 (2011).

In sum, all reliable indicia of legislative history show

that the Maine Legislature, by means of the MEPL, sought to afford

protections greater than those offered by the FEPA.

Cir. 1990) (making clear that waiver exists to stop attorneys from "leaving the court to do counsel's work, create the ossature for the argument," or "put flesh on [the] bones" of weakly made points). Furthermore, it is manifestly unfair that Mundell has not had an opportunity to respond to the dissent's hypothesized arguments largely benefitting Acadia. See Day v. McDonough, 547 U.S. 198, 210, (2006) ("Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions."); Tandon v. Newsom, 992 F.3d 916, 928 (9th Cir.), disapproved on other grounds, 141 S. Ct. 1294 (2021) (noting that because "plaintiffs have not made [the dissent's] argument, and the State has had no reason or opportunity to respond to them, we decline to express an opinion on them now, let alone rely on them to grant [the requested relief]"). - 48 - 4. Policy Implications

Finally, Acadia emphasizes two policy concerns that it

contends arise from the district court's plain text reading of the

MEPL. Acadia claims the provision would (1) diminish Maine's

ability to attract and retain a skilled and diverse workforce and

(2) impose a significant burden on employers by requiring them to

track compensation differentials among their employees.

Acadia's policy arguments are beside the point. The

Supreme Court has stated that "[w]hen the express terms of a

statute give us one answer and extratextual considerations suggest

another, it's no contest." Bostock v. Clayton Cnty., 140 S. Ct.

1731, 1737 (2020); see also Whitney v. Wal-Mart Stores, Inc., 895

A.2d 309, 315 (Me. 2006) (reasoning that policy arguments cannot

override the law as written because "legislative policy arguments

are more appropriately left to the executive and the Legislature

to resolve").

In any event, we agree with the district court that

reading the MEPL to lack an intent requirement does not lead to

absurd policy results. As to flexibility in hiring, the MEPL does

not close the door for an employer to establish legitimate pay

disparities between men and women. There are preliminary showings

that must be made before a claimant can invoke the protective

purpose of the MEPL. The MEPL only applies where employees perform

"comparable work on jobs that have comparable requirements

- 49 - relating to skill, effort[,] and responsibility." See Me. Stat.

tit. 26, § 628. And even then, the statute creates three

affirmative defenses for pay differentials. See id.

As for asking employers to track pay differentials, we

acknowledge that the plain reading of the MEPL may require

employers to monitor how employees of different sexes are paid for

comparable work and to articulate one of the authorized reasons

provided by the statute for any disparity. These are hardly absurd

requirements. Employers typically are in a better position than

employees to monitor how employees doing comparable work are being

paid. This case illustrates that very point. Mundell worked for

Acadia for more than two years before she learned that she was

being paid less than her male colleagues.

C. The MEPL & Treble Damages

The parties also dispute whether Mundell is entitled to

treble damages for the unpaid wages that accrued while she was

paid less than her male colleagues in violation of the MEPL.

Section 626-A of title 26 sets out the penalties for violations of

the MEPL and certain other enumerated provisions of Maine's wage

laws. Although the provision applies by its terms to MEPL claims,

Acadia argues that it does not provide for treble damages for such

claims.30 The disputed statutory language reads in full:

Notably, the MEPL does not have its own penalty provision, 30

precluding any argument that the MEPL might displace section 626- - 50 - Whoever violates any of the provisions of section 600-A, sections 621-A to 623 or section 626, 628, 628-A, 629 or 629-B is subject to a forfeiture of not less than $100 nor more than $500 for each violation.

Any employer is liable to the employee or employees for the amount of unpaid wages and health benefits. Upon a judgment being rendered in favor of any employee or employees, in any action brought to recover unpaid wages or health benefits under this subchapter, such judgment includes, in addition to the unpaid wages or health benefits adjudged to be due, a reasonable rate of interest, costs of suit including a reasonable attorney's fee, and an additional amount equal to twice the amount of unpaid wages as liquidated damages.

Me. Stat. tit. 26, § 626-A (emphases added). This text authorizes

two possible penalties: "forfeiture of not less than $100 nor more

than $500 for each violation" and treble damages for any "unpaid

wages or health benefits adjudged to be due."

The treble damages penalty is outlined in the second

paragraph of section 626-A. The Law Court has made clear that the

treble damages paragraph applies to violations of any law listed

in section 626-A to the extent that the employer is liable for

"unpaid wages," because removing the possibility of treble damages

A's statutory penalties provision. See Me. Stat. tit. 26, § 628; see also Beckwith v. United Parcel Serv., Inc., 889 F.2d 344, 350– 51 (1st Cir. 1989) (considering, but ultimately rejecting, the argument that section 626-A penalties are displaced by more specific remedies listed under Me. Stat. tit. 26, § 629); Noll v. Flowers Foods, Inc., No. 1:15-cv-00493-LEW, 2021 WL 904859, at *5 (D. Me. Mar. 9, 2021) (same).

- 51 - "would strip" Maine's wage laws "of [their] effectiveness." Cooper

v. Springfield Terminal Ry. Co., 635 A.2d 952, 955 (Me. 1993).

The Law Court has further clarified that the term "unpaid wages"

includes instances in which an employee has not been "paid in full"

-- as well as instances in which an employee has been denied pay

entirely. In re Wage Payment Litig., 759 A.2d 217, 223-24 (Me.

2000).

Therefore, if a law is listed in section 626-A -- as is

the MEPL -- and a violation of that law results in unpaid wages,

the treble damages remedy is available. The MEPL targets a

particular type of wage violation, and the damages from a violation

necessarily include compensation for unpaid wages. We thus think

it obvious that litigants who prove a violation of the MEPL are

entitled to the remedies provided in the second paragraph of

section 626-A. See Beckwith v. United Parcel Serv., 889 F.2d 344,

350–51 (1st Cir. 1989) (suggesting that "an employer who violates

the equal pay requirements in [the MEPL] could be required to pay

the affected employees liquidated damages and attorney's fees as

provided by § 626–A").

Acadia raises several unpersuasive counterarguments to

this construction of section 626-A. First, Acadia maintains that

a MEPL violation results in damages, not unpaid wages, because it

is a statute focused on intentional discrimination rather than on

wage disparity. But we have already explained that the MEPL is

- 52 - not focused on intentional discrimination; rather, it seeks to

remedy pay disparities between men and women for comparable work.

Second, Acadia argues that an employee cannot pursue a

claim for failure to pay wages in lieu of or in addition to pursuing

a claim for discrimination. But courts have long established that

a party can suffer employment discrimination because of a wage

disparity and bring two claims: one for damages under a

discrimination statute and another to recover unlawfully withheld

wages under a wage statute. See, e.g., Rodriguez v. Smithkline

Beecham, 224 F.3d 1, 5-9 (1st Cir. 2000) (considering both a Title

VII wage discrimination claim for damages and a FEPA claim for

unpaid wages brought by the same employee).

Third, Acadia argues that Mundell does not have a claim

for unpaid wages because Acadia paid Mundell "what it had agreed

to pay her throughout her tenure." This argument fails because it

is inconceivable that an agreement by an employer to pay a wage

that is contrary to Maine law could override the requirements of

that law.

Fourth, Acadia asserts that the MEPL is primarily about

voluntary compliance because the Maine Department of Labor, at the

instruction of the Legislature, crafted regulations to bring about

greater voluntary compliance with the MEPL. But that legislative

act did not purport to replace the option of enforcing the MEPL

through a civil action; rather, as we noted in our review of the

- 53 - legislative history, the Legislature simply sought to improve

compliance with the MEPL.

Finally, Acadia contends that it would be "absurd" to

allow an employee to recover treble damages because such a large

award "would be financially devasting for the employer and provide

a windfall to the employee." But courts have repeatedly emphasized

that Maine wage laws are "remedial" and have a "broadly protective

purpose," and thus have rejected claims that treble damages for

violations of them are punitive. Giguere v. Port Res. Inc., 927

F.3d 43, 51 (1st Cir. 2019) (quoting Bisbing v. Me. Med. Ctr., 820

A.2d 582, 584-85 (Me. 2003)). If treble damages for violations of

Maine's wage laws serve the law's "broadly protective purpose," it

is difficult to understand why treble damages for violations of

Maine's equal pay provision would be absurd.

Thus, we, like the district court, conclude that

section 626-A entitles Mundell to "unpaid wages" for the time that

she was unlawfully underpaid by Acadia, plus "a reasonable rate of

interest, costs of suit including a reasonable attorney's fee, and

an additional amount equal to twice the amount of unpaid wages as

liquidated damages." Me. Stat. tit. 26, § 626-A.

III.

For the foregoing reasons, we affirm the district

court's grant of Mundell's partial motion for summary judgment

against Acadia under the liability provision of the MEPL, affirm - 54 - the damages award in the amount of $180,955.90, and deny Acadia's

motion to certify questions about the MEPL and title 26, § 626-A

to the Law Court.

So ordered.

- Dissenting Opinion Follows -

- 55 - BARRON, Chief Judge, dissenting. Maine's courts presume

that the state's statutes use the same words to mean the same

thing. The majority nonetheless holds that the Maine Equal Pay

Law ("MEPL"), Me. Stat. tit. 26, § 628, is the unusual Maine

statute that uses the same words to mean different things -- and

in successive sentences, no less.31 As a result, the majority

decides for itself that the MEPL -- which no Maine court has yet

construed -- establishes a far more sweeping prohibition than

either its federal counterpart, the Federal Equal Pay Act ("FEPA"),

29 U.S.C. § 206(d), or most pay-equity statutes in the country.

See Pay Equity Project, Fifty-State Pay Equity Law Summary (Nov.

10, 2021), https://perma.cc/D979-DG2C.

Maine is, of course, free to enact a pay-equity measure

as sweeping as the majority holds that Maine has. Maine is even

free to do so by using the same words to mean irreconcilable

things. But before we may decide that the state has done so, we

must be confident that its highest court would agree with that

decision. And, in my view, neither the text of the MEPL nor any

other interpretive sources can give us that confidence. I thus

would certify to the Maine Law Court the question about how to

31After argument in this case, the Maine legislature amended the MEPL to add "race" as a protected category alongside "sex." Because that version of the statute was not in force at the time of the conduct at issue in this case, we construe here the text of the prior version of the statute. - 56 - construe the MEPL that is before us in this appeal, as that court,

unlike ours, need not guess about the construction of the MEPL

that it would adopt.32

A.

The interpretive question at issue here concerns whether

the MEPL makes an employer liable merely for paying differential

wages to employees of different sexes for comparable work or only

for paying such differential wages when the employer is also shown

in doing so to have engaged in intentional discrimination on the

basis of sex. The difficulty in answering that question arises

because, in successive sentences, the MEPL repeats in nearly

identical fashion words that refer to an employer's decision to

discriminate on the basis of sex. Specifically, the MEPL's first

sentence provides that an employer may not "discriminate . . . on

the basis of sex by paying wages to any employee . . . at a rate

less than the rate at which the employer pays any employee of the

opposite sex for comparable work," Me. Stat. tit. 26, § 628

(emphasis added), while the MEPL's second sentence provides that

32 Because I would certify this question to the Maine Law Court, I would not reach the second interpretive question at issue in this appeal, which concerns the availability of treble damages. If the Law Court were to disagree with the reading of the MEPL that the majority adopts, I see no reason why we would not simply remand the case to the District Court without reaching the damages question. - 57 - such differential wages paid "pursuant to established seniority

systems or merit increase systems or difference in the shift or

time of the day worked that do not discriminate on the basis of

sex are not within the prohibitions in this section." Id.

(emphasis added).

As the majority sees things, it is perfectly clear that

the MEPL does not require an employer to have engaged in

intentional sex-based discrimination to be liable under the MEPL.

According to the majority, the measure clearly makes an employer

liable -- barring any exception that the MEPL's second sentence

sets forth -- merely for having paid employees of different sexes

differential wages for comparable work.

The majority comes to this conclusion based solely on

the MEPL's text, because the majority concludes that the MEPL's

first sentence clearly defines an employer's decision to pay

differential wages to employees of different sexes for comparable

work as a decision to "discriminate . . . on the basis of sex."

The majority recognizes that this construction works, however,

only if the phrase "discriminate on the basis of sex" in the MEPL's

second sentence does not mean what "discriminate . . . on the basis

of sex" in that statute's first sentence does. The majority knows

that the MEPL's second sentence would not parse if the words

"discriminate on the basis of sex" were construed to mean only

"paying wages to any employee . . . at a rate less than the rate

- 58 - at which the employer pays any employee of the opposite sex for

comparable work." That sentence parses only if those words are

read to be referring to the employer's intentional discrimination

based on sex, as the sentence then provides, quite coherently,

that an employer may make certain kinds of differential payments

to employees of different sexes only when the differential is not

the result of the employer's intentional sex-based discrimination.

The majority necessarily is concluding, therefore, that

it is clear from the MEPL's text alone that the MEPL is using all-

but-identical phrases to mean contradictory things across its two

sentences. So, the majority must explain how we can be confident

that the Maine Law Court would agree when Maine courts ordinarily

read Maine statutes to use the same words to mean the same things.

See, e.g., Att'y Gen. v. Sanford, 225 A.3d 1026, 1030 (Me. 2020)

(reasoning that "[t]he [Maine] Legislature's use of nearly

identical language" in two related statutes "demonstrate[d] [the

Legislature's] intent" to establish "equal" standards (emphasis in

original) (citing Great. N. Nekoosa Corp. v. State Tax Assessor,

675 A.2d 963, 967-68 (Me. 1996) (Clifford, J., dissenting)

("Identical words in different parts of the same statute are

presumed to have the same meaning" (emphasis in original))).

The majority's explanation relies in part on the fact

that the MEPL's first sentence uses the word "by" to link the

phrase "discriminate . . . on the basis of sex" to the phrase

- 59 - "paying of . . . ." As a matter of ordinary speech, the majority

reasons, that formulation plainly defines "discriminat[ion] . . .

on the basis of sex" to be the mere paying of the differential

wages.

The District Court offered an analogy to support the

same conclusion. It asserted that a referee's rule that "players

may not engage in unsportsmanlike conduct by celebrating a

touchdown" plainly makes it "beside the point to argue about

whether a particular celebration was unsportsmanlike" because "the

referee removed all ambiguity by defining the conduct that is

deemed unsportsmanlike." The District Court then explained that

the first sentence of the MEPL is no different, as the word "by"

there similarly makes clear that it is "beside the point" whether

the employer intended to "discriminate . . . on the basis of sex"

in paying differential wages.

It is not necessarily the case, however, that when the

word "by" follows words that describe a certain type of conduct,

the word "by" signals that the next set of words defines that

conduct. A law that bans the "theft of electronic funds by

unauthorized computer access," for example, plainly does not

define the "unauthorized computer access" itself to be prohibited

"theft," as no one could doubt that the "access" still must result

in "theft" to be barred. Indeed, it is not even clear to me that

the District Court's posited ban on "unsportsmanlike conduct by

- 60 - celebrating after a touchdown" must be read to forbid literally

all touchdown celebrations. I do not think it self-evident that

it would be "unsportsmanlike" for players on one high school

football team to celebrate an opposing player's touchdown if they

knew that the player who scored it had overcome great adversity.

Simply put, when a statute uses the word "by" as the

MEPL's first sentence does, that word may signal no more than that

the words that follow it set forth a specific means of carrying

out the conduct that is barred, so that those trailing words limit

rather than define the kind of conduct that is barred. And, when

that is so, the statutory text alone will not suffice to make clear

the nature of the prohibited conduct -- whether "theft,"

"unsportsmanlike conduct," or an employer's decision to

"discriminate . . . on the basis of sex" -- unless the words that

name that conduct in and of themselves make the nature of that

conduct clear.

As a result, it seems to me that the text of the MEPL's

first sentence would clearly compel the majority's reading only if

the word "by" were clearly signaling that a decision to pay

differential wages to employees of different sexes for comparable

work is in and of itself a decision to "discriminate . . . on the

basis of sex" rather than merely a specific means of carrying out

the only kind of conduct that the MEPL prohibits: a decision by an

employer to intentionally discriminate on that basis. After all,

- 61 - the majority appears to agree that the words "discriminate . . .

on the basis of sex" do not themselves make clear that the MEPL's

prohibition encompasses decisions by employers that do not

intentionally discriminate on the basis of sex, as the majority

does not suggest that those words may never be read to be referring

only to decisions by employers to engage in such discrimination

intentionally. In fact, the majority reads those very same words

in the MEPL's second sentence to be referring solely to

discriminatory conduct based on sex that is of that intentional

kind.

The majority does attempt to shore up its reading of the

MEPL by pointing out -- rightly -- both that we must construe the

statute's first sentence in the context of the statute as a whole

and that the Maine Law Court is not in the habit of construing the

state's statutes to render portions of them superfluous. The

majority then asserts that, as a result, the MEPL's first sentence

must be read to be defining an employer's decision to pay the

differential wages as itself a decision to "discriminate . . . on

the basis of sex," because otherwise the statute's second sentence,

in exempting an employer's decision to pay the differential wages

in certain circumstances, would be rendered superfluous.

The majority's own construction of the MEPL, however,

appears to be in some tension with the anti-superfluity canon that

the majority invokes. If the majority were right that the MEPL's

- 62 - first sentence prohibits an employer's decision to pay the

differential wages and defines that decision as "discriminat[ion]

. . . on the basis of sex," then the first sentence could have cut

right to the chase and simply read, "An employer may not pay wages

to any employee . . . at a rate less than the rate at which the

employer pays an employee of the opposite sex for comparable

work[.]" In fact, though, the first sentence includes -- seemingly

unnecessarily, under the majority's reading -- the words

The majority does assert that, under its construction of

the MEPL, the phrase "discriminate . . . on the basis of sex" is

not, in fact, superfluous. On the majority's view, that phrase

still serves the useful function of clarifying that the conduct

that follows the word "by" is itself a type of "discriminat[ion]

. . . on the basis of sex."

But if the anti-superfluity canon tolerates words that

are not strictly necessary so long as they are clarifying, then I

do not see why we must conclude that that canon plainly rules out

the reading of the MEPL that the majority rejects. It would not

be unprecedented for a pay-equity statute to clarify its scope by

setting forth a few safe harbors for employers that were not

strictly necessary to announce. Indeed, the federal counterpart

to the MEPL, the FEPA, lists specific examples of non-sex-based

pay differentials that are allowed even though that statute also

- 63 - contains a catch-all exemption for all pay differentials that are

based on a factor other than sex. See 29 U.S.C. § 206(d)

(prohibiting the payment of differential wages "on the basis of

sex . . . except where such payment is made pursuant to (i) a

seniority system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of production; or (iv) a

differential based on any factor other than sex" (emphasis added)).

Here, the MEPL's two-sentence structure and use of the

passive construction "are not within this prohibition," Me. Stat.

tit. 26, § 628, plausibly invite one to read the MEPL's second

sentence to be doing something similar. On this understanding,

the MEPL's second sentence expressly names certain common types of

conduct that are exempt from the first sentence's ban on

discrimination on the basis of sex when those types of conduct do

not result from intentional discrimination on that basis, even

though the first sentence already establishes that the ban does

not cover any conduct that is not the result of such intentional

For all these reasons, then, I conclude that the MEPL's

text at most reveals that we have a classic contest between

linguistic canons. In one corner is the same words-same meaning

canon, which suggests that the MEPL requires proof of the

employer's intentional discrimination on the basis of sex. In the

- 64 - other corner is the anti-superfluity canon, which suggests that no

such proof is required.

The majority concludes, based on the MEPL's text alone,

that the Maine Law Court would decide that the anti-superfluity

canon prevails here. But I cannot see how we can be so sure, if

the text is our only guide, when the Maine Law Court is sensibly

sensitive to context in applying that canon, see Cent. Me. Power

Co. v. Devereux Marine, Inc., 68 A.3d 1262, 1266 (Me. 2013) ("'All

words in a statute are to be given meaning,' and no words are to

be treated as surplusage 'if they can be reasonably construed.'"

(citation omitted and emphasis added)), and that court has recently

relied on the same words-same-meaning canon to interpret a Maine

law, see Sanford, 225 A.3d at 1030 (reasoning that "[t]he [Maine]

Legislature's use of nearly identical language" in two related

statutes "demonstrate[d] [the Legislature's] intent" to establish

"equal" standards (emphasis in original) (citing Great. N. Nekoosa

Corp., 675 A.2d at 967-68 (Clifford, J., dissenting) ("Identical

words in different parts of the same statute are presumed to have

the same meaning" (emphasis in original))). In my view, therefore,

the statutory text alone fails to show that the interpretive answer

to the question at hand is as clear as the majority contends.

B.

The majority does suggest that even if the MEPL's text

is not, in and of itself, decisive, an interpretive tiebreaker on

- 65 - which Maine courts generally rely is. See O'Connor v. Oakhurst

Dairy, 851 F.3d 69, 79–81 (1st Cir. 2017) (not certifying question

to Maine Law Court despite ambiguous text because Law Court

precedent supplied "default rule of construction" that resolved

ambiguity). The interpretive tie-breaker that the majority has in

mind is set forth in Gordon v. Maine Central Railroad, 657 A.2d

785, 786 (Me. 1995), in which the Maine Law Court explained that

"[w]hen . . . a term is not defined in either the relevant

statutory provisions or in prior decisions of [the Maine Law

Court], Maine Courts may look to analogous federal statutes,

regulations, and case law for guidance." This extra-textual look,

however, only adds to my reasons for thinking that it would be

useful to ask the Maine Law Court for its view.

The majority notes that the MEPL's federal counterpart,

the FEPA, begins much like the MEPL, as the FEPA states: "No

employer . . . shall discriminate . . . between employees on the

basis of sex by paying wages to employees . . . at a rate less

than the rate at which he pays wages to employees of the opposite

sex . . . for equal work," 29 U.S.C. § 206(d)(1). The majority

then points out that the Supreme Court of the United States has

construed that language in the FEPA not to require proof of

intentional discrimination on the basis of sex. See Corning Glass

Works v. Brennan, 417 U.S. 188, 195–96 (1974). Thus, the majority

reasons, we can be confident that, to ensure that parallel state

- 66 - and federal measures are construed in parallel fashion, the Maine

Law would construe the MEPL's first sentence the same way that the

similar language in the FEPA has been construed.

The problem with this reasoning is that the Maine Law

Court looks to federal law to interpret its own statutes only "when

the federal and state laws are substantially identical." Scamman

v. Shaw's Supermarkets, Inc., 157 A.3d 223, 233 (Me. 2017)

(emphasis added) (quoting Percy v. Allen, 449 A.2d 337, 342 (Me.

1982)). I cannot see, however, the basis for our being confident

that the Maine Law Court would conclude that the MEPL and the FEPA

are substantially identical.

The FEPA, like the MEPL, does expressly identify

practices that the FEPA's prohibition does not cover. But the

FEPA identifies those practices in the same sentence that sets

forth the prohibition itself, and the FEPA then sets off the exempt

practices through the word "except." 29 U.S.C. § 206(d)(1). By

contrast, the MEPL identifies the practices that its prohibition

expressly exempts in a separate sentence from the one that

establishes the prohibition itself, and the MEPL does so by using

the phrase "discriminate on the basis of sex" in the second

sentence after using the phrase "discriminate . . . on the basis

of sex" in the first sentence.

As a result, the text of the FEPA simply does not present

the interpretive conundrum that the MEPL does about how the phrase

- 67 - "discriminate on the basis of sex" in the second sentence stands

in relation to the all-but-identical phrase "discriminate . . . on

the basis of sex" in the first sentence. For that reason, I do

not see how we can be sure that the Maine Law Court would look to

Corning Glass Works to make sense of that conundrum.

The majority does interpret Scamman to mean that Maine

courts "otherwise construe[] Maine discrimination laws to give

effect to any [textual] differences" between those laws and their

federal counterparts. And, on that basis, the majority contends

that the limited list of exempt practices in the MEPL in and of

itself shows that statute is meant to prohibit more conduct than

the FEPA, given that the FEPA has a catch-all (and thus much

broader) exemption.

But in Scamman itself the Maine Law Court determined

that the Maine Human Rights Act ("MHRA"), 4 Me. Stat. § 57, and

its counterpart federal statute, the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. §§ 621–34, were "not

substantially identical" -- and therefore that "neither the text

of the [federal statute] nor the federal cases applying that text

provide[d] helpful guidance for interpreting [the MHRA]."

Scamman, 157 A.3d at 233. And the Scamman court did so precisely

because, "[u]nlike the ADEA, the MHRA does not contain" a catch-

all "reasonable factor other than age" affirmative defense. Id.

at 233, 230 (emphasis added).

- 68 - Here, precisely the same "substantive difference" is

present, id., and, moreover, the relevant federal statute does not

repeat the critical "discriminate" phrase that the MEPL does. The

majority thus needs to explain, insofar as it is relying on

Scamman, why we should not "give effect" to these plain textual

differences between the MEPL and the FEPA, as they are differences

that would appear to establish that, like the measures at issue in

Scamman, the FEPA and the MEPL are not "'substantially identical'"

and so should not be construed as if they were. Scamman, 157 A.3d

at 233 (quoting Percy, 449 A.2d at 342).

There is also a very practical reason for us to be wary

of predicting that the Maine Law Court would construe the MEPL's

first sentence as the FEPA's similar language has been construed.

As it turns out, the scope of the MEPL and the FEPA would in

practical effect be quite similar if the intent-based reading of

the MEPL were embraced.

If the MEPL were so construed, then there would be good

reason to construe that statute to incorporate the burden-shifting

framework for proving intentional discrimination that is common to

civil rights measures. Cf. Scamman, 157 A.3d at 233, 228 (holding

that "the business necessity" "burden-shifting scheme" that

federal courts apply to Title VII disparate impact claims "applies

to disparate impact age discrimination claims brought pursuant to

the [Maine Human Rights Act ("MHRA")]."). And, in that event, an

- 69 - employer could be liable under the MEPL for the mere conduct of

paying differential wages to employees of different sexes for

comparable work absent the employer showing that the differential

was based on "some legitimate, nondiscriminatory reason" that was

not a pretext for discrimination based on sex, McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); see Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) ("[A] plaintiff's

prima facie case, combined with sufficient evidence to find that

the employer's asserted justification is false, may permit the

trier of fact to conclude that the employer unlawfully

discriminated."), much as an employer is liable under the FEPA

merely for paying such differential wages absent the employer

showing that the differential was based on "any other factor other

than sex," 29 U.S.C. § 206(d)(1).

If the MEPL were construed not to require proof of the

employer's intentional discrimination, however, then,

paradoxically, the daylight between the MEPL and the FEPA would be

quite substantial. So read, the MEPL would bar an employer from

basing a pay differential between employees of different sexes on,

say, the greater educational attainment or experience of the

higher-paid employee, see Merillat v. Metal Spinners, Inc., 470

F.3d 685, 697-98 (7th Cir. 2006), the competitive nature of the

job market at the time of the higher-paid employee's recruitment,

see Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684 (8th Cir.

- 70 - 2001), or the need to match the higher-paid employee's previous

salary, see Engelmann v. Nat'l Broad. Co., No. 94-CIV-5616, 1996

WL 76107, at *10 (S.D.N.Y. Feb. 22, 1996). Yet, the FEPA has been

construed to permit each of those common compensation practices.

As a result, I am not at all sure that the Maine Law

Court would conclude that the interpretive tie-breaker that the

majority invokes favors the majority's reading of the MEPL. By

interpreting the MEPL's language to parallel the FEPA's, the Maine

Law Court would not be aligning the two measures, in practical

effect. Rather, it would be driving them farther apart than they

otherwise would be.

The majority does point out that the MEPL refers to

"comparable" work while the FEPA refers only to "equal work," and

the majority suggests that this textual difference clearly shows

that the MEPL is intended to be stricter than the FEPA in barring

differential pay. The fact that the MEPL is stricter than the

FEPA in that one respect, however, does not necessarily show to me

that the MEPL is intended to be stricter along the dimension that

matters for present purposes. Thus, I cannot see how we can glean

from this textual difference any confidence that the Maine Law

Court would apply the interpretive tie-breaker on which the

majority relies, especially when the tie-breaker's application

here would make the scope of the two measures more rather than

less divergent.

- 71 - C.

The majority also suggests that there is good reason to

have confidence that the Maine Law Court would construe the MEPL

not to require proof of an employer's intentional discrimination

based on sex because of the way that other states have chosen to

ensure pay equity. But here, too, I cannot agree.

The majority rightly identifies a minority of eleven

state equal-pay laws that both have no catch-all affirmative

defense to liability and have not been authoritatively construed

to require the plaintiff to make a showing of intentional

discrimination on the basis of sex. But as the majority must

acknowledge, ten of those statutes are worded very differently

from the MEPL, including by virtue of the fact that they do not

repeat the critical "discriminate" phrase in successive sentences

as the MEPL does.33

True, three state equal-pay statutes -- Idaho's, South

Dakota's, and Kentucky's -- share the textual features that combine

to create the ambiguity in the MEPL that concerns me: the use of

the words "discriminate . . . on the basis of sex by paying

[unequal] wages" in the first sentence; the use of "discriminate

on the basis of sex" in the second sentence; and the lack of an

See Colo. Rev. Stat. § 8-5-102; Mass. Gen. Laws ch. 149, § 33

105A; Mont. Code Ann. § 39-3-104; N.M. Stat. Ann. § 28-23-3; Or. Rev. Stat. § 652.220; Tex. Labor Code Ann. § 21.102; Utah Code Ann. § 34A-5-106; Wis. Stat. § 111.36. - 72 - expansive catch-all exemption akin to the FEPA's. See Idaho Code

§ 44-1702; S.D. Codified Laws §§ 60-12-15 to -16; Ky. Rev. Stat.

Ann. § 337.423. But, as best I can tell, only these three states

have pay-equity measures so worded, and there is no precedent that

construes any of them that is both from the highest court in the

relevant state and resolves the textual conundrum that each, like

the MEPL, presents in the way that the majority resolves it.34 So,

we literally have no indication that the highest court of any state

would construe a measure that is worded like the MEPL in the way

that the majority contends that it is clear that the Maine Law

Court would.

In addition, as the majority acknowledges, it would not

be unheard-of for a state to enact an equal pay statute that

requires a showing of intentional discrimination on the basis of

sex. See Okla. Stat. tit. 40, § 198.1 ("It shall be unlawful for

any employer within the State of Oklahoma to willfully pay wages

to women employees at a rate less than the rate at which he pays

34True, in Perkins v. U.S. Transformer W., 974 P.2d 73 (Idaho 1999), overruled on other grounds by Poole v. Davis, 288 P.3d 821, 825 n.1 (Idaho 2012), the Idaho Supreme Court noted that a jury found an employer liable under Idaho's equal-pay statute for paying a female employee less than her male counterparts but did not find the employer liable for willful discrimination under Idaho's analogue to Title VII. Id. at 75. The legal issue before the court, however, concerned only attorney's fees. We therefore lack any insight into the basis for the divergent jury verdicts or whether the employer made any argument akin to the one that the employer in this case now makes. - 73 - any employee of the opposite sex for comparable work on jobs which

have comparable requirements relating to skill, effort and

responsibility[.]"). Indeed, there is at least one other state

equal-pay measure that uses words that invite a requirement to

prove such intent that has not yet been authoritatively construed

to dispense with that requirement. See Wash. Rev. Code § 49.58.020

("Any employer . . . who discriminates in any way in providing

compensation based on gender between similarly employed employees

. . . is guilty of a misdemeanor.").35

The majority also points out that state and federal

courts in Vermont, California, Minnesota, Connecticut, Washington,

New Jersey, Arkansas, and Tennessee have interpreted state equal-

pay laws "to not require proof of an employer's discriminatory

intent to establish liability." But each of those laws is also

worded very differently from the MEPL. In fact, like the FEPA,

none repeats the critical "discriminate" phrase in successive

sentences, and each (like the FEPA) contains a catch-all provision

that exempts pay differentials that did not result from intentional

discrimination on the basis of sex. See Vt. Stat. Ann. tit. 21,

§ 495; Cal. Lab. Code § 1197.5; Minn. Stat. § 181.67; Conn. Gen.

Although the Supreme Court of Washington applied cases 35

interpreting the FEPA in interpreting that state's equal pay statute in Adams v. University of Washington, 722 P.2d 74, 77 (Wash. 1986), that court did so only because both parties urged the court to do so, id. - 74 - Stat. § 31-75; Wash. Rev. Code § 49.58.020; N.J. Stat. Ann. §

34:11-56.2; Ark. Code Ann. § 11-4-610; Tenn. Code Ann. § 50-2-202.

For similar reasons, I do not find much insight into how

the Maine Law Court would construe the MEPL in the Massachusetts

Supreme Judicial Court's ("SJC") construction of that state's

equal-pay measure in Jancey v. School Committee of Everett, 658

N.E.2d 162 (Mass. 1995). For, while the majority contends the

SJC's decision there supports the conclusion that the Maine Law

Court would read the MEPL not to require proof of an employer's

intentional discrimination on the basis of sex, the Massachusetts

measure reads: "No employer shall discriminate in any way on the

basis of gender in the payment of wages, or pay any person in its

employ a salary or wage rate less than the rates paid to its

employees of a different gender for comparable work." Mass. Gen.

Laws ch. 149, § 105A (emphasis added). Thus, through the word

"or", that measure, unlike the MEPL, plainly announces two distinct

prohibitions, one on "discriminat[ing] . . . on the basis of gender

in the payment of wages" and another on the mere conduct of paying

unequal wages.36

36 Several other states also have -- or had -- equal-pay measures that establish two distinct prohibitions, and one of those measures goes so far as to list the two prohibitions as separate subsections of the statute. See, e.g., Or. Rev. Stat. § 652.220 ("It is an unlawful employment practice . . . for an employer to: (a) [i]n any manner discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character . . .; (b) [p]ay wages or - 75 - In sum, I fail to see how a survey of state equal-pay

measures compels the conclusion that the Maine Law Court would

decide that Maine intended through the MEPL to enact an equal-pay

measure as sweeping as the majority concludes that Maine has.

Indeed, as even the majority must admit, only a minority of states

have been held to have enacted a pay-equity measure that is as

broad as that, and none of those measures shares the MEPL's unusual

textual features.

D.

There remains to be addressed only the MEPL's statutory

history. See Scamman, 157 A.3d at 229 (noting that courts should

only "look beyond" text to legislative history if the "plain

language . . . is ambiguous"). The majority finds compelling

support in that history for its reading of the MEPL. I do not.

The majority notes both that the MEPL did not use the

word "discriminate" when the state first passed that measure in

compensation to any employee at a rate greater than that at which the employer pays wages or other compensation to employees of a protected class for work of comparable character."); W. Va. Code § 21-5B-3 ("No employer shall: (a) In any manner discriminate between the sexes in the payment of wages for [comparable] work . . .; (b) pay wages to any employee at a rate less than that at which he pays wages to his employees of the opposite sex for [comparable] work."); Ark. Code Ann. § 11-4-610 (using "or" in similar fashion as Massachusetts statute); Elizabeth J. Wyman, The Unenforced Promise of Equal Pay Acts: A National Problem and Possible Solution from Maine, 55 Me. L. Rev. 23, 39 n.106, 45 n.143 (2003) (listing former versions of Rhode Island and Washington equal-pay measures, which used "or" in a fashion similar to the Massachusetts statute). - 76 - 1949 and that the MEPL at that time included a broad catch-all

defense for any "other reasonable differentiation except

difference in sex." Act of Aug. 6, 1949, ch. 262, 1949 Me. Laws

207. The majority thus finds it significant that just two years

after the passage of the FEPA the MEPL was amended not only to add

"discriminate . . . on the basis of sex" in the first sentence but

also to remove the catch-all defense.

The timing of this change to the MEPL, according to the

majority, supports -- and perhaps even requires -- the conclusion

that Maine wanted to ensure that its equal-pay measure was at least

as broad as the federal government's. But this sequence of

events -- which, I note, pre-dates Corning Glass Works's intent-

less construction of the FEPA -- equally could show that the Maine

legislature chose to remove the catch-all defense from the statute

on the understanding that the phrase "discriminate . . . on the

basis of sex" required a showing that a pay disparity was based on

sex and so rendered a catch-all unnecessary. The majority's gloss

on the meaning of the sequence of events also fails to explain the

legislature's choice to add at the time of the amendment the words

"discriminate . . . on the basis of sex" to the first sentence of

the MEPL.

I recognize that the Maine legislature did retain the

specific mention of some pay differentials (e.g., a differential

based on seniority) that are permissible so long as they did not

- 77 - result from an employer's intentional sex-based discrimination.

But, as I have explained, there is nothing anomalous about a pay-

equity statute that sets forth some express safe harbors for

clarifying purposes, and the text of the MEPL plausibly

accommodates a reading in which the second sentence is doing just

that.37

I also recognize that Maine has amended the MEPL several

times after Corning Glass Works without altering the phrases that

are our concern. But it is notoriously hazardous to draw

inferences from what a legislature has not done. See Bostock v.

Clayton Cnty., 140 S. Ct. 1731, 1747 (2020) ("[S]peculation about

why a later Congress declined to adopt new legislation offers a

'particularly dangerous' basis on which to rest an interpretation

of an existing law a different and earlier Congress did adopt."

(quoting Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S.

633, 650 (1990))). And it is just as hazardous to do so here,

37The majority contends that the appellant waived this argument about an alternative way of understanding the legislative history by raising it for the first time at oral argument. But, even setting aside the fact that the line between raising issues and raising arguments for purposes of determining appellate waiver is not easily limned, see Yee v. City of Escondido, Cal., 503 U.S. 519, 533 (1992), I know of no precedent that requires us to take at face value one party's claim about legislative history just because the opposing side has failed expressly to point out that claim's logical limitations. And here I am relying on the supposedly waived argument merely to point out how speculative the appellee's own narrative about the legislative history necessarily is. - 78 - even if we were to account for the Maine legislature's quite recent

choice to amend the MEPL to add race as a protected category.

While that change occurred after the District Court's decision in

this very case, nothing in the text or legislative history of that

amendment indicates that Maine meant to be endorsing any specific

way of reading the untouched phrases.

There is one last point about the statutory history to

address. At oral argument, the appellee suggested that because

the Maine Human Rights Act ("MHRA"), Me. Stat. tit. 5,

§ 4572(1)(A), is also on the books, it makes little sense to

construe the MEPL to be intent-based. Why, the argument runs,

would Maine have wanted to enact the MEPL if that statute would

bar only conduct that is already prohibited by another statute?

Even if the MEPL were construed in the way that the

majority rejects, however, the MHRA would not render the MEPL

totally redundant, because the two statutes have different damages

schemes. Compare Me. Stat. tit. 26, § 626-A (providing that a

defendant found liable for violating the MEPL "is subject to a

forfeiture of not less than $100 nor more than $500 for each

violation," plus "unpaid wages . . . adjudged to be due, a

reasonable rate of interest, costs of suit including a reasonable

attorney's fee, and an additional amount equal to twice the amount

of unpaid wages as liquidated damages") with Me. Stat. tit. 5,

§§ 4613(2)(B) (providing that remedies for violations of the MHRA

- 79 - "may include, but are not limited to" a cease and desist order, an

order of reinstatement with or without back pay, civil damages up

to $100,000, and compensatory and punitive damages), 4614

(providing for the award of reasonable attorney's fees and costs

to the prevailing party in an MHRA action). And, in any event,

the redundancy would mirror the redundancy that exists in federal

law between the FEPA and Title VII.38 Moreover, because the MHRA

was enacted years after the enactment of the textual features of

the MEPL that are at issue in our case, the MHRA's existence hardly

suffices to prove that the MEPL was intended to be as encompassing

as the majority reads it to be.

Although the appellee is entitled to a federal forum for

the resolution of this dispute over the meaning of the MEPL, the

interpretive question that we must resolve is still one of Maine,

not general, law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). We thus must decide that question as Maine's own courts

would. Id. And, in doing so, we are supposed to be cognizant of

the hazards of guessing incorrectly about what the state's highest

court would do and sensitive to that court's special role in

38In fact, the legislative history of Title VII shows that Congress intentionally took steps to make Title VII more redundant with the FEPA, even by going so far as to incorporate the FEPA into Title VII by explicit reference. See Cnty. of Wash. v. Gunther, 452 U.S. 161, 190–94 (1981) (Rehnquist, J., dissenting) (discussing history of the Bennett Amendment to Title VII). - 80 - interpreting the laws of its own state. Otherwise, we will end up

paying lip-service to Erie while acting as if we are entitled to

the last word.

Against that Erie-inflected backdrop, I find it

significant that we confront an important Maine-law measure that

not a single Maine court has construed; that is worded in a

peculiar fashion deployed in the pay-equity laws of only three

other states, none of which yet has been authoritatively construed

in the relevant respect; and for which there is no decisive state-

law rule of construction that applies. In consequence, in trying

to decide for ourselves whether, to be liable under the MEPL, an

employer must be shown to have intentionally discriminated on the

basis of sex in paying differential wages, the risks are unusually

high that we will mistake our own powers of reason for those of

the court whose exercise of those powers is ultimately

determinative.

Nor would the consequences of our making that mistake be

trivial. By substituting our own guess for the Maine Law Court's

definitive answer, we reduce the chance for that court to have an

opportunity to offer its own resolution in a future case.39 In the

39Similarly, even if the Maine Law Court were to agree with the majority that no catch-all defense is implicit in the MEPL, that court still might conclude that other kinds of defenses are implicit in the statute. In Scamman, for example, the Maine Law Court declined to read a catch-all defense into the MHRA but did read a "business necessity" defense into it for age-discrimination - 81 - meantime, we also necessarily -- and, in my view,

needlessly -- create uncertainty for employers and employees in

Maine alike, because any construction of this statute that we

provide is inherently provisional while the Maine Law Court's word

is definitive once given.

Why, then, not get that court's last word now? True, by

asking for it, we would be adding to the burdens of an already

busy state court. But we would be doing so in a case that presents

a question of broad public import and to which -- at least in my

view -- the answer is hardly all but clear.

I thus do not think we would be shirking our interpretive

duties by certifying the question before us to the Maine Law Court.

I think we would be prudently ensuring that we would not be

overstepping them. In my view, then, in this case we should accept

the general invitation that Maine has extended to us to certify

difficult interpretive questions of Maine law to the Maine Law

Court to resolve, given that I cannot see how we can be confident

how the Maine Law Court would answer the specific question of Maine

claims even while acknowledging that the text itself did not provide for one. 157 A.3d at 230. The majority's reading of the MEPL, then, could lead to summary judgment being granted against employers when the Maine Law Court might very well conclude that there are other defenses yet available to employers even if no proof of an employer's intentional discrimination on the basis of sex is required. - 82 - law that we confront here, see Me. Rev. Stat. tit. 4, § 57; Me. R.

App. P. 25(a). Accordingly, I respectfully dissent.

- 83 -