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Questions & Answers (Accurate as of July 2, 2012)

Marriage and Civil Unions

In an historic decision, the Massachusetts Supreme Judicial Court ruled on November 18, 2003, that gay and lesbian couples have the right to civil marriage in Massachusetts. The ruling in GLAD’s case, Goodridge v. Department of Public Health, was the first of its kind in this country by a state high court.  This was a legal and cultural milestone. At long last, gay and lesbian families and their children are finally equal families in the Commonwealth.

Massachusetts does not have a residency requirement for marriage, but until July 31, 2008 an old law dating back to 1913 was used to deny marriage licenses to same-sex couples from other states unless they intended to reside in Massachusetts. On July 31, 2008 Governor Patrick signed into law a bill that repealed this so-called “1913 law,” and effective immediately on that date same-sex couples from anywhere in the country or world can legally marry in Massachusetts without having an intent to reside in Massachusetts.

Although this is great news, couples should be aware that whether the marriage will be respected in their home state or country is a complicated issue. In addition, because of the 1996 federal Defense of Marriage Act, the marriages of same-sex couples are not respected by the federal government and so same-sex couples are not allowed access to the 1,138 federal laws that pertain to marriage. GLAD has filed two federal lawsuits,Gill et al v. OPM et al and Pedersen et al v. OPM to challenge this discrimination (see www.glad.org/doma for detailed information).  It is anticipated that the United States Supreme Court will hear a DOMA Section 3 case during its 2012-2013 session and issue a decision about the constitutionality of DOMA Section 3 by July 2013.  Should the Supreme Court rule that DOMA Section 3 is unconstitutional, or should Congress repeal DOMA Section 3, some or all of the federal laws where marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected.

Also, should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce.

GLAD has prepared a number of publications dealing with marriage.  These publications are available both in printed form and on our website, www.glad.org  They include:

• How To Get Married In Massachusetts
• Marriage Tips and Traps
• Same-Sex Spousal Health Benefits In Massachusetts After Goodridge
• Taxes On Employment Benefits For Same-Sex Spouses
• Navigating Income Taxes For Married Same-Sex Couples
• Separation, Divorce and Marriage Equality
• Legal Issues for Non-Massachusetts Same-Sex Couples Who Married in Massachusetts

What other options are available to Massachusetts same-sex couples to obtain legal recognition of or protection for their relationships?

Marriage in Other States and Countries

Yes currently Connecticut, Vermont, New Hampshire, Iowa, New York, Maine, Washington State, Maryland, the District of Columbia and Canada allow same-sex couples to marry and have no residency requirement. There is information about getting married in Massachusetts, Vermont, Connecticut, New Hampshire, Maine, and Canada on our website www.lambdalegal.org).

Some people may be able to wed in Spain, the Netherlands, Belgium, Norway, South Africa, Sweden, Portugal, Iceland, Argentina, Denmark, or Mexico City, but some of these locales have requirements that make it difficult for non-citizens to marry.

Civil Unions and Domestic Partnerships

Same-sex couples can also enter into “civil unions” in Rhode Island, New Jersey, Illinois, Delaware and Hawaii, which will give them a legal status, but it is not yet clear what effect those civil unions are accorded in Massachusetts. The Supreme Judicial Court ruled in 2012 that civil unions will be respected as equivalent to marriage in Massachusetts. GLAD thinks the legal status of civil unions should be respected in Massachusetts, but that it will take time for that state of affairs to evolve. Same-sex couples can also enter into “domestic partnerships” in California, Oregon, Washington State and Nevada that offer essentially the same protections, benefits and obligations as civil marriage under state law.  The Massachusetts Supreme Judicial Court ruled in 2012 that these comprehensive domestic partnerships will be respected as equivalent to marriage in Massachusetts.

Other Legal Protections for Same-Sex Couples

Short of entering into a civil marriage, a civil union, a registered domestic partnership or some other sanctioned legal status, what steps can a couple take to safeguard their legal relationship in Massachusetts?

1. Relationship Agreement or Contract: In 1998, the Massachusetts Supreme Judicial Court ruled that written cohabitation agreements by unmarried parties regarding property and finances will be respected and honored according to ordinary rules of contract law.³⁵ This ruling provides greater incentive for couples to sort out their affairs in writing before a separation. Note that the rules governing cohabitation contracts between married people are based on what is “fair and reasonable,” a more generous standard which is not available to unmarried persons. And as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children.
2. Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled.³⁶  If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A person may also nominate his or her guardian or conservator—a longer term appointment which takes priority over the attorney-in-fact—in the same document. An individual’s choice can only be rejected by a court for good cause or disqualification. The mere fact that a family member is not appointed is not good cause.
3. Health Care Proxy: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care proxy if he or she wishes another person to make those decisions instead of the family member. Under Mass. Gen. Laws, chap. 201D, a person may appoint a health care agent to make decisions for him or her upon incompetence. This can be revoked at any time by creating a new health care proxy or by a clear expression of revocation. People often give a copy of the health care proxy to their doctors and sometimes to family members.
4. Will:³⁷ Without a will, a deceased unmarried person’s property passes to:  (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.
5. Funeral Planning Documents: Upon death, a person’s body is given to their next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. But if a person leaves explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements, any confusion can be avoided. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.
6. Living Will: Within a health care proxy, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.
7. Temporary Agent or Guardianship: Parents, particularly those with life-threatening illnesses, may either appoint a temporary agent³⁸ for a period not exceeding 60 days or appoint a guardian³⁹ whose appointment takes effect when the parent dies or is unable to care for the child.  Within 30 days after the appointment of a guardian, the guardian must petition the Probate and Family Court for confirmation of the appointment.  The parent has the right to revoke the powers of the temporary agent or guardian at any point.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with your specific instructions.

If a couple separates, what is the legal status of a Partnership or Relationship Agreement/Contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system (available to all married couples) to help them sort through it.

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes. In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which benefits were previously limited to married spouses. Some states, cities and towns have also enacted domestic partner laws. In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.” See GLAD’s publication on domestic partnership at: www.glad.org/rights/publications/c/relationships/. for further information.

Does Massachusetts provide domestic partner benefits to state employees?

Generally no. By the terms of a 1993 Executive Order,⁴⁰ certain managerial employees of the Commonwealth have expanded leave rights for their partners. But overall, state employees do not have equal access to health benefits or other employee benefits for their partners, and the state pension system does not allow people to name unmarried partners as beneficiaries of an employee’s pension.

Can cities and towns in Massachusetts provide domestic partner health insurance benefits to their own employees?

Probably not. While several cities and towns have done so in the past, a court ruling in 1999 found that Boston did not have the power to expand the reach of the state insurance laws by including domestic partners in the group health system.⁴¹  Amherst has continued its domestic partner program by buying individual health insurance policies for the partners of Amherst employees who previously had group health coverage through the town. Several other cities and towns have also continued to provide coverage.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal income tax on the value of his or her partner’s health insurance benefits, but the employee with a different-sex spouse does not.⁴²  Because of the federal DOMA, an employee with a same-sex spouse for federal (but not Massachusetts) income tax is treated like a domestic partner. And for pensions, a domestic partner has no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

Probably not. Although the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, the law contains an express exemption for employee benefits.⁴³ Thus, an employer may provide domestic partner benefits if it chooses to do so, but it probably cannot be forced to do so through the state non-discrimination law.

Adoption

Can a single gay individual adopt a child in Massachusetts?

Yes.⁴⁴

Can same-sex partners together adopt a child in Massachusetts?

Yes, ever since court rulings by the Supreme Judicial Court in 1993.⁴⁵

What is the advantage of doing a second parent or joint adoption?

A joint adoption means that the child now has two legal parents for all purposes. The law will finally reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits.

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married or in a civil union?

A child born to a married or civil union couple is presumed to be the child of both members of the couple. While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Miller-Jenkins Sidebar: Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is

not

the best way to ensure ongoing parental rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins.  This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.  Finally, however, the Virginia courts agreed that Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant was issued.  Lisa and Isabella still have not been found. 

GLAD and local counsel represent Janet in the Vermont proceedings.  For more information about the case, go to www.glad.org/work/cases/miller-jenkins-v-miller-jenkins. 

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

These are tricky cases, but if the other person can show that he or she is a “de facto parent,” then he or she has the right to visitation with the child. De facto parents should also have rights to custody, but that has not yet been definitively decided by the courts. De facto parents will also have an obligation to support the child.

In a groundbreaking case, the SJC ruled a de facto parent is “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family.”⁴⁶ To establish de facto parenthood, a parent must:

• reside with the child;
• and with the consent and encouragement of the legal parent, perform a share of the caretaking functions⁴⁷ at least as great as the legal parent, shape the child’s daily routine, address his developmental needs;
• discipline the child, provide for his education and medical care, and serve as a moral guide.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication, Protecting Families: Standards for LGBT Families at: www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

1. Co-parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability or death. While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
3. Co-guardianship: This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention for the child and act as a parent. This status is not permanent, and may be revoked by the legal parent.
4. Power of Attorney: This document is signed by the parent and authorizes another person (the attorney-in-fact) to make medical or financial decisions for the child. It should be updated regularly.

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

In Massachusetts, the question turns on whether there is evidence of direct harm to the best interests of the child. As a general matter, a parent’s sexual orientation is not itself grounds for denying custody or visitation.⁴⁸  In a heterosexual case, a court found that a father who had had an extramarital affair and lived with the other woman while married did not deprive him of custody rights where there was no evidence of harm to his children.⁴⁹

What are the factors for making custody determinations generally?

Upon divorce, a court considers the parents as equals (unless one has engaged in misconduct) and makes orders based on the happiness and welfare of the children. “When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or educational health.”⁵⁰

If the parents are unmarried biological parents (such as a former heterosexual couple where one of the parties is now gay or lesbian), then the rules are different than at divorce. In a “paternity” proceeding, the court is still bound to act in the best interests of the child, but in awarding custody is bound to preserve the relationship between the child and the primary caretaker parent.⁵¹ Parents cannot be awarded joint custody unless they have agreed to do so or the court finds that they have successfully exercised joint responsibility for the child in the past and have the ability to communicate with each other about the child’s interests.

Are there different kinds of custody?

Yes.⁵²

1. “Sole legal custody” means that one parent only has the right and responsibility to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
2. “Shared legal custody” means that both parents are involved in and make these decisions.
3. “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
4. “Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child. Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model. Or a parent may argue that the ex’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a substantial change in circumstances. If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁵³

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.

Domestic Violence

What is domestic violence?

Under the law, “abuse” means that any of the following have occurred between people who are family or household members:

• attempting to cause or causing physical harm;
• placing another in fear of imminent serious physical harm; and
• causing another to engage involuntarily in sexual relations by force, threat or duress.⁵⁴

Do the domestic violence laws apply to people in same-sex relationships?

In most situations, yes. “Abuse” between family or household members includes, among other relationships, those relationships in which people are or were residing in the same household, or who have a child in common, or who are or have been in a substantive dating relationship.⁵⁵

How do I get a court order protecting me from an abusive partner?

Victims can file an application for a temporary restraining order (specifying ‘domestic violence’ or ‘209A’) in the clerk’s Office at the District Court with jurisdiction over the neighborhood, in which they live, or at Boston Municipal Court, or at a Superior Court. In emergency situations after normal business hours, orders may be obtained through a police officer or at a police station. In order to keep an abuser from learning the new address of a victim, the victim needs to request that their address be “impounded”. This will not be available, however, with a ‘stay away’ order, since a stay away order needs to specify where the abuser is not supposed to go. A victim’s address is always kept confidential from the public.

Temporary orders are good for ten days, and are generally issued upon request, providing a relationship between victim and offender that is covered by the law and a credible allegation of abuse, threats of abuse, or sexual assault. A hearing to extend the order for up to one year is scheduled for ten days later. There is no fee. The defendant can choose not to show up at the extension hearing, but the victim is required to be present at that hearing for the order to be extended. A lawyer is not needed for the temporary order; in certain cases, it may be helpful to have one for the extension hearing if you think the order is going to be contested by the abuser.

Violations of a 209A order are criminal offenses and can result in the immediate arrest of the abuser. It is worth noting that restraining orders do not restrict the activities or contacts of the victim.

If I go to court, will I ‘out’ myself for all purposes?

Not necessarily. The courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship that they do not want revealed.

Where can I go to get help?

In addition to the local police and district attorney, you can call the Violence Recovery Program at 800-834-3242, The Network/La Red at (617) 742-4911, the Gay Men’s Domestic Violence Project at 800-832-1901, and Jane Doe, Inc. at (617) 248-0922.

Does domestic violence play a role in custody decisions?

Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child. If there is a pattern of abuse, or a serious incident of abuse, a rebuttable presumption arises in the law that it is not in the child’s best interests to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent.⁵⁶

Footnotes

³⁵ Wilcox v. Trautz, 427 Mass. 316 (1998).
³⁶ Mass. Gen. Laws, chap. 190B, Article V, secs. 5-501—5-507.
³⁷ See generally, Mass. Gen. Laws, chap. 190B, Articles II & III.
³⁸ Mass. Gen. Laws, chap. 190B, Article V, sec. 5-103.
³⁹ Mass. Gen. Laws, chap. 190B, Article V, secs. 5-201—5-212.
⁴⁰ Weld, Gov.
⁴¹ Connors v. Boston, 430 Mass. 31 (1999).
⁴² See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996).
⁴³ Laws 1989, chap. 516, sec. 19.
⁴⁴ Mass. Gen. Laws, chap. 210, sec. 1.
⁴⁵ Adoption of Tammy, 416 Mass. 420 (1993) and Adoption of Susan, 416 Mass. 1003 (1993).
⁴⁶ E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 120 S.Ct. 500 (1999).
⁴⁷ “Caretaking functions” are distinct from “parenting functions.”  Caretaking focuses on interactions with a child while, for example, the provision of financial support is a parenting function but not a caretaking one. A.H. v. M.P., 447 Mass. 828 (2006).
⁴⁸ Bezio v. Patenaude, 381 Mass. 563 (1980); Doe. v. Doe, 16 Mass. App. Ct. 499 (1983)(“[A] parent’s [homosexual] life-style—standing alone, is insufficient ground for severing the natural bond between a parent and a child”).
⁴⁹ Fort v. Fort, 12 Mass. App. Ct. 411 (1981).
⁵⁰ Mass. Gen. Laws, chap. 208, sec. 31.
⁵¹ Mass. Gen. Laws, chap. 209C, sec. 10.
⁵² Mass. Gen. Laws, chap. 208, sec. 31.
⁵³ See generally, Mass. Gen. Laws, chap. 208, sec. 31.
⁵⁴ See Mass. Gen. Laws, chap. 209A, sec. 1.
⁵⁵ Mass. Gen. Laws, chap. 209A, sec. 1. See also Abuse Prevention Guidelines, No. 3:02 (Commentary) (“Unmarried persons who live together, or who did so in the past, are also within the court’s jurisdiction under c. 209A, regardless of whether the relationship between them is homosexual, heterosexual, or not sexual”).
⁵⁶ Mass. Gen. Laws, chap. 208, sec. 31A.

Questions & Answers (Accurate as of July 2, 2012)

Does Massachusetts have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes. In 1989, Massachusetts became the second state in the country to pass a comprehensive anti-discrimination law prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services¹. There are also other areas (e.g. education and insurance) where there are prohibitions of sexual orientation discrimination.

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes. The non-discrimination law defines “sexual orientation” as “having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality.”² The language of “being identified as” has been interpreted to mean that, for example, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically. But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian.

Does Massachusetts have anti-discrimination laws that protect transgender people?

Yes, in November 2011, the Massachusetts legislature enacted a law, An Act Relative to Gender Identity,³ that was signed by the Governor and will go into effect on July 1, 2012.  This law prohibits discrimination in several key areas and defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” 

The law also includes ways for a person to show proof of his/her gender identity “including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity . . .”

For further information see GLAD publication, Massachusetts’ Transgender Rights Law: An Act Relative to Gender Identity, at www.glad.org/uploads/docs/publications/ma-trans-rights-law.pdf.

What kinds of discrimination does the anti-discrimination law address?

The Massachusetts law prohibits discrimination in

• EMPLOYMENT
• PLACES OF PUBLIC ACCOMMODATION (however, there is no explicit protection for gender identity)
• HOUSING
• CREDIT
• SERVICES

Employment

Who does the non-discrimination law apply to and what does it forbid?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees (not including the owner or certain family members). It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation or gender identity.⁴  This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers.

The law also applies to employment agencies and labor organizations (e.g. unions).⁵

Example: after employer saw a male employee reading a gay newspaper, employer told him not to bring in “pornographic materials” and then disciplined the employee for making personal phone calls (but not others who made phone calls) and berated him for hanging out with his friends (although the meeting was work-related). When employee confronted employer for referring to him to another employee as a “faggot,” employee was fired. Discrimination was found and the employee was awarded damages.⁶

Example: where employee’s supervisor ridiculed employee as “pipe smoker” and “lollipop licker,” employee awarded damages for harassment.⁷

Example: where a gay male county corrections officer suffered persistent rumors in the workplace concerning his sexual orientation, slurs and shunning at work, undesirable work assignments and unsuccessful internal administrative remedies, a jury awarded him compensatory and punitive damages of $623,000 plus interest and attorney’s fees as the result of this harassment.⁸

Are any companies exempt from the anti-discrimination law?

Employers with fewer than six employees are exempt.

An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-LGBT. But there are no general occupational exemptions from the reach of the non-discrimination law. While that defense is allowed in the law, it is strictly applied and very rarely successful.⁹

Religious institutions and their charitable and educational associations are sometimes exempt from the law.⁹ Where an employer is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may take employment actions that it “calculate[s will] ... promote the religious principles for which it is established or maintained.” This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against an LGBT person.¹¹

Does the Massachusetts law prohibit sexual harassment?

Yes. Sexual harassment is specifically prohibited under the law. Massachusetts law defines “sexual harassment” as:

“sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.” ¹²

A claim of harassment can be pursued under Mass. Gen. Laws, chap. 151B, sec. 4 (16A).¹³ For employers who are not large enough to be subject to the jurisdiction of the Massachusetts Commission Against Discrimination (fewer than 6 employees), claims may be brought directly in court under Mass. Gen. Laws, chap. 214, sec. 1C. ¹⁴

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.¹⁵

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.¹⁶

Public Accommodations

What is a “place of public accommodation”?

A place that holds itself open to, and accepts the patronage of the general public is a place of public accommodation subject to the non-discrimination laws.¹⁷ This definition is intentionally broad and may include a motel, restaurant, rest area, highway or hospital, as just a few examples.

What does the law say about discrimination in places of public accommodation?

Such places may not discriminate, or make any distinctions, or impose any restrictions because of a person’s sexual orientation. “[W]hoever aides or incites” such discriminatory treatment may also be penalized under the law.¹⁸

Example: women, who were attacked by a used car dealer when he realized they were lesbians, stated a claim under the law and were awarded damages in a settlement.

Example: two women who kissed on a bus and were then forced off of the bus by the driver were protected by the law because the driver did not order off of the bus a heterosexual couple who were kissing were awarded damages.¹⁹

Example: couples who were forcibly ejected from a night club because customers were uncomfortable with their being physically affectionate were awarded damages.²⁰

What protections exist for transgender people in places of public accommodation?

Although the new transgender rights law does not contain explicit protections for gender identity, in many cases a transgender person may have a claim of sex discrimination if the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim.²¹ 

In some cases an individual’s gender identity may be regarded as “a gay issue” by the person or entity perpetrating the discrimination and therefore allow a person to bring a sexual orientation claim. 

In Jette v. Honey Farms,²²  MCAD ruled that, unlike the federal disability laws, Massachusetts’ disability law includes transgender people.

So a transgender person who is discriminated against in a public accommodation has protections under the law, but since gender identity is not one of the explicit protected classes, the person will need to find another protected characteristic (e.g. sex, sexual orientation or disability) to use in filing the complaint.

  The transgender coalition to which GLAD belongs will continue to work for the express inclusion of “gender identity” in the public accommodations anti-discrimination law.

 

Housing

What is prohibited by the housing anti-discrimination law in Massachusetts?

The housing laws are intended to prohibit discrimination by those engaged in most aspects of the business of listing, buying, selling, renting or financing housing, whether for profit or not. ²³  Most often, these claims involve a refusal by an owner, landlord or real estate broker to sell, or lease, or even negotiate with a person about the housing they desire to obtain. ²⁴ But other practices are forbidden, too, such as inquiring into or making a record of a person’s sexual orientation or gender identity or marital status²⁵;  or discriminating with respect to mortgage loans.²⁶

Are any landlords exempt from the housing anti-discrimination law?

The main exemption from the law is for owner-occupied buildings that have two units or less. The law is focused on protecting people in “multiple dwelling[s].”  This is a dwelling which is usually occupied for permanent residence and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. If the building only has two apartments and the owner lives in one of them, the exemption may apply.²⁷ The other exemptions in this area of the law are fairly technical and relate to the definitions of “housing development,” “contiguously located housing,” and “other covered housing accommodations.”

Credit and Services

What protections exist under Massachusetts anti-discrimination law with regard to credit?

Any person who furnishes credit, such as a bank, credit union, or other financial institution, may not “deny or terminate such credit ... or ... adversely affect an individual’s credit” because of sexual orientation or gender identity or marital status.²⁸

Example: GLAD brought and settled a claim against a bank which refused to allow two men to apply jointly for a loan, claiming it was both sexual orientation and martial status discrimination;

Example: GLAD brought and settled a claim against a credit union which refused to allow a feminine appearing man from applying for a loan until he came back looking more masculine. A federal court ruled that this stated a claim of sex discrimination in violation of the credit non-discrimination laws.²⁹

How does Massachusetts anti-discrimination law protect people receiving services?

Any person who furnishes services may not “deny or terminate such ... services” because of sexual orientation or gender identity or marital status.³⁰ While many of those businesses which furnish services will be subject to the public accommodations law, this provision also captures those who do not, including those in the business of insurance.

Pursuing a Complaint

How do I file a complaint of discrimination?

You may file in person or in writing at the Massachusetts Commission Against Discrimination. The MCAD prefers for people to file in person, unless an attorney has prepared the complaint for them. Call in advance to set up an appointment and find out what you need to bring.

Boston: (617) 994-6000, One Ashburton Place, Room 601.

Springfield: (413) 739-2145.

Worcester: (508) 799-8010.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the MCAD process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination must be filed at the MCAD within 300 days of the last discriminatory act or acts. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the MCAD?

The MCAD assigns an investigator to look into your case. The parties may engage in limited “discovery”—a legal process which allows the other side to examine the basis of your claim and allows you to examine their justifications and defenses. This is conducted through written questions (interrogatories), requests for documents, and depositions. Ultimately, if the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found in an employment, credit, services, or public accommodations case, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further with more discovery and possibly a trial type hearing.

Even before probable cause is determined in a housing case, the MCAD may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending. Once probable cause is found, the respondent must be notified of its right to have its case heard in court rather than at the MCAD.³¹

If probable cause is found lacking, the case is over unless you appeal the “lack of probable cause” finding. There are special rules and time constraints on appeals within the MCAD that must be observed strictly.

What are the legal remedies the MCAD may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, backpay, restoration in a labor organization, and front pay. In housing cases, remedies may include damages (expenses actually incurred because of unlawful action related to moving, storage, obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may also order civil fines to be paid to the state. In all cases, the remedies may also include emotional distress damages, attorneys’ fees, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person to apply for credit on non-discriminatory terms, allowing person non-discriminatory access to and use of services).

Are there other agencies at which I can file a complaint for discrimination?

Possibly yes depending on the facts of your particular situation. This outline concerns only Massachusetts non-discrimination law, and you may well have other rights.

1. Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of their fair representation.
2. Local Agencies: Several cities and towns have their own local non-discrimination laws and agencies with which you can file a complaint in addition to filing at the MCAD. Sometimes the MCAD allows the local agency to investigate the case instead of the MCAD, which might produce advantages in time and accessibility of staff. Cambridge and Boston have the most developed local agencies, although Newton, Somerville, Worcester and Springfield also have some staff for certain kinds of complaints. Even if you file with the local agency, you must still file with the MCAD within 300 days of the last act of discrimination in order for your case to be processed at all.
3. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law. For example, federal Title VII law forbids employment discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation or gender identity expression.  In April 2012 the federal Equal Opportunity Employment Commission (EEOC) ruled that gender identity discrimination is a form of sex discrimination and so is covered under Title VII.  Thus, if a transgender person who is also gay is fired from a job, the person can file with MCAD (for sexual orientation and gender identity) as well as the EEOC (for gender identity discrimination only). Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with MCAD, then the time limit is extended to the earlier of 300 days or 30 days after MCAD has terminated the case. ³²  (People who work for federal agencies are beyond the scope of this publication.).
4. State or Federal Court: After filing with the MCAD or EEOC, or both, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. ³³

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer or the tenant against the landlord for retaliation. “Retaliation” protections cover those who participate in proceedings, oppose unlawful conduct, or state an objection to discriminatory conduct.³⁴

What can I do to prepare myself before filing a complaint of discrimination?

Call GLAD’s Legal InfoLine at 800-455-4523 (GLAD) any weekday between 1:30 and 4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes. The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation or gender identity as well as race, color, religious creed, national origin, sex, ancestry, age, disability or membership in a uniformed military service of the U.S., including the National Guard. In housing, the criteria are expanded to include marital status, or because the person is a veteran. In public accommodations, gender identity, marital status and age are not included among the law’s protections.

Footnotes

¹ See generally Mass. Gen. Laws, chap. 151B
² Mass. Gen. Laws, chap. 151B, section 3(6).
³ See http://www.malegislature.gov/Bills/187/House/H03810.
⁴ Mass. Gen. Laws, chap. 151B, sec. 4(1).
⁵ Mass. Gen. Laws, chap. 151B, secs. 4(3), 4(2).
⁶ Fijal v. Kentucky Fried Chicken/JTN Food Serv., Inc. 20 M.D.L.R. 45 (1998).
⁷ Magane v. Corcoran Management Co., 18 M.D.L.R. 103 (1996).
⁸ Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006).
⁹ See, e.g. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983).
¹⁰ Mass. Gen. Laws, chap. 151B, section 1(5). 
¹¹ See, e.g., Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994)(housing case).
¹² Mass. Gen. Laws, chap. 151B, sec. 1 (18).
¹³ Making it unlawful “for an employer, personally or through his agents, to sexually harass any employee.”
¹⁴ Setting forth right to be free from sexual harassment.
¹⁵ Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006).
¹⁶ Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)(same-sex sexual harassment forbidden under state law).
¹⁷ Mass. Gen. Laws, chap. 272, sec. 92A.
¹⁸ Mass. Gen. Laws, chap. 272, sec. 98.
¹⁹ Rome v. Transit Express, 19 Mass. Discrim. Law Rptr. (M.D.L.R.) 159 (1997), affirmed, 22 M.D.L.R. 88 (2000);
²⁰ Stoll et al. v. State Street Stock Exchange, Inc., 18 M.D.L.R. 141 (1996).
²¹ See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); Rosa v. Park West Bank,  214 F.3d 213 (1st Cir. 2000);
Millett v. Lutco, Inc., 23 M.D.L.R. 231 (2001)
²² Jette v. Honey Farms, 2001 WL 1602799.
²³ Mass. Gen. Laws, chapter 151B, sec. 4 (3B, 3C, 6, 7).
²⁴ Mass. Gen. Laws, chap. 151B, sec. 4 (6)(a)(public housing), sec. 7 (private housing).
²⁵ Mass. Gen. Laws, chap. 151B, sec. 4(6)(c)(public housing), sec. 4(7)(private housing).
²⁶ Mass. Gen. Laws, chap. 151B, sec. 4(3B).
²⁷ Mass. Gen. Laws, chap. 151B, sec. 1 (11).
²⁸ Mass. Gen. Laws, chap. 151B, sec. 4(14).
²⁹ Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
³⁰ Mass. Gen. Laws,  chap. 151B, sec. 4(14).
³¹ Mass. Gen. Laws, chap. 151B, sec. 5.
³² United States Code 42 sec. 2000e-5(e)(1).
³³ See e.g., Mass. Gen. Laws, chap. 151B, sec. 9.
³⁴ Mass. Gen. Laws, chap. 151B, secs. 4(4), 4A.  See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man).

Questions & Answers (Accurate as of December 15, 2009)

Does Maine have an anti-discrimination law protecting gay, lesbian, bisexual and transgender individuals from discrimination?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005.

This marks the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to ratify a second anti-discrimination law that had been approved by the legislature.

The law provides protection against discrimination based on sexual orientation which is defined as “... a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.”¹

Does it also protect people perceived of as gay, lesbian, bisexual and transgender?

Yes. The non-discrimination law specifically covers people who are

perceived

to be lesbian, gay, bisexual or transgender.

What kinds of discrimination does the anti-discrimination law address?

The Maine law prohibits discrimination in:

• EMPLOYMENT
• PUBLIC ACCOMMODATIONS
• HOUSING
• CREDIT and
• EDUCATION²

Are there other non-discrimination protections available in Maine?

Yes. Several cities and towns have enacted non-discrimination ordinances, including Portland, Falmouth, South Portland, Long Island, Orono, Sorrento, Westbrook and Bar Harbor. In Clarke v. Olsten Certified Healthcare Corp., the Maine Law Court assumed without so stating that the Portland ordinance is enforceable.³

Employment

To whom does the non-discrimination law apply and what does it forbid?

The non-discrimination law applies to governmental employers (local and state) and private employers with any number of employees.⁴ It forbids employers from refusing to hire, or discharging, or discriminating against the employee with respect to any employment matter, including hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment. Nor may an employer use any employment agency that discriminates.⁵ Harassment based on sexual orientation is included within “terms and conditions” of employment.

Employment agencies may not refuse to: classify properly; refer their customers for employment; or otherwise discriminate because of sexual orientation. Labor organizations (e.g. unions) may not deny apprenticeship, membership or any membership rights or otherwise penalize or discriminate against their members because of sexual orientation.⁶

The law also forbids any employer, employment agency, or labor organization, prior to employment or membership, from eliciting or recording information about a person’s sexual orientation, printing any advertisement indicating any preference or limitation based on sexual orientation, or having a system of denying or limiting employment or membership opportunities based on sexual orientation.⁷

Does the law apply to every employer?

No, there is a religious exemption that provides:

“Employer” does not include a religious or fraternal corporation or association, not organized for private profit and in fact not conducted for private profit, with respect to employment of its members of the same religion, sect or fraternity, except for purposes of disability-related discrimination, in which case the corporation or association is considered to be an employer. ⁸

This appears to mean that certain non-profit religious entities (not individuals) are exempt from the law, and a religious organization may require all applicants and employees to conform to the religious tenets of that organization.⁹  The full scope of this exemption may be sorted out in specific court cases.

Does the non-discrimination law have any impact on my employer’s obligation to provide domestic partner benefits to my partner of the same-sex?

Possibly yes. The non-discrimination law can be a powerful tool to equalizing treatment in compensation, and therefore, valuable “fringe benefits.”  As discussed below in the family section of this booklet, the state and several municipalities have already equalized some benefits like health insurance.¹⁰

Private employers in Maine are neither required to offer health insurance to their employees nor to offer spousal or family coverage. However, some employers who provide such coverage may be obligated to provide insurance to same-sex partners to comply with the Maine insurance laws and/or anti-discrimination law. This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.

Harassment

Does Maine law forbid sexual harassment?

Yes, sexual harassment is expressly prohibited by state law.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature constitute sexual harassment when:

1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”¹¹

Although the Maine Law Court has not specifically ruled on the question, it should be as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation, which is discussed below. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws. Compare Oncale v. Sundowner Offshore Services¹²  (man can sue for sexual harassment by other men under federal sexual harassment laws) to Melnychenko v. 84 Lumber Co. ¹³ (same-sex sexual harassment forbidden under Massachusetts state law).

Are there any protections from sexual orientation harassment?

Yes. In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledged the existence of sexual orientation harassment.¹⁴  Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment when:

1. submission to this conduct is a condition of employment or a term of membership in a union;
2. submission to or rejection of this conduct is used as a basis for a decision made by unions or employers that effect the individual;
3. such conduct interferes or attempts to interfere with the individuals work performance or creates an intimidating, hostile, or offensive working or union environment. ¹⁵

Employers or labor organizations are responsible for their actions and for those of their employees with respect to sexual orientation harassment.¹⁶

Public Accommodations

What is a place of public accommodation?

A place of public accommodation means a facility operated by a private or public entity whose operations fall into categories such as lodging, restaurants, entertainment, public gathering, retail stores, service establishments, transportation, museums, libraries, recreation facilities, exercise or health facilities, schools and educational institutions, social service establishments, or government buildings. Generally, any establishment that caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from the general public is a place of public accommodation.¹⁷

What does the law say about discrimination in places of public accommodation?

The law makes it illegal for places of public accommodation to discriminate on the basis of sexual orientation or “… in any manner withhold from or deny the full and equal enjoyment … of the accommodations, advantages, facilities, goods, services or privileges of public accommodation.”  The law also makes it illegal to advertise that any place of public accommodation is restricted to people of a particular sexual orientation.¹⁸

Housing

What is prohibited by the housing anti-discrimination law in Maine?

The fair housing laws apply to any person with the right to sell, rent, lease or manage residential housing. It covers any transaction related to housing—including advertising, inquiring, showing, selling, renting, leasing, pricing, evicting, misrepresenting availability or asking price, or failing to communicate an offer.¹⁹

The law declares that every individual has a basic civil right to secure decent housing in accordance with the individual’s right to pay and without discrimination because of sexual orientation.²⁰

Those who finance housing — whether financing for the acquisition, construction, rehabilitation, repair or maintenance of residential housing — are barred from discriminating.

Are any landlords exempt from the housing anti-discrimination law?

The following landlords are exempt from the law:

• an owner-occupied 2-family dwelling;
• an owner-occupied single family dwelling that rents not more than 4 rooms; and
• a dwelling owned, controlled, or operated for other than a commercial purpose by a religious corporation that rents to its membership.²¹

Credit

How does the Maine anti-discrimination law protect people with regard to credit?

It is unlawful credit discrimination for any creditor to refuse the extension of credit to any person solely on the basis of sexual orientation.²² The law requires that the Superintendent of Financial Institutions and the Superintendent of Consumer Credit Protection cooperate with the Maine Human Rights Commission in enforcing the credit anti-discrimination law.²³

Education

How does the Maine anti-discrimination law apply to education?

Maine law applies to both public and private schools and makes the following discrimination on the basis of sexual orientation unlawful:

• to exclude a person from, deny a person the benefits of, or subject a person to discrimination in any academic, extracurricular, research, occupational training or other program or activity;
• to deny a person equal opportunity in athletic programs;
• to deny admission to the institution or program or fail to provide equal access to any information about an institution or program;
• to deny financial assistance availability and opportunity.²⁴

Are any educational institutions exempt from the law?

Yes. Any educational facility owned, controlled or operated by “a bona fide religious corporation, association or society” is exempt.²⁵

Transgender/Gender Identity

What protections exist for transgender people under the discrimination laws?

The definition of sexual orientation in the law includes a person’s “actual or perceived … gender identity or expression.”  This is explicit protection for transgender persons in Maine.²⁶

The Maine Human Rights Commission has also set out its view that employers must “reasonably accommodate” employees with respect to gender identity and gender expression issues in the workplace. The only legitimate reason for failure to do so is if doing so “would impose an undue hardship on the conduct of the business.”²⁷

In some situations a transgender person may also have a claim of sex or disability discrimination if he or she is adversely treated at work, in housing, in a place of public accommodation, in a credit transaction or at an educational institution. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim as well. See Price Waterhouse v. Hopkins²⁸ and Rosa v. Park West Bank²⁹.

In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules to add “sexual orientation” to the protected classifications under the Maine Human Rights Act. As part of these amendments,” the MHRC defined both “gender identity” and “gender expression” as protected under the definition of “sexual orientation.”

The Commission defined “gender identity” as an “individual’s gender-related identity, whether or not the identity is different from that traditionally associated with that individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.”³⁰

It has also defined “gender expression” as “the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle.”³¹

For more information, see GLAD’s publication, Transgender Legal Issues.

Pursuing a Complaint

How do I file a complaint of discrimination?  What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml The C.ommission prefers for people to file complaints in writing. For an overview of this process refer to the MHRC regulations, available at http://www.maine.gov/mhrc/laws/index.html.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred.³²

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact-finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

• there are no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court;³³
• there are reasonable grounds, it will try to resolve the matter through settlement.³⁴

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint.³⁵ The person may then file an action in the Superior Court.³⁶  In some situations, the Commission may file an action in court on your behalf.³⁷

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. Please call the GLAD Legal InfoLine for help or for an attorney referral.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 6 months of the discriminatory act or acts.³⁸ There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of.”³⁹

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue.⁴⁰

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available. ⁴¹  If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices.⁴²

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases⁴³; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases⁴⁴; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices)⁴⁵.

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

1. The present non-discrimination laws for employment forbid taking action against someone because of race, color, sex, physical or mental disability, religion, ancestry, national origin, age, or because a person previously filed a worker’s compensation claim, as well as sexual orientation.
2. In public accommodations, it is illegal to discriminate on the basis of race, color, sex, physical or mental disability, religion, ancestry or national origin, as well as sexual orientation.
3. In housing, the protected characteristics for public accommodations apply plus familial status.
4. In credit, in addition to sexual orientation, the protected characteristics are age, race, color, sex, ancestry, religion, national origin and marital status.
5. In education, the protected characteristics in addition to sexual orientation are sex, physical or mental disability, national origin or race.

Are there other agencies at which I can file a complaint for discrimination?

You may be able to file complaints with other agencies depending on the facts of your particular situation. This outline concerns only Maine’s state non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a grievance. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against it for its failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes an individual may state a claim for a violation of federal law in addition to state law. For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation. Thus, a gay person who is fired from a job because of his or her sexual orientation can file with the MHRC only. In other instances, an employee can file with both the MHRC and the federal Equal Employment Opportunity Commission (for cases when physical disability is involved). For example, a gay person with HIV who is fired from a job can file with the Commission as well as the federal Equal Employment Opportunity Commission (EEOC). Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with MHRC, then the time limit is extended to the earlier of 300 days or 30 days after MHRC has terminated the case. For more information, see the EEOC website.
3. State or Federal Court: After filing with the MHRC or EEOC (if you file with one on grounds protected by both state and federal law, your complaint is automatically cross-filed with the other), as discussed above, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies. For example:

• If a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter can be pursued in court.
• If a person has a claim for a violation of constitutional rights, such as a teacher or other governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who participate in MHRC proceedings or otherwise oppose unlawful conduct, whether as a complainant or as a witness. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.⁴⁶

What can I do to prepare myself before filing a complaint of discrimination?

In evaluating your potential claims, you have the right to request a complete copy of your personnel file

at any time

⁴⁷. Personnel files are the official record of your employment and are an invaluable source of information.⁴⁸

Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Try to obtain and bring copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

¹ 5 Me. Rev. Stat. sec. 4553 (9-C).
² 5 Me. Rev. Stat. sec. 4552 et seq.
³ 714 A.2d 823 (Me. 1998).
⁴ 5 Me. Rev. Stat. sec. 4553 (4) (definition of employer).
⁵ 5 Me. Rev. Stat. sec. 4572 (1)(A).
⁶ 5 Me. Rev. Stat. sec. 4572 (1)(B) & (C).
⁷ 5 Me. Rev. Stat. sec. 4572 (1)(D).
⁸ 5 Me. Rev. Stat. sec. 4553 (4) (definition of “employer”).
⁹ 5 Me. Rev. Stat. sec. 4573-A (2).
¹⁰ This result also conforms with the better view of the law, i.e., that it is discrimination based on sexual orientation to condition benefits on a status (marriage) that only gay people cannot attain. See Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781 (Alaska 2005); Bedford v. N.H. Cmty. Technical Coll. Sys., Superior Court Order, 04-E-230 (May 3, 2006).
¹¹ 94-348 Rules of Maine Human Rights Com’n, 3.06 I (1). Available at: http://www.maine.gov/mhrc/laws/index.html    .
¹² 523 U.S. 75 (1998).
¹³ 424 Mass. 285, 676 N.E.2d 45 (1997).
¹⁴ See generally 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12. Available at: http://www.maine.gov/mhrc/laws/index.html .
¹⁵ 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (1) (a) - (c). Available at: http://www.maine.gov/mhrc/laws/index.html .
¹⁶ 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (2). Available at: http://www.maine.gov/mhrc/laws/index.html.
¹⁷ 5 Me. Rev. Stat. sec. 4553 (8) (definition of “public accommodation”).
¹⁸ 5 Me. Rev. Stat. sec. 4592 (1).
¹⁹ 5 Me. Rev. Stat. sec. 4582. See also “Panel backs 2 men in housing complaint,” Bangor Daily News, Sept. 18, 2007 (discusses first case where the Maine Human Rights Commission “found reasonable grounds to a housing discrimination claim based on sexual orientation.”)
²⁰ 5 Me. Rev. Stat. sec. 4581
²¹ 5 Me. Rev. Stat. sec. 4553 (6).
²² 5 Me. Rev. Stat. sec. 4596.
²³ 5 Me. Rev. Stat. sec. 4598.
²⁴ 5 Me. Rev. Stat. sec. 4602.
²⁵ 5 Me. Rev. Stat. sec. 4602.
²⁶ 5 Me. Rev. Stat. sec. 4553 (9-C).
²⁷ 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (F) (1). Available at: http://www.maine.gov/mhrc/index.html.
²⁸ 490 U.S. 228, 251 (1989)
²⁹ 214 F.3d 213 (1st Cir. 2000).
³⁰ 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (2). Available at: http://www.maine.gov/mhrc/laws/index.html.
³¹ 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (3). Available at: http://www.maine.gov/mhrc/laws/index.html.
³² 5 Me. Rev. Stat. sec. 4611.
³³ See generally 5 Me. Rev. Stat. sec. 4612.
³⁴ 5 Me. Rev. Stat. sec. 4612.
³⁵ 5 Me. Rev. Stat. sec. 4612 (6).
³⁶ 5 Me. Rev. Stat. sec. 4621.
³⁷ See generally 5 Me. Rev. Stat. sec. 4612.
³⁸ 5 Me. Rev. Stat. sec. 4611.
³⁹ 5 Me. Rev. Stat. sec. 4613(2)(C).
⁴⁰ 94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html  .
⁴¹ 5 Me. Rev. Stat. secs. 4613, 4614.
⁴² 5 Me. Rev. Stat. sec. 4622.
⁴³ 5 Me. Rev. Stat. sec. 4572.
⁴⁴ 5 Me. Rev. Stat. sec. 4553 (8) (definition), 4592 (prohibition).
⁴⁵ 5 Me. Rev. Stat. sec. 4582.
⁴⁶ United States Code 42 sec. 2000e-5(e)(1).
⁴⁷ 5 Me. Rev. Stat. sec. 4572 (1)(E).  See also Provencher v. CVS Pharmacy, 76 Fair Empl.Prac.Cas. (BNA) 1569 (1st Cir.(N.H.) 1998) (upholding federal retaliation claim of gay man).
⁴⁸ 5 Me. Rev. Stat. sec. 7071 (Employee right to request personnel file).
⁴⁹ 5 Me. Rev. Stat. sec. 7070 (Definition of personnel record).

Questions & Answers (Accurate as of November 3, 2011)

Discrimination Based on HIV Status

Does Maine have laws that protect people with HIV from discrimination?

Yes, Maine has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

Who is protected under these anti-discrimination laws?

The following people are protected under the Maine Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA):

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who are regarded or perceived as having HIV.
• A person who does not have HIV, but who has a “relationship” or “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person or persons with HIV.

Discrimination in Employment

ADVERSE TREATMENT

What laws protect people with HIV from discrimination in employment?

People with HIV are protected from employment-related discrimination under the MHRA¹ and the federal ADA². Both of these statutes, which are almost identical, prohibit discrimination in employment on the basis of a person’s disability. Maine law covers state and private employers with one or more persons.³ The ADA covers employers with 15 or more employees.

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact GLAD’s Legal InfoLine in order to strategize about ways to address any such requests.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

No, an employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

Can an employer in Maine ever require an applicant or employee to take an HIV test?

No, an employer may not require an applicant or an employee to submit to an HIV test or disclose HIV status as a condition of employment or to maintain employment.⁴

There is an exception, however, permitting an employer to require an HIV test when based on a “bona fide occupational qualification.” There are few, if any, employment settings in which an employer could prevail in its view that an HIV test is based on a “bona fide occupational qualification.” Nevertheless, one recent legal development merits special attention here. Some courts have ruled that HIV-positive health care workers who perform invasive procedures can be terminated from employment because of the risk of HIV transmission posed to patients. The AIDS Law Project believes that these cases have been wrongly decided. In light of these cases, however, it is critical that a health care worker obtain legal advice or assistance if an employer requires an HIV test as a condition of employment.

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and Maine law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After an offer of employment, can an employer require a medical exam? What guidelines apply?

After a conditional offer of employment, the ADA and Maine Law permit an employer to require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections. After employment has begun, the ADA and Maine Law permit an employer to require a physical examination, only if it is job-related and consistent with business necessity.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

In the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”⁵

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, a bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. To prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:
   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to brainstorm to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Discrimination in Places of Public Accommodation

What laws protect against discrimination by health care providers, businesses, and other public places?

Under the ADA⁶ and MHRA⁷, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “place of public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 1973⁸ prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices, as long as these facilities are generally open to the public.

In addition, Maine law specifically prohibits discrimination in education based on disability.⁹

Can a physician in Maine require an HIV test as a prerequisite for treatment?

No, a health care provider may not deny treatment or care based on the refusal to consent to HIV testing.¹⁰

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Maine law.

How have courts and medical experts responded to these arguments?

Courts and medical experts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous”

   Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

   For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.¹¹

   In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “Treating People with HIV Requires Special Expertise”

   In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

   In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care¹². The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA¹³, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does Maine law compare with the ADA?

Maine law will be interpreted in a similar manner to the ADA.

Discrimination in Housing

What laws prohibit discrimination in housing?

It is illegal under both Maine law¹⁴ and the National Fair Housing Amendments of 1988¹⁵ to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

Are there any exceptions to these laws?

Yes, exceptions to Maine law exist for the rental of a room in an owner occupied building where not more than 4 rooms are rented; and for two family owner occupied buildings. In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit the occupancy to members.

Remedies for Discrimination

MAINE LAW

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/. The Commission prefers for people to file complaints in writing. For an overview of this process refer to the MHRC regulations, available at http://www.maine.gov/mhrc/laws/.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred.¹⁶

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact-finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

• there are no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court;¹⁷
• there are reasonable grounds, it will try to resolve the matter through settlement.¹⁸

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint.¹⁹ The person may then file an action in the Superior Court.²⁰ In some situations, the Commissionmay file an action in court on your behalf.²¹

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. Please call GLAD’s Legal InfoLine for help or for an attorney referral.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 6 months of the discriminatory act or acts.²² There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of.”²³

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue.²⁴

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available.²⁵ If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices.²⁶

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Are there other agencies at which I can file a complaint for discrimination?

You may be able to file complaints with other agencies depending on the facts of your particular situation. This outline concerns only Maine’s state non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a grievance. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against it for its failure to work with you, or for failure of duty of fair representation.
2. State Court: After filing with the MHRC as discussed above, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies. For example:

• If a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter can be pursued in court.
• If a person has a claim for a violation of constitutional rights, such as a teacher or other governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who participate in MHRC proceedings or otherwise oppose unlawful conduct, whether as a complainant or as a witness. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.²⁷

What can I do to prepare myself before filing a complaint of discrimination?

In evaluating your potential claims, you have the right to request a complete copy of your personnel file at any time.²⁸ Personnel files are the official record of your employment and are an invaluable source of information.²⁹

Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Try to obtain and bring copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

FEDERAL LAW

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act and the employer must have at least 15 employees. However, an employee filing a disability case with the MHRC does not have to file a separate claim with the EEOC. There is a check-off on the MHRC complaint form to have the MHRC file the claim with the EEOC. The EEOC will then defer to the MHRC’s investigation. If a person initially institutes his or her complaint with the MHRC, the time limit for filing a Federal complaint is extended to the earlier of 300 days or 30 days after the MHRC has terminated the case. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding. To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint in court with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

Footnotes

¹ 5 M.R.S.A. § 4571 & 4572 (2).
² 42 U.S.C §§ 12101, 12112.
³ 5 M.R.S.A § 4553.
⁴ 5 M.R.S.A. § 19204-B.
⁵ Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (1995).
⁶ 42 U.S.C. § 12182.
⁷ 5 M.R.S.A. § 4591.
⁸ 29 U.S.C.A. § 794.
⁹ 5 M.R.S.A. §4601-4602.
¹⁰ 5 M.R.S.A. § 19203-A (3).
¹¹ 524 U.S. 624 (1998).
¹² 898 F. Supp. 1157 (E.D. La 1995).
¹³ 42 U.S.C. §§ 12181-12188.
¹⁴ 5 M.R.S.A §§ 4581-4582.
¹⁵ 42 U.S.C. §§ 3601-3619.
¹⁶ 5 M.R.S.A § 4611.
¹⁷ See generally 5 M.R.S.A. § 4612.
¹⁸ 5 M.R.S.A. § 4612.
¹⁹ 5 M.R.S.A § 4612 (6).
²⁰ 5 M.R.S.A. § 4621.
²¹ See generally 5 M.R.S.A. § 4612.
²² 5 M.R.S.A. § 4611.
²³ 5 M.R.S.A. § 4613(2)(C).
²⁴ 94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html.
²⁵ 5 M.R.S.A. §§ 4613, 4614.
²⁶ 5 M.R.S.A. § 4622.
²⁷ 5 M.R.S.A. § 4572 (1)(E). 
²⁸ 5 M.R.S.A. § 7071 (Employee right to request personnel file).
²⁹ 5 M.R.S.A. § 7070 (Definition of personnel record).

Questions & Answers (Accurate as of November 3, 2011)

HIV Testing

RIGHT TO DECLINE HIV TESTING

What type of consent or notice does Maine law require before an HIV test can be done?

Maine law mandates that an HIV test must be “voluntary and undertaken only with the patient’s knowledge that an HIV test is planned.”³⁰ Maine, however, has eliminated its requirement that no HIV test may be conducted without a patient’s specific written informed consent.³¹ The law now requires only that “[a] patient must be informed orally or in writing that an HIV test will be performed unless the patient declines.”³² The law also requires that the information given to patients before the test include the meaning of positive and negative test results. In addition, the patient must have the opportunity to ask questions.

Maine law authorizes anonymous HIV testing sites.³³

Health insurers or healthcare plans requiring an HIV test must still obtain written informed consent to perform an HIV test.³⁴

In addition, Maine law prohibits a health care provider from denying medical treatment solely because an individual has refused consent to an HIV test.³⁵

COUNSELING REQUIREMENTS

What do providers have to inform their patients about before and after testing a person for HIV?

In 2007, in order to streamline testing procedures, Maine eliminated mandatory pre-test counseling for an HIV test. Patients who test positive for HIV, however, must be offered post-test counseling, unless the patient declines by signing a waiver.  The counseling must at a minimum include:

1. The reliability and significance of the test results.
2. Information about preventive practices and risk reduction.
3. Referrals for medical care and support services, as needed.³⁶

A provider must offer face-to-face post-test counseling, but may provide an alternative means of providing the information if the client declines face-to-face counseling. In addition, a written memorandum summarizing the contents of the post-test counseling information must be provided to the client.

MINORS AND INFORMED CONSENT

Can a physician test a minor for HIV without consent of a parent or guardian?

A physician may test a minor for HIV without obtaining the consent of the minor’s parent or guardian.³⁷

In addition, a physician is not obligated to, but may, inform the minor’s guardian or parent of any medical treatment rendered, including HIV test results. If confidentiality is important to you, it is a good idea to talk to your doctor up front and understand his or her policies on this issue.

HIV TESTING WITHOUT CONSENT

Are there circumstances under which Maine law permits HIV testing, even against a person’s wishes?

Yes, Maine law permits involuntary HIV testing in certain limited circumstances, such as testing of a person convicted of a sexual assault crime, and of the source of an occupational exposure:

1. Occupational Exposure

   Under Maine law, a person who, while performing his or her job duties, experiences an exposure to potentially infectious blood or body fluids of another person³⁸ may petition the district court for an order that the source of the exposure submit to involuntary HIV testing and that the results be provided to the employee.³⁹

   In order for the district court to make such an order, the following conditions must be met:

   • The exposure must create a “significant risk of HIV infection,” as defined by the Bureau of Health.⁴⁰
   • The employer must first attempt to obtain written informed consent to an HIV test from the source of the exposure.
   • The employee exposed to the blood or body fluids must have consented to and obtained an HIV test immediately following the documented exposure.

   The statute sets forth the procedure for obtaining a court order. The employee must file a petition in the district court. The district court must schedule a confidential hearing and, if requested, appoint counsel for any indigent client. The court, however, may order a public hearing or release a report of the hearing to the public upon request from the source of the exposure.

   The court may order subsequent HIV testing arising from the same exposure.

   If the court orders an involuntary HIV test, the source may appeal the order to the Superior Court.

   The employer of the person exposed is responsible for the employee’s costs, including the payment of attorneys’ fees.

   The fact that an HIV test was given as a result of an occupational exposure and the result of the test may not appear in any records of the individual tested. In addition, the subject of the test may choose not to be informed about the test result.⁴¹

2. Occupational Exposure in a Health Care Setting

   When an occupational exposure occurs in a health care setting, and the source patient is not present or cannot be contacted to give authorization for an HIV test, or if the source patient is incapacitated, Maine law authorizes the following people, in descending order of priority, to authorize an HIV test on a blood or tissue sample from the source patient:

   1. the patient’s legal guardian;
   2. an individual who has power of attorney for health care for the patient;
   3. an adult relative, by blood, marriage, or adoption;
   4. an adult “with whom the patient has a meaningful social or emotional relationship;” and
   5. a physician who is familiar with occupational exposures to HIV.⁴²

   If the person contacted for authorization refuses to authorize the test, then the test may not conducted without a court order as described in section one, above.

   The test result may not be provided to the person authorizing the test and may not appear in the patient’s records without express patient authorization. Test results may be given only to the exposed person or certain limited health care providers managing the exposure.⁴³

3. After Conviction of Sexual Assault

   A victim of a sex crime (or the parent or guardian, in the case of a minor or an incapacitated adult) may petition the court for an involuntary HIV test of a person who has been convicted of the sex crime. The petition must be filed within 180 days of the conviction.⁴⁴

   The results of the involuntary HIV test are disclosed to the victim-witness advocate, who shall disclose them to the petitioner. The petitioner must previously have had HIV test counseling. The court must order that the test results be disclosed to the convicted offender if requested by the victim.

4. Testing of Donated Blood Products

   Informed consent for an HIV test is not required when testing a donated human body part to assure the medical acceptability of an organ donation.⁴⁵

   In addition, certain laboratories, researchers, blood banks and health care providers may test blood or tissues for HIV without informed consent for the purpose of research as long as the identity of the test subject is not known.

5. Testing of Pregnant Women and Newborns

   All pregnant women must be informed orally or in writing that an HIV test will be included in the standard panel of prenatal medical tests, unless the woman declines HIV testing.  In addition, a health care provider is mandated to test a newborn for HIV within 12 hours of birth if the health care provider does not know the mother’s HIV status or “believes that HIV testing is medically necessary.”  There is an exception to such newborn testing if the parent asserts an objection based on religious or conscientious beliefs.⁴⁶

Privacy

CONFIDENTIALITY OF HIV TEST RESULTS

Are there laws in Maine that protect the privacy of information, such as HIV?

Yes. Maine law prohibits the disclosure of HIV test results to anyone other than the subject of the test without the subject’s authorization.⁴⁷ When a medical record contains a person’s HIV status, the patient must elect in writing whether to authorize the release of that portion of the medical record.⁴⁸ A health care provider who has been designated by the subject of the test to receive HIV test result information may make the results available only to other health care providers working directly with the patient and only for purposes of providing direct medical or dental patient care.⁴⁹

Does a person with HIV have a Constitutional right to privacy?

Yes, many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, or doctors at a state hospital.

How do courts determine if a person’s constitutional right to privacy has been violated?

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

Remedy for Unlawful HIV Testing or Disclosure

A person who violates Maine law regarding HIV testing or the confidentiality of HIV test results is liable to the subject for actual damages and costs plus a civil penalty of up to $1,000 for a negligent violation and $5,000 for an intentional violation.⁵⁰

STATE HIV REPORTING REQUIREMENTS

Does Maine have reporting laws that require HIV or AIDS diagnoses to be reported to the Maine Department of Health and Human Services?

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Maine requires that health care providers and facilities report the names of individuals diagnosed with AIDS or HIV to the Department of Health and Human Services within 48 hours of the diagnosis.⁵¹ Information is kept confidential and may not be disclosed except as permitted by 5 M.R.S.A. § 19203 (Maine’s law on confidentiality of HIV tests).

 

Footnotes

³⁰ 5 M.R.S.A §19203-A.
³¹ 5 M.R.S.A. §19203-A.
³² 5. M.R.S.A. §19203-A (emphasis added). While the title of § 19203-A is “voluntary informed consent required,” Maine’s law is not an informed consent system. Informed consent, whether oral or written, requires that a patient affirmatively assent before a test can be done. Current Maine law simply requires that a patient be notified that a test will occur and places the burden on the patient to opt out.
³³ 5 M.R.S.A. §19203-B.
³⁴ 5 M.R.S.A. §19203-A (2).
³⁵ 5 M.R.S.A. § 19203-A (3).
³⁶ 5 M.R.S.A. § 19204-A.
³⁷ 32 MRSA § 3292 permits a physician to provide medical treatment for venereal disease to a minor without parental consent.  The Maine Department of Human Services has classified HIV as a venereal disease.
³⁸ The statute refers to this as a “bona fide occupational exposure,” which means “skin, eye, mucous membrane or parenteral contact of a person with the potentially infectious blood or body fluids of another person that results from the performance of duties by the exposed person in the course of employment.”  5 MRSA Sec. 19201 (1-A).
³⁹ 5 MRSA Sec. 19203-C.
⁴⁰ The Bureau of Health defines a “significant risk of HIV infection” as exposure to blood, semen, vaginal fluid, cerebrospinal fluid, synovial fluid, pleural fluid, peritoneal fluid, pericardial fluid, or amniotic fluid, resulting from sexual intercourse, mucous membrane contact, parenteral inoculation, or cutaneous exposure involving large amounts or prolonged contact on non-intact skin.  See Rules for the Control of Notifiable Conditions, Maine Department of Human Services, Bureau of Health, 1996, p. 15.
⁴¹ 5 M.R.S.A. § 19203-A.
⁴² 5 M.R.S.A. § 19203-A (4-A).
⁴³ 5 M.R.S.A. § 19203-A (4-A).
⁴⁴ 5 M.R.S.A. § 19203-F.
⁴⁵ 5 M.R.S.A. § 19203.
⁴⁶ 5 M.R.S.A. § 19203-A(6)
⁴⁷ 5 M.R.S.A. § 19203.
⁴⁸ 5 M.R.S.A. § 19203-D.
⁴⁹ 5 M.R.S.A. § 19203 (2).
⁵⁰ 5 M.R.S.A. § 19206
⁵¹ Department of Health and Human Services, Maine Center for Disease Control & Prevention, Chapter 258 (Rules for the Control of Notifiable Disease Conditions), 10-144.

Questions & Answers (Accurate as of November 3, 2011)

Other HIV-Related Laws

Access to Clean Syringes

What are Maine laws regarding the purchase and possession of needles?

Under Maine law, a person who is 18 years of age or older may purchase a “hypodermic apparatus,” such as a hypodermic syringe and needle, from a pharmacist and other authorized sellers.⁵¹ An individual, however, may not lawfully purchase or possess more than ten “hypodermic apparatuses” at any one time, unless otherwise authorized by law (such as a physician acting within the scope of employment).⁵²

Does Maine allow needle exchange programs?

Yes. Maine law authorizes the Maine Center for Disease Control and Prevention to certify needle exchange programs.⁵³ There is no limit on the number of hypodermic needles participants in these programs may possess.

Footnotes

⁵² 32 M.R.S.A. § 13787-A.
⁵³ 17-A M.R.S.A. § 1111.
⁵⁴ 22 M.R.S.A. § 1341.

Questions & Answers (Accurate as of July 2, 2012)

Hate Crimes & Violence

Does Massachusetts have a hate crimes law?

Yes, Massachusetts has several provisions of law geared toward identifying and punishing hate-motivated violence.⁵⁷

Most specifically, Massachusetts law contains a “Hate Crimes Penalties Act” which provides stiff penalties for those who:

• commit an assault or a battery; or, cause damage to a person’s real or personal property
• with the intent to intimidate a person because of sexual orientation, or gender identity, as well as “race, color, religion, national origin or disability.”⁵⁸

Massachusetts also has a criminal law which punishes those who:

• by force or threat of force,
• willfully injure, intimidate, interfere with (or attempt to do so), or oppress or threaten a person
• in the free exercise or enjoyment of any right or privilege secured to them under state or federal constitutions or laws⁵⁹. The penalties are higher when force is used than when it is not. ⁶⁰

There are also specific laws concerning vandalism of personal property, homes, and sites of religious worship which are beyond the scope of this document.

In a typical hate crimes case, both sections 37 and 39 are charged, along with another criminal statute (such as assault and battery, or assault and battery with a dangerous weapon, or assault with intent to murder and maim). Sometimes it is easier to prove a violation of section 37 than section 39 so both are charged. (Section 37 requires proving only a willful interference with a person’s secured rights, whereas a successful prosecution under section 39 requires that the motivation behind an attack was a particular characteristic of the victim).

In order to track hate crimes, the State has also set up a reporting system so that incidents alleged are centrally recorded^61.  To enter an incident of hate violence into the statistics, contact the Violence Recovery Program at Fenway Community Health, (800) 834-3242.

How does the law define what is a hate crime?

Under state law, a “hate crime” is “any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender, sexual orientation, or gender identity prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation.” ⁶² It also includes any violation of several other laws.

Technical definitions aside, law enforcement officials and others tend to use the following as guideposts for determining whether or not a crime is an anti-gay hate crime.

• Did the attacker use anti-LGBT language or epithets?
• Was the victim in an area associated with LGBT people (e.g. outside a gay bar or a cruising area)?
• Have there been similar crimes in the area?
• Did the attack occur regardless of economic motive (i.e., person attacked but not robbed)⁶³?

Where can I call if I think I’ve been a victim of a hate crime?

In addition to contacting the local police, you may contact the Criminal Division of the Attorney General’s office at (617) 727-2200. Be sure to explain all of the factors that make you think this was a crime of bias.

For support and advocacy, contact the Violence Recovery Program at Fenway Community Health. In addition to short term counseling for victims, their professional advocates help people understand and navigate the criminal system from police reporting to obtaining injunctions to the various appearances and hearings of the court process. Their phone number is (800) 834-3242.

What other options do I have if I think I have been the victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, or instead of going that route if there was no force or threat of force in your case, you may seek a “civil rights injunction” from the Superior Court.

A civil rights injunction is a protection order issued by the court, and typically forbids a person or persons from coming near you (or your home, or school, or workplace, or from telephoning you) because they have been determined to be threatening to you. To obtain an injunction, you must show that the person interfered or attempted to interfere with the exercise of your secured rights by using threats, intimidation or coercion. This is not always as easy as it sounds.

You can seek a civil rights injunction with your own lawyer, or you can ask the Attorney General to do so on your behalf⁶⁴. The Attorney General’s Office, Civil Rights Unit, is found at (617) 727-2200, but cannot fulfill all of the requests it receives. In an action you bring on your own, you may also seek compensatory money damages and an award of attorneys’ fees.

A violation of a civil rights injunction is itself a criminal offense. The penalties for a violation are greater when bodily injury results from the violation than when it does not.⁶⁵

For further information see GLAD’s publication, Anti-LGBT Violence and Harassment, at www.glad.org/uploads/docs/publications/Anti-LGBT-Harassment-Violence.pdf

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act⁶⁶ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.  The Federal Bureau of Investigation (FBI) encourages victims of hate crimes to make a report to the FBI as well as local and state authorities.  The Boston field office of the FBI can be reached at 617-742-5533.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Does Massachusetts have a law to protect people who are being harassed or threatened?

Effective May 10, 2010, a law went into effect that provides the opportunity for persons who are victims of harassment to obtain a restraining order without needing a dating or close family relationship to the perpetrator, as is required to obtain a Domestic Violence Restraining Order (see above).  The new law, Chapter 258E of the General Laws, provides for the victim to be able to petition his/her local court (district court, superior court, Boston Municipal Court or juvenile court—if both the victim and harasser are under 17 years of age) to issue the Harassment Prevention Order. 

No filing fees or fees for certified copies of the order are charged, but there may be other court costs.  In emergency situations after the court is closed, you can get a temporary order from the police, but you will still have to appear in court the next business day.  Filing for a Harassment Prevention Order does not preclude pursuing other civil or criminal remedies, but you must disclose any prior or pending actions with the harasser when you file your complaint.

What do I need to show in order to get a Harassment Prevention Order?

You need to document:

• the harasser committed three or more acts against you of willful and malicious conduct that caused fear, intimidation, abuse or damage to property; or
• the harasser forced you to involuntarily engage in sexual relations; or
• the harasser violated any of the criminal laws in Chapter 265 that pertain to sex with a minor, indecent assault and battery, rape, stalking or the law in Chapter 272 that deals with drugging for sexual intercourse.

What measures can the court take to protect the victim from future harassment?

The court may first issue a temporary Harassment Prevention Order for up to 10 days to protect the victim which may include instructing the harasser:

• to refrain from abusing or harassing the victim,
• to refrain from contacting the victim,
• to stay away from the victim’s home or workplace, and
• to pay the victim monetary compensation for the losses suffered as a direct result of the harassment.

How does the victim extend the temporary order?

After granting the temporary order, the harasser must be notified and be given an opportunity within 10 days to appear in court and to be heard on the question of continuing the temporary order.  If the harasser does not appear, the temporary order will automatically be extended.  The court can extend the Harassment Prevention Order for up to a year.  At the expiration of the order, the victim can petition the court to provide another extension.  The court may modify the order at any time based upon a petition from either party.

What happens if the harasser violates the Harassment Prevention Order?

Violation of the order is a criminal offense punishable by a fine of not more than $5,000 or by imprisonment of not more than 2 ½ years, or both.

What if I have a protection order issued by another jurisdiction?

Provided the victim presents the appropriate Massachusetts court with a certified copy of the protection order and a sworn affidavit that the order is presently in effect as written, the protection order will be enforced in Massachusetts for as long as the order was in effect in the issuing jurisdiction.

For more detailed information about hate crimes, violence and harassment, see GLAD’s publication, Anti-LGBT Violence and Harassment in Massachusetts, at www.glad.org/uploads/docs/publications/Anti-LGBT-Harassment-Violence.pdf .

Criminal Sex Laws

Does Massachusetts have a sodomy law?

Although Massachusetts has had two sodomy laws on the books since before its statehood, the Supreme Judicial Court has now said (most recently in 2002) that neither law applies to private, consensual, adult conduct.⁶⁷

The first of the two laws challenged in GLAD’s case is a more “traditional” sodomy law in that it prohibits anal sex and bestiality.⁶⁸ It can be applied to anal sex between gay or non-gay people, but has often been associated in the public mind with gay men.
 
The second of the two laws challenged is also a felony which covers “unnatural and lascivious acts.”⁶⁹ The courts have ruled that this law encompasses “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body.”⁷⁰

As a result of GLAD’s case, there are no general criminal proscriptions against adults engaging in particular types of consensual, intimate activity, only a range of laws directed at prohibiting public acts of intimacy.

In a separate, similar ruling in 2003, the U.S. Supreme Court ruled that it is unconstitutional to apply sodomy laws to non-commercial sex between consenting adults in private.⁷¹

But how do I know whether the place where I am engaged in sexual intimacy is “private”?

That is the million-dollar question: what is “private”?  For the most part, what happens in the privacy of your own home should be no concern of the police. Most people arrested for sexual activity are arrested for activity occurring out of doors. The courts have ruled several times that sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands. It all depends on the circumstances.

In order for the conduct to be “public,” it must be in a place where it is reasonably foreseeable that unsuspecting members of the public will come by at the time and place in question. When the participants act in deliberate disregard of that risk, whether or not they are discovered by the police or another person, their conduct is considered “public.”  Or stated another way, if people have secreted themselves behind remote bushes or beyond fences —  a place where the individual does not know or reasonably expect the presence of persons who would be offended by the conduct —  then there should be no realistic danger to the public. The criminal sex laws are “not designed to punish persons who desire privacy and take reasonable measures to secure it.”⁷²

Why do people get arrested for sex outdoors if it can be considered “private”?

The Commonwealth has a legitimate law enforcement interest in protecting the general public from open displays of sex —  whether the sex is between people of the same-sex or of a different-sex. But socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs. No one should be arrested or hassled for foot-tapping, hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business. For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas — sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with either of the sodomy laws discussed above, or any other of a variety of sex offenses, some of which may require the person to register as a “sex offender.”

GLAD has challenged these practices by many police departments, and has sometimes helped to develop more constructive policing practices, such as with the MBTA. Due to a court case filed by GLAD, the Massachusetts State Police have issued training bulletins to all Troopers informing them of the limits of the sex laws in Massachusetts.

Does Massachusetts have any other criminal laws that are applied to gay people?

There are numerous laws addressing public sexual activity, any number of which can be charged against a person arrested for having sex in “public.” These include “open and gross lewdness and lascivious behavior,” a felony involving public exposure of the genitals⁷³, (the Massachusetts Supreme Judicial Court has established the elements the prosecution must prove beyond a reasonable doubt in order to obtain a conviction under this statute),⁷⁴ as well as “lewd and lascivious behavior,” a misdemeanor.⁷⁵  When an undercover police officer has been touched by someone, the individual can be charged with “indecent assault and battery on a person over age 14, another felony.⁷⁶  Often, both of these are charged. Sometimes, police will also charge trespass or disorderly conduct, which are both misdemeanors. Occasionally, charges will also include a violation of section 34 or 35. If you are being charged with a violation of section 34 or 35, please contact GLAD.

Does Massachusetts have a “sex offender registry” type of law?

Yes. Every state now has such a law, although the terms differ from state to state. In Massachusetts, the law has been tied up in legal challenges and has been redrafted several times. GLAD successfully challenged one version of the law because of our concerns that it denominated as sex offenders people whose only “crime” was consensual adult sex or touching an undercover police officer.⁷⁷

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children. However, a conviction for indecent assault and battery on a person over 14 is still a “sex offense” in some circumstances⁷⁸,  as is a “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior,”⁷⁹ For a full list of sex offenses, see Mass. Gen. Laws, chap. 6, sec. 178C.

What if I got a continuance without a finding? Or what if my conviction is very old?

The law only applies to people who were convicted (or “adjudicated” as a youthful offender) after August 1, 1981, or were still incarcerated, on parole or probation, or in civil commitment as of that date. So if you received a continuance without a finding, that is NOT a conviction and the law does not apply to you.

How can I find out of what charges I have been convicted?

You can contact your local police, or call the Criminal History Systems Board at (617) 660-4600 to request a form to get your criminal records. You need to fill out the form, have it notarized, and then send it back to CHSB, 200 Arlington St., Suite 2200, Chelsea, MA 02150.

What obligations are imposed on “sex offenders”?

Most sex offenders will have to register annually with the Sex Offender Registry Board and provide personal data, work information, and other identification. Depending on the circumstances, some or all of this information may be made available to the public.

Based on case law there is legal precedent supporting your right to a hearing before you are compelled to register for non-violent offenses — such as the offenses listed above. The 1999 version of the law acknowledges that the law will sweep in some people who are not dangerous and predatory sex offenders. It has set up several systems allowing for petitions or hearings to relieve such persons from the obligation of re-registering and having the information about them stricken from the system. For more information, contact an attorney.

Where can I get help if I have been convicted of a crime that qualifies me as a “sex offender”?

Because of the strict time deadlines involved in contesting the need to register at all and the classification of one’s dangerousness, get an attorney right away. Call the GLAD’s Legal InfoLine for a referral.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16. Mass. Gen. Laws, chap. 265, sec. 23. However, there is some confusion about the age of consent for anal sex and oral sex with case law questioning whether the age of consent for such acts is 18.⁸⁰

Police Harassment

I am often told by police to “move along” from public areas. Is that legal?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone, and are likely also places of public accommodation to which non-discrimination rules apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct⁸¹.

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered — whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason — should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other person.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly nor implicitly assert that the person must respond to their inquiries.⁸² Even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested.⁸³

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.⁸⁴ An arrest can only occur upon “probable cause” that a crime has been committed.⁸⁵

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers. Call GLAD if you need to find out how to make a complaint to the local police.

Complaints to the Massachusetts State Police may be made to State Police Headquarters, c/o Personnel Investigations, 470 Worcester Rd., Framingham, MA 01702. You can request a form SP 340 from any barracks. According to State Police Regulations (ADM-14, Jan. 14, 2000), a complainant shall be notified of the receipt of the complaint, and the steps to be taken, be given a status report when requested, and be notified of the final disposition of the case.  You may want to contact the Massachusetts State Police LGBT Community Liaison, Lt. Mary E. Ritchie, at 508-988-7003 before you submit your complaint.

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit — because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also register serious complaints with the Attorney General’s Office, Civil Rights Division.

Footnotes

⁵⁷ Massachusetts also has a “criminal harassment” statute, Mass. Gen. Laws, chap. 265, sec. 43A, which targets any willful and malicious pattern of conduct or series of acts directed at a specific person, seriously alarming that person, and causing any reasonable person to suffer substantial emotional distress.  It could apply to homophobic statements directed against a person.  See Com. V. Welch, 444 Mass. 80 (2005).
⁵⁸ Mass. Gen. Laws, chap. 265, sec. 39.
⁵⁹ Mass. Gen. Laws, chap. 265, sec. 37.
⁶⁰ See also Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 123-24 (1987)(section 37 applies to hate-motivated harassment and violence).
⁶¹ See Mass. Gen. Laws, chap. 22C, secs. 32-35.
⁶² Mass. Gen. Laws, chap. 22C, sec. 32.
⁶³ See generally Mass. Gen. Laws, chap. 22C, sec. 33; 501 Code of Mass. Regs. sec. 4.04(1) (Hate Crimes Reporting Classification Criteria).
⁶⁴ Mass. Gen. Laws, chap. 12, sec. 11H (actions by Attorney General); chap. 12, sec. 11I (actions by private individuals).
⁶⁵ Mass. Gen. Laws, chap. 12, sec. 11J.
⁶⁶ See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111X7TYvf:e1999565.
⁶⁷ See GLAD et al. v. Reilly et al., 436 Mass. 132 (2002).
⁶⁸ Mass. Gen. Laws, chap. 272, sec. 34 (“crime against nature”).
⁶⁹ Gen. Laws, chap. 272, sec. 35.
⁷⁰ Comm. v. Gallant, 373 Mass. 577, 585 (1977).
⁷¹ See Lawrence & v. Texas, 539 U.S. 558 (2003).
⁷² Commonwealth v. Ferguson, 384 Mass. 13 (1981),—even if a police officer finds them.  Comm. v. Nicholas, 40 Mass. App. Ct. 255, 258 (1996).
⁷³ Mass. Gen. Laws, chap. 272, sec. 16.
⁷⁴ See Commonwealth v. Kessler, 442 Mass. 770, 773 n.4 (2004).
⁷⁵ Mass. Gen. Laws, chap. 272, sec. 53.
⁷⁶ Mass. Gen. Laws, chap. 265, sec. 13H.
⁷⁷ Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007 (1997).
⁷⁸ Mass. Gen. Laws, chap. 272, sec. 13H.
⁷⁹ Mass. Gen. Laws, chap. 272, sec. 16.
⁸⁰ Comm. v. Zeitler, 7 Mass. App. Ct. 543 (1979).
⁸¹ Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950)(sauntering and loitering in public places is right of every person); Benefit v. City of Cambridge, 424 Mass. 918 (1997)(streets and other public areas are “quintessential public forums” for expression); Kent v. Dulles, 357 U.S. 116, 126 (1958).
⁸² Commonwealth v. Murdough, 428 Mass. 700 (1999).
⁸³ Murdough, 428 Mass. at 703; Alegata v. Commonwealth, 353 Mass. 287, 300-01, 231 N.E.2d 201 (1967).
⁸⁴ Murdough, 428 Mass. at 763, Terry v. Ohio, 392 U.S. 1, 16 (1968).
⁸⁵ Murdough, 428 Mass. at 703.

Questions & Answers (Accurate as of July 2, 2012)

What Massachusetts laws exist to protect LGBT students?

Chapter 76, Section 5 of the Massachusetts General Laws prohibits both sex and sexual orientation discrimination in its schools, whether committed by school employees or fellow students. 

The Code of Massachusetts Regulations (603 CMR 26.00) establishes certain actions that schools must take to prohibit the harassment or discrimination of LGBT students ( www.doe.mass.edu/lawsregs/603cmr26.html?section=01

Harassment and Discrimination at School

).  In particular, the Code requires that all schools educate staff and students about Chapter 76, Section 5 and have policies in place to ensure that complaints of discrimination and harassment are investigated and appropriate action is taken against those who violate the provisions of the law.

Also Massachusetts General Laws Chapter 151C defines fair educational practices and specifically prohibits sexual harassment by either teachers, staff or other students.  Violations of this law can be brought to the Massachusetts Commission Against Discrimination, a state agency that does not require the parties to have a lawyer.

Massachusetts’ law also protects students who are perceived to be LGBT, regardless of their actual sexual orientation.  So, for example, if the vice-principal for discipline acts to resolve the harassment complaints of girls generally, but not when the harassment is directed at a female student because she is thought to be a lesbian, the school is engaging in sexual orientation discrimination.

To strengthen the protections against student harassment and bullying, in May 2010 Massachusetts implemented one of the strongest anti-bullying laws in the country⁸⁶.  It has strict requirements that schools must follow to protect you and your peers from bullying, even where the bullying includes only words, rather than physical violence.  It also includes bullying through the use of technology.  Many of these requirements apply to all schools, whether public, private, or charter.  Some of the key provisions of the law include:

• Every school, with the exception of some private schools, must have in place a comprehensive anti-bullying policy.
• Your parents or guardians must be notified if the school learns that you have been bullied.
• Teachers and other school staff must receive training on how to handle bullying and are required to report bullying to the administration.
• Each school must teach students about bullying.

For detailed information about this law, see GLAD’s publication, Massachusetts Students: What to Do If You’re Being Bullied, at www.glad.org/uploads/docs/publications/ma-students-what-to-do-bullied.pdf .

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

Possibly. Massachusetts state law allows victims of sexual harassment in nearly all schools, colleges and universities that accept students from the public generally⁸⁷ to file complaints at the MCAD.⁸⁸  Under federal law, public schools which receive federal funds may not discriminate on the basis of sex. Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX. Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston. A student’s constitutional rights may be violated by some kinds of discrimination and harassment.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing. Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

At the same time, or after contacting the administration as set out above, you may want to file a complaint with the Problem Resolution System of the Mass. Dept. of Elementary and Secondary Education at (781) 338-3700. They will investigate and examine whether or not the school should consider taking further actions.

If this fails, you may also wish to consider legal action against the town. Mass. Gen. Laws, chap. 76, sec. 16. Contact GLAD for attorney referrals.

Where else can I get support if I’m having a problem?

In addition to the resources listed above, you may wish to contact the Commission on Gay and Lesbian Youth, (617) 624-5485; or the Violence Recovery Program, (800) 834-3242.

Gay/Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

In all likelihood, yes. According to the Mass. Dept. of Elementary and Secondary Education, the non-discrimination law (chap. 76, sec. 5) means that school administrators must respond consistently to all requests for the formation and funding of extra-curricular clubs, even if they don’t agree personally with the content or think the community isn’t ready for it.

In addition, a federal law known as the “Equal Access Act” provides that secondary school students in schools that receive federal funding and have at least one extra-curricular group must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. GLAD brought and won a case for students at West High in Manchester, New Hampshire on this very basis.

Commission on Gay and Lesbian Youth

The Commission on GLBT Youth began in 1992 when Governor William F. Weld created the Governor’s Commission on Gay and Lesbian Youth in response to an epidemic of suicide among gay and lesbian youth. On October 7th, 1998, Governor A. Paul Cellucci expanded the powers of the Governor’s Commission and renewed the executive office’s commitment to combat suicide and violence affecting gay and lesbian youth. Under the Romney administration much of the effectiveness of the Commission was stripped away.

The Governor’s Commission was dissolved in 2006, and the General Court created the Massachusetts Commission on Gay and Lesbian Youth that same year.⁸⁹ This Commission is an independent agency of the Commonwealth and has a mandate to investigate the use of resources from both the public and private sectors to enhance and improve the ability of state agencies to provide services that protect and support the health and safety of Gay, Lesbian, Bisexual and Transgender (GLBT) youth in the schools and communities of Massachusetts, with a focus on suicide prevention, violence intervention, and the promotion of zero-tolerance policies regarding harassment and discrimination against GLBT youth. The Commission is also mandated to make recommendations about policies and programs supporting GLBT youth to the State government and its agencies, and to ask for adequate funding in the annual State budget for effective programs.

For more information call (617) 624-5485 or view their website at www.mass.gov/cgly/

For further information see GLAD’s publication, Massachusetts Rights of LGBT Public School Students, at www.glad.org/uploads/docs/publications/ma-rights-of-lgbt-students.pdf

Footnotes

⁸⁶ Chapter 92 of the Acts of 2010.  See http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92.
⁸⁷ See Horton and Andrade v. Blaine the Beauty Career School & Supplies, 29 M.D.L.R. 28 (2007) (cosmetology school held liable for sexual harassment against two students perceived to be gay lovers under Mass. Gen. Laws, chap. 151C).
⁸⁸ Mass. Gen. Laws, chap. 151C.
⁸⁹ Mass. Gen. Laws, chap. 3, sec.67.

Questions & Answers (Accurate as of November 3, 2011)

Informed Consent

What laws in Massachusetts govern informed consent for HIV testing?

Massachusetts law¹² provides that a physician, health care provider, or health care facility may not do any of the following without first obtaining a person’s written informed consent:

• Test a person for HIV;
• Reveal to third parties that a person took an HIV test; or
• Disclose to third parties the results of a person’s HIV test.

It is important to keep in mind that this law only prohibits the disclosure of HIV status by health care providers.

A competent adult has the right to decide whether he or she wishes to undergo any medical treatment or testing. Without informed consent, the provision of medical treatment is considered to be a “battery,” a legal claim based upon nonconsensual physical contact with or intrusion upon a person’s body.

What type of consent is considered sufficient?

Consent to an HIV test must be written, not oral, and must be HIV-specific, not general.

Written informed consent means that a person must sign a specific release authorizing the health care provider to test for HIV and/or disclose the results of an HIV test.

A general release to a health care provider authorizing the disclosure of medical records and information is insufficient. The release must specifically authorize the disclosure of HIV test results and must state the purpose for which the information is being requested.

What are the possible penalties for health care providers that do not obtain written informed consent?

A health care provider or facility that tests for HIV or discloses an HIV test result without written informed consent violates a Massachusetts law¹³ that protects consumers from unfair and deceptive trade practices. Under this law, a person may receive compensatory damages for harm such as emotional distress, attorneys’ fees and, under certain circumstances, multiple damages—damages up to three times the amount of a person’s actual damages. A physician may also be liable for medical malpractice or battery.

Minors and Informed Consent

Can minors give informed consent?

Under Massachusetts law, minors (persons under the age of 18) are generally considered to lack the legal capacity to consent to medical treatment. However, given the importance of making HIV testing available to adolescents, there are two sources of law that authorize a minor to consent to medical treatment or testing, such as an HIV test, without the consent of a parent or legal guardian.

Both lawmakers and the courts have acknowledged the importance of minors being able to make independent decisions about their health care in certain circumstances.

What laws govern minors and informed consent?

Massachusetts law¹⁴ provides that a minor may give consent to medical or dental care if he or she is:

• Married, widowed or divorced;
• A parent of a child;
• A member of the armed forces;
• Pregnant or believes herself to be pregnant;
• Living separate and apart from his parents or legal guardian and is managing his own financial affairs; or
• “Reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health [by the Department of Public Health] pursuant to Chapter 111.”  The list of such diseases includes HIV. The minor may only consent to care relating to the diagnosis or treatment of that disease.

A physician or dentist is not liable for performing a procedure without informed consent if the physician relied in good faith on the patient’s statement that he or she is over 18 years of age.

Medical or dental records and other information about a minor who consents to treatment are confidential and may not be released except with the consent of the minor or upon a judicial order. The statute, however, creates an exception to the confidentiality of a minor’s medical information when the physician or dentist “reasonably believes” that the minor’s condition is “so serious that his life or limb is endangered.” In this case, the physician or dentist must notify the parents or legal guardian of the minor’s condition.

What do the courts say about minors and informed consent?

In addition to the provisions of Chapter 112, Section 12F, courts have held that minors can provide informed consent for medical treatment if they are sufficiently intelligent and mature to understand the risks and benefits of treatment, regardless of financial independence or living situation. This is known as the “mature minor” rule.

Courts will typically assess the minor’s age, experience, education, training, judgment, conduct and demeanor to assess whether under a particular circumstance the minor has the ability to appreciate the nature and consequences of treatment.

Courts will give particular weight to how close the person is to majority (18 years of age), the benefits of the treatment or test (which are significant in the case of an HIV antibody test), and the complexity of the treatment or test.

Does Massachusetts have reporting laws that require HIV or AIDS diagnoses to be reported to the Department of Public Health?

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Massachusetts requires that licensed health care providers and health care facilities licensed by the Department of Public Health report HIV and AIDS cases by name to the Massachusetts HIV/AIDS Surveillance Program. AIDS cases have been reportable by name since 1983. In 1999 HIV cases became reportable using a unique identifier code. Due to funding conditions by the federal government, however, Massachusetts was forced to require HIV reporting by name beginning January 1, 2007.

The Department of Public Health has strong security measures in place to prevent dissemination of HIV/AIDS reporting data. In addition, state regulations prohibit names from being shared with anyone else, including state or federal government entities.¹⁵

Privacy

What laws in Massachusetts protect the privacy of medical information, such as HIV?

As noted above, the HIV testing statute prohibits a health care provider from disclosing to a third party the results of an HIV test without written informed consent. A more general Massachusetts privacy law applies in other contexts.

Massachusetts law¹⁶ provides:

A person shall have a right against unreasonable, substantial or serious interference with his privacy.

How do courts determine whether there has been a violation of this general privacy law?

As an initial matter, in order to be protected by this law, a person must have a “privacy right” in particular information. Courts have ruled that a person has a privacy right in HIV infection status because:

1. HIV is personal medical information; and
2. HIV is associated with significant social stigma and discrimination.

Simply having a “privacy right” in certain personal information, however, does not mean that every disclosure is a violation of the law.

In analyzing whether there has been a violation of the statute, courts will determine whether there is any legitimate countervailing reason for the disclosure. In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why a disclosure was necessary in spite of the infringement upon privacy.

For example, if an employee reveals his or her HIV status to a supervisor, the supervisor may only reveal that information to others for a necessary business reason. It may be considered a legitimate business reason to discuss the employee’s HIV status with other management personnel in connection with making adjustments to a person’s job duties as a reasonable accommodation. It would not, however, be a legitimate business reason to tell the employee’s co-workers or non-essential management personnel.

If a day care center or school revealed the identity of a child or student with AIDS to parents or other students, there is a good argument that such conduct violates Massachusetts law. There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.

Does a person with HIV have a constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor — e.g., police, prison officials, doctors at a state hospital.

Similar to the Massachusetts privacy statute¹⁷, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reason for a policy or practice that results in disclosure.

Do health care professionals ever have an obligation to warn a third party about a client’s HIV status?

It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law, even if a counselor or physician learns that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner. Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved. For a legal opinion on how to handle a specific situation, consult with a supervisor or lawyer.

Do provisions under Massachusetts law that permit health care providers, under certain limited circumstances, to warn third parties of potential harm apply to HIV status?

It is the AIDS Law Project’s position that these provisions should not be understood to apply to HIV.

Take, for example, the Massachusetts statute that permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances.¹⁸ Under certain circumstances, Massachusetts law provides that a social worker may, but is not legally mandated to, disclose confidential communications, including situations when:

• The client has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims with the apparent intent and ability to carry out the threat;
• The client has a history of physical violence that is known to the social worker and the social worker has a reasonable basis to believe a client will kill or inflict serious bodily injury on a reasonably identifiable victim.

There are virtually identical statutes for licensed psychologists¹⁹ and licensed mental health professionals²⁰.

And, with respect to physicians, the Massachusetts Supreme Judicial Court stated in Alberts v. Devine in 1985, that physicians owe patients a legal duty not to disclose confidential patient medical information without the patient’s consent, “except to meet a serious danger to the patient or others.”  The Court did not, and has not since then, articulated the meaning and scope of the words “serious danger.”

Neither of these provisions provides clear legal justification to breach the confidentiality of a client’s HIV status, in light of the specific Massachusetts statute prohibiting the involuntary disclosure of HIV status by a health care provider.

No court has ever interpreted the relationship between the HIV confidentiality statute and other general provisions permitting disclosure of patient information under limited circumstances by doctors or mental health providers. Therefore, providers who involuntarily disclose a client’s HIV status risk liability for invasion of privacy.

However, because this is an evolving area of law, it is crucial to consult an attorney with questions about specific situations.

Footnotes

¹² M.G.L. c. 111, § 70F
¹³ M.G.L. c.  93A
¹⁴ M.G.L. c. 112, § 12F
¹⁵ For more information, see HIV Reporting in Massachusetts for Consumers available at http://www.mass.gov in th,e Diseases & Conditions section under Physical Health and Treatment.
¹⁶ M.G.L. c. 214, § 1B
¹⁷ M.G.L. c. 214, § 1B
¹⁸ M.G.L. c. 112, § 135A
¹⁹ M.G.L. c. 112, § 129A
²⁰ M.G.L. c. 123, § 36B

Questions & Answers (Accurate as of November 3, 2011)

Discrimination Based on HIV Status

Does Massachusetts have laws protecting people with HIV from discrimination?

Yes. Massachusetts has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

Who is protected under these anti-discrimination laws?

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who have a record of or who are regarded or perceived as having HIV.
• Under federal law, but not Massachusetts law, a person who does not have HIV, but who “associates” with a person with HIV — such as a friend, lover, spouse, roommate, business associate, advocate or caregiver.

Employment

ADVERSE TREATMENT

What laws protect people with HIV from discrimination in employment?

People with HIV are protected under Massachusetts General Law Chapter 151B and the federal Americans with Disabilities Act (ADA). Both of these statutes prohibit discrimination in employment on the basis of a person’s disability. Massachusetts law covers workplaces with six or more employees. The ADA covers workplaces with 15 or more employees.

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

People with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact GLAD’s Legal Infoline in order to strategize about ways to respond to such requests.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e. significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, including:

• The employer’s size, budget and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business;

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

Can an employer in Massachusetts ever require an applicant or employee to take an HIV test?

No. Massachusetts law¹ prohibits an employer from requiring that an employee take an HIV test under any circumstances at any stage of the application or employment process.

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and Massachusetts law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• Have you ever had any medical problems that would make it difficult for you to do your job?
• What medications do you take?

An employer may, however, ask whether an applicant has the knowledge, skill and ability to perform the job functions.

After an offer of employment, can an employer require a medical exam? What guidelines apply?

Under the ADA, after a conditional offer of employment, an employer may request a medical examination or any medical information, without limitation. However, the ADA does require the employer to follow certain practices:

• The employer must require the medical exam or inquiry of all applicants in the job category.
• The information must be kept strictly confidential. It must be on separate forms and kept in a segregated file apart from a general personnel file.
• The information may not be shared with others, with a limited exception for supervisors or managers who need to be informed of necessary job restrictions or accommodations, or safety personnel who may be told if the person with a disability requires emergency treatment.
• The results of the medical examination cannot be used to withdraw the job offer unless the results indicate that the individual is not able to perform the essential functions of the job with reasonable accommodation.

After employment has begun, an employer may only require a medical exam of a current employee if it is “job-related and consistent with business necessity.” The employer must demonstrate that the medical examination is necessary to measure the employee’s actual performance of job functions.

Of course, as noted above, employers in Massachusetts are prohibited from requesting an HIV test at any time.

In general, Massachusetts law limits employer health inquiries more strictly than federal law. Under Massachusetts law, after a conditional offer of employment, an employer may only require a medical examination for the purpose of determining whether the employee is capable of performing the essential functions of the job with reasonable accommodation.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

In the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”²

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:
   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in the supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Public Accommodations

Do Massachusetts laws protect against discrimination by health care providers, businesses, and other public places?

Yes. Under both Massachusetts laws³ and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 1973⁴ prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices, as long as these facilities are generally open to the public.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, persons with HIV are still faced with discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments are made by doctors who discriminate against people with HIV and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Massachusetts law.

How have courts and medical experts responded to these arguments?

1. “Treating People with HIV is Dangerous” Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions. For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.⁵ In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise” In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider. In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care. The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA⁷, and similar provisions of Massachusetts law, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may be an ADA violation to even use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does Massachusetts law compare with the ADA?

Massachusetts law will be interpreted in a similar manner to the ADA.

Housing

What Massachusetts laws prohibit discrimination in housing?

It is illegal under both Massachusetts law⁸ and the federal National Fair Housing Amendments of 1989 to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

Are there any exceptions to these laws?

Yes. Massachusetts law exempts owner-occupied two-unit housing. In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.

Remedies for Discrimination

PURSUING A COMPLAINT UNDER MASSACHUSETTS LAW

How do I file a complaint of discrimination?

You may file in person or in writing at the Massachusetts Commission Against Discrimination. The MCAD prefers for people to file in person, unless an attorney has prepared the complaint for them. Call in advance to set up an appointment and find out what you need to bring.

• Boston: (617) 994-6000, One Ashburton Place, Room 601.
• Springfield: (413) 739-2145.
• Worcester: (508) 799-8010.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the MCAD process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination must be filed at the MCAD within 300 days of the last discriminatory act or acts. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the MCAD?

The MCAD assigns an investigator to look into your case. The parties may engage in limited “discovery” — a legal process which allows the other side to examine the basis of your claim and allows you to examine their justifications and defenses. This is conducted through written questions (interrogatories), requests for documents, and depositions. Ultimately, if the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found in an employment, credit, services, or public accommodations case, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further with more discovery and possibly a trial type hearing.

Even before probable cause is determined in a housing case, the MCAD may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending. Once probable cause is found, the respondent must be notified of its right to have its case heard in court rather than at the MCAD.⁹

If probable cause is found lacking, the case is over unless you appeal the “lack of probable cause” finding. There are special rules and time constraints on appeals within the MCAD that must be observed strictly.

What are the legal remedies the MCAD may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, backpay, restoration in a labor organization, and front pay. In housing cases, remedies may include damages (expenses actually incurred because of unlawful action related to moving, storage, obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may also order civil fines to be paid to the state. In all cases, the remedies may also include emotional distress damages, attorneys’ fees, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person to apply for credit on non-discriminatory terms, allowing person non-discriminatory access to and use of services).

Are there other agencies at which I can file a complaint for discrimination?

Possibly yes depending on the facts of your particular situation. This outline concerns only Massachusetts non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of their fair representation.
2. Local Agencies: Several cities and towns have their own local non-discrimination laws and agencies with which you can file a complaint in addition to filing at the MCAD. Sometimes the MCAD allows the local agency to investigate the case instead of the MCAD, which might produce advantages in time and accessibility of staff. Cambridge and Boston have the most developed local agencies, although Newton, Somerville, Worcester and Springfield also have some staff for certain kinds of complaints. Even if you file with the local agency, you must still file with the MCAD within 300 days of the last act of discrimination in order for your case to be processed at all.
3. State court: After filing with the MCAD, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. ¹⁰ In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who participate in proceedings, oppose unlawful conduct, or state an objection to discriminatory conduct. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.¹¹

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD’s Legal InfoLine at 800- 455- GLAD (4523) any weekday between 1:30 and 4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am gay or lesbian and HIV positive?

Yes. The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation, race, color, religious creed, national origin, sex, ancestry, age, disability or membership in a uniformed military service of the U.S., including the National Guard. In housing, the criteria are expanded to include marital status, or because the person is a veteran. In public accommodations, marital status and age are not included among the law’s protections.

Pursuing a Claim Under Federal Law

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. However, an employee filing a disability case with MCAD does not have to file a separate claim with the EEOC. There is a check-off on the MCAD complaint form to have the MCAD file the claim with the EEOC. The EEOC will then defer to the MCAD’s investigation. If a person initially institutes his or her complaint with the MCAD, the time limit for filing a Federal complaint is extended to the earlier of 300 days or 30 days after the MCAD has terminated the case. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding. To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

Footnotes

¹ M.G.L. c. 111, § 70F
² Doe v. University of Maryland Medical System Corporation, 50 F. 3d 1261 (4th Cir. Md) (1995).
³ M.G.L. c. 272, § 98
⁴ 29 U.S.C.A. § 794
⁵ 524 U.S. 624 (1998)
⁶ 898 F. Supp. 1157 (E.D. La 1995)
⁷ 42 U.S.C. §§ 12181-12188
⁸ M.G.L. c. 151B
⁹ Mass. Gen. Laws, chap. 151B, sec. 5.
¹⁰ See e.g., Mass. Gen. Laws, chap. 151B, sec. 9.
¹¹ Mass. Gen. Laws, chap. 151B, secs. 4(4), 4A.  See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man).

Questions & Answers (Accurate as of November 3, 2011)

Needle Exchange and Syringe Access

Am I able to purchase syringes at a pharmacy without a prescription?

Yes. In 2006, Massachusetts passed a law allowing for pharmacies to sell syringes over the counter to anyone who is 18 years of age or older and decriminalizing possession of needles.²¹

Does Massachusetts have needle exchange programs?

Yes. Massachusetts law permits the Department of Public Health to establish needle exchange programs, but unfortunately requires “local approval” for the siting of a program.²² To date, only Boston, Cambridge, Northampton, and Provincetown have needle exchange programs.

Footnotes

²¹ M. G. L. c. 94c §27-27A
²² M. G. L. c.111 §215

Questions & Answers (Accurate as of November 3, 2011)

Needle Exchange Programs

Does Rhode Island laws provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes, under Rhode Island law, a pharmacy may sell hypodermic needles and syringes.  Possession of a hypodermic needle is no longer illegal in Rhode Island.⁷⁸

Rhode Island law also mandates that the Department of Health maintain a program of needle and syringe exchange for persons 18 and older in order to prevent the transmission of HIV among intravenous drug users.  Any site used in the program shall make available educational materials, HIV counseling and testing, and referral services regarding HIV transmission and drug abuse prevention and treatment.⁷⁹

Footnotes

⁷⁸ RI ST 21-28-4.04
⁷⁹ RI ST 23-11-19

Questions & Answers (Accurate as of November 3, 2011)

HIV Testing

INFORMED CONSENT

Does Rhode Island have a law governing informed consent for HIV testing?

Yes, while Rhode Island recently eliminated the requirement of written informed consent, Rhode Island prohibits the administration of any HIV test without: (1) providing the person with oral or written information and an opportunity for discussion with a health care provider, (2) informing the person of the right to decline testing, and (3) obtaining the oral consent⁴³ of the person.  The consent and exchange of information must be documented in the person’s medical record.⁴⁴  (Note: A distinction is made between confidential and anonymous testing.  In confidential testing the health care provider may use written consent as an option, but in anonymous testing only oral consent is allowed).⁴⁵

What information must the person receive?

Under RI ST 23-6.3-3(h)(4), the information given to the patient must, at a minimum, include the following:

1. An explanation of HIV infection;
2. A description of interventions to reduce HIV transmission, including safe-sex practices;
3. What a positive and negative test result mean;
4. The possibility that a recent infection may not be detected;
5. An opportunity to ask questions and to decline being tested.

Physicians and other health care providers are required to offer HIV testing to any person “with a suspected sexually transmitted disease.”⁴⁶

MINORS AND INFORMED CONSENT

Can a physician test a minor for HIV without consent of a parent or guardian?

Yes, in Rhode Island, persons under 18 may give legal consent for testing, examination, and/or treatment for any reportable communicable disease, which under Rhode Island Department of Health guidelines includes HIV and AIDS.⁴⁷

TESTING OF PREGNANT WOMEN

Rhode Island law provides that a physician or health care provider shall include HIV testing among the routine prenatal tests for all pregnant women unless testing is declined.⁴⁸  In order to be tested for HIV, pregnant women must provide oral consent which must be documented in the medical record.  If a pregnant woman has not been tested for HIV, she will be offered testing again at the time of labor and/or delivery.⁴⁹  If the mother refuses all these offers for testing and if the mother also refuses to consent to the testing of the newborn, then the newborn can be tested without the mother’s consent.⁵⁰  If the child’s HIV test is positive, then the mother will be told that she is also infected with HIV.

LIFE INSURANCE EXEMPTION

A person applying for a life insurance policy can be required to undergo HIV testing provided written consent is obtained, and the results of the test can be used by the insurance company for making decisions about whether to issue a life insurance policy.  However, once someone has a life insurance policy, HIV status cannot be used to cancel or refuse to renew the policy.⁵¹

HIV TESTING WITHOUT CONSENT

Are there circumstances under which Rhode Island law permits HIV testing, even against a person’s wishes?

Yes, under certain circumstances, enumerated in RI ST 23-6.3-4, Rhode Island law permits, but does not require, a physician or other health care provider to perform an HIV test without the consent of the subject.

PERMITTED BUT NOT REQUIRED

1. Youth
Rhode Island law permits the involuntary HIV testing of:
• Any person under one year of age;
• Any person between one and thirteen years of age who “appears to be symptomatic for HIV”;
• Any person under the age of eighteen who is “under the care and authority of the department of children, youth, and families, and the director of that department certifies that an HIV test is necessary to secure health or human services for that person.”

2. Occupational Exposure in a Health Care Facility
   Rhode Island law permits involuntary testing in the event of an exposure to a health care provider in a licensed health care facility or private physician’s office, if:

   • a sample of the patient’s blood is available and an occupational health representative or physician, nurse practitioner, physician assistant, or nurse-midwife not directly involved in the exposure determines that a health care worker had a significant exposure to the blood or bodily fluids of a patient; and
   • the patient refuses to grant consent for an HIV test.  The health care worker must have a baseline HIV test within seventy-two hours of exposure before the patient’s blood can be tested.

   If a sample of the patient’s blood is not available and the patient refuses to consent to an HIV test, the health care worker may petition the Superior Court for an order mandating an HIV test.

3. Emergency
   An involuntary HIV test is permitted “in an emergency, where due to a grave medical or psychiatric condition, it is impossible to obtain consent from either the patient, or the patient’s parent, guardian, or agent.”  This exception appears by its language to be limited to circumstances in which an HIV test is deemed necessary for the patient’s health.⁵²

REQUIRED TESTING

Rhode Island law requires

mandatory

HIV testing under certain circumstances:

1. Rhode Island law requires an HIV test for any person convicted of:
• Possession of any controlled substance that has been administered with a hypodermic needle or syringe;⁵³
• “Violation of any provisions” of the prostitution and lewdness statute;⁵⁴ and
• Committing “any sexual offense involving sexual penetration,” where “the victim, immediate family members of the victim, or legal guardian of the victim” has petitioned the court to order testing.⁵⁵
2. Rhode Island law requires mandatory testing of “[e]very person who is committed to the adult correctional institutions to answer for any criminal offense, after conviction,” as well as “periodic testing for HIV, including testing at the time of release and when deemed appropriate by a physician.”⁵⁶
3. Rhode Island law requires HIV testing of donated or collected sperm.⁵⁷

RESULTS OF HIV TESTING

All persons who are tested must be informed of their test results.⁵⁸  A positive test result must be communicated in person and the person must be given referrals to HIV-related counseling, health care and support and given priority for state-supported programs, such as substance abuse programs.⁵⁹  All positive results must be confirmed by using a second FDA approved test.⁶⁰

PRIVACY

CONFIDENTIALITY OF HIV TEST RESULTS

What laws in Rhode Island protect the privacy of medical information, such as HIV?

In Rhode Island, there are multiple laws that protect the privacy of medical information such as HIV. For example, under the HIV-Specific Privacy Law, it is “unlawful for any person to disclose to a third party the results of an individual’s HIV test without the prior written consent of that individual,”⁶¹ except for certain exemptions that are listed below.  Other laws that protect privacy of medical information in various circumstances are discussed below.

What law protects the confidentiality of HIV test results that are recorded in patient files?

Rhode Island law also has a specific provision for protecting records of HIV test results, which states that: “Providers of health care, public health officials, and any other person who maintains records containing information on HIV test results of individuals are responsible for maintaining full confidentiality of this data and shall take appropriate steps for their protection.”⁶²

These steps include:

• Keeping records secure at all times and establishing adequate confidentiality safeguards for any such records electronically stored;
• Establishing and enforcing reasonable rules limiting access to these records; and
• Training persons who handle records in security objectives and techniques.⁶³

Are there additional statutes that can protect the confidentially of a person’s HIV positive test result?

Yes, Rhode Island law expressly prohibits the nonconsensual disclosure of confidential health care information, which is described as “all information relating to a patient’s health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient.” This law is referred to as the Confidentiality of Health Care Communications and Information Act.”⁶⁴

Under this act, “confidential health care information” cannot be released or transferred without a written consent form containing clear information regarding the proposed uses of the information and the extent of information to be released.⁶⁵

EXCEPTIONS TO THE RHODE ISLAND PRIVACY STATUTES

Are there circumstances under which Rhode Island law permits the disclosure of HIV status without written informed consent?

Yes, Rhode Island law provides for disclosure of HIV status under specifically prescribed circumstances.⁶⁶

1. A physician may without the consent of the patient:
• ”[E]nter HIV test results in the patient’s medical record.”
• Release confidential medical information, including a patient’s HIV status, pursuant to the exceptions listed in the Confidentiality of Health Care Communications and Information Act⁶⁷ and the Mental Health Law.⁶⁸
• Notify the director of the department of children, youth, and families (DCYF) of the results of an involuntary test.⁶⁹
• “Inform third parties with whom an HIV-infected patient is in close and continuous exposure-related contact, including but not limited to a spouse and/or partner, if the nature of the contact, in the physician’s opinion, poses a clear and present danger of HIV transmission to the third party; and if the physician has reason to believe that the patient, despite the physician’s strong encouragement, has not and will not inform the third party that they may have been exposed to HIV.”⁷⁰
2. Under RI ST 23-5-9, when a person dies with certain enumerated health conditions, including AIDS, a physician or family member (if the person did not die in a health care facility) must notify the person picking up the body that the person died of AIDS. The person picking up the dead body must convey that notification to any embalmer or funeral director.⁷¹
3. If a first responder (e.g., firefighter, police officer, EMT) treating or transporting a person to a licensed facility is exposed to the blood of a person subsequently diagnosed with an infectious disease, and the exposure is sufficient to create a risk of transmission, the facility shall issue notification of exposure.⁷²

REMEDIES

How can violations of the HIV privacy statutes be addressed?

Under Rhode Island law, a civil suit can be filed for damages⁷³⁷⁴, as well as attorney’s fees, for violations of the HIV test result statute or the Confidentiality of Health Care Information Act. An intentional and knowing violation of these statutes may also result in criminal prosecution.⁷⁵

CONSTITUTIONAL RIGHT TO PRIVACY

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information. 

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

STATE HIV REPORTING REQUIREMENTS

Does Rhode Island have reporting laws that require positive HIV test or AIDS results to be reported to the Rhode Island Department of Health?

All states require that numerous health conditions be reported to state health officials in order to assess trends in the epidemiology of diseases and develop effective prevention strategies. Rhode Island law requires that physicians, health care providers, health care facilities and prisons report the names of persons diagnosed with HIV or AIDS (except in the case of anonymous testing) to the Department of Health,⁷⁶ including those perinatally exposed to HIV as indicated by two positive PCR tests.⁷⁷

All information in connection with HIV or AIDS cases is subject to strong confidentiality provisions under Rhode Island law.

Footnotes

⁴³Prior to the passage of House Bill 5415 Substitute B in November 2009, Rhode Island had required written consent for HIV testing.
⁴⁴RI ST 23-6.3 (h) (2)
⁴⁵RI ST 23-6.3 (k)
⁴⁶RI ST 23-11-17
⁴⁷RI ST 23-8-1.1
⁴⁸RI ST 23-6.3-3 (i) (1)
⁴⁹RI ST 23-6.3-3 (i) (2)
⁵⁰RI ST 23-6.3-3 (i) (3)
⁵¹RI ST 23-6.3-16
⁵²RI ST 21-6-14 (6)
⁵³RI ST 21-28-4.20
⁵⁴RI ST 11-34-10
⁵⁵RI ST 11-37-17
⁵⁶RI ST 42-56-37 & RI ST 23-6.3-4(a)(11)
⁵⁷RI ST 23-1-38
⁵⁸RI ST 23-6.3-3 (g)
⁵⁹RI ST 23-6.3-3 (e) & (f)
⁶⁰RI ST 23-6.3-14 (d)
⁶¹RI ST 23-6.3-4 (b) (emphasis added)
⁶²RI ST 23-6.3-8
⁶³RI ST 23-6.3-8
⁶⁴RI ST 5-37.3-3 (3) (i); RI ST 5-37.3-4 (a) 
⁶⁵RI ST 5-37.3-4 (d)
⁶⁶RI ST 23-6.3-7
⁶⁷RI ST 5-37.3-4 (b)
⁶⁸RI ST 40.1-5-26 (b)
⁶⁹RI ST 23-6.3-7 (a) (3)
⁷⁰RI ST 23-6.3-10 (b)
⁷¹RI ST 23-5-9
⁷²RI ST 23-28.36-3
⁷³RI ST 5-37.3-9
⁷⁴RI ST 23-6.3-8 (e)
⁷⁵RI ST 5-37.3-9
⁷⁶RI ST 23-6.3-14
⁷⁷RI ST 23-6.3-14 (4)

Questions & Answers (Accurate as of November 3, 2011)

Discrimination Based on HIV Status

Does Rhode Island have laws protecting people with HIV from discrimination?

Yes, Rhode Island has enacted two separate laws that prohibit discrimination against people with HIV or AIDS. First, Rhode Island has an anti-discrimination law that explicitly relates to HIV. This law provides that “[n]o person, agency, organization, or legal entity may discriminate against an individual on the basis of a positive HIV test result, or perception of a positive test, in housing, education, employment, the granting of credit, public accommodation, or delivery of services. . .”¹  Second, people with HIV are protected under laws that prohibit discrimination on the basis of disability. This includes the federal Americans with Disabilities Act (ADA),²  and analogous Rhode Island disability & antidiscrimination laws.

Disability antidiscrimination laws protect people with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness. They also protect people who are regarded or perceived as having HIV.

Under the ADA, but not Rhode Island law, these laws also prohibit discrimination against a person who does not have HIV, but who “associates” with a person with HIV — such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.

Employment

ADVERSE TREATMENT

Rhode Island’s HIV-specific antidiscrimination law³ as well as the ADA⁴ and Rhode Island’s disability antidiscrimination law⁵  protect people with HIV from discrimination in employment. Rhode Island’s explicit HIV antidiscrimination law covers all employers regardless of size. The ADA covers employers with fifteen or more employees while Rhode Island’s disability antidiscrimination law covers employers with four or more employees.⁶

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

How may a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget, and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis. An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

Can an employer in Rhode Island ever require an applicant or employee to take an HIV test?

Under Rhode Island law, an HIV test shall not be required as a condition of employment.⁷

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and Rhode Island law⁸, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?
• An employer may, however, ask whether an applicant has the knowledge, skill and ability to perform the job functions.

After an offer of employment, can an employer require a medical exam? What guidelines apply?

After a conditional offer of employment, an employer may require a physical examination or medical history solely for the purpose of determining if an employee can perform the essential job functions with reasonable accommodation. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation. Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”⁹

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem:

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:

   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Discrimination in Places of Public Accommodation

Do Rhode Island’s laws protect against discrimination by health care providers, businesses, and other public places?

Yes, under Rhode Island’s HIV-specific antidiscrimination statute¹⁰, Rhode Island’s disability antidiscrimination law,¹¹ as well as the ADA,¹² it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place.  Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Rhode Island law.

How have courts and medical experts responded to these arguments?

Courts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous.” Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions. For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott¹³ that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission. In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise” In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider. In United States v. Morvant¹⁴ a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care. The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions that tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does Rhode Island law compare with the ADA?

Rhode Island law will be interpreted in a similar manner to the ADA.

Housing Discrimination

What laws prohibit discrimination in housing?

It is illegal under Rhode Island’s HIV-specific antidiscrimination law,¹⁵ Rhode Island’s disability antidiscrimination law,¹⁶  as well as the National Fair Housing Amendments of 1989,¹⁷  to discriminate in the sale or rental of housing on the basis of HIV status.  A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

Are there any exceptions to the laws introduced above?

There are no exceptions to housing discrimination on the basis of HIV status under Rhode Island’s HIV-specific law.¹⁸ Rhode Island’s disability antidiscrimination law exempts residences where there are three or fewer apartments and the owner occupies one of the units.¹⁹  In addition, the federal Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.²⁰ 

Discrimination in Credit and Education

What laws prohibit discrimination in credit?

It is illegal under Rhode Island’s HIV-specific antidiscrimination law²¹ and Rhode Island’s disability antidiscrimination law²² to discriminate on the basis of HIV status in the granting of any form of credit or loan. 

Under the National Fair Housing Amendments of 1989,²³ it is illegal to discriminate on the basis of HIV status in the financing of housing.

What laws prohibit discrimination in education?

It is illegal under Rhode Island’s HIV-specific antidiscrimination law²⁴ and Section 504 of the federal Rehabilitation Act of 1973²⁵ to discriminate on the basis of HIV status in public school programs or activities.

Remedies for Discrimination

RHODE ISLAND LAW

How do I file a complaint of discrimination?

You may file in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903.  If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring.  Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY).

The complaint must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”).  The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No, but GLAD strongly encourages people to find lawyers to represent them throughout the process.  Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the RICHR within one year of the discriminatory act or acts.²⁶ There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once? For example, can I file multiple complaints if I believe I was fired both because I am HIV positive and gay?

Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic.  The state anti-discrimination laws for employment forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex, disability, age, or country of ancestral origin.²⁷ 

In housing, the criteria are expanded to include marital status, familial status, and whether any member of the household has been a victim of domestic violence.²⁸ 

In places of public accommodation, the other protected characteristics are race, color, religion, country of ancestral origin, disability, age, sex, but not marital or familial status.²⁹

What happens after a complaint is filed with the RICHR?

The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case.  If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR sends for “conciliation” or settlement proceedings in which the offender agrees to cease its unlawful practices and the complainant may be given an additional remedy.³⁰

If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent.  This process involves a trial type hearing but is not as formal as an actual trial in court.  This process must be commenced within 2 years of when the complainant first filed his or her complaint with the RICHR.³¹

After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court.³²

There are a few times when the case can be taken from the RICHR and filed in court.  For example:

• Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR.  That request should be granted, and the complainant then has 90 days from when he or she receives a “right to sue” letter to file the case in Superior Court.³³
• After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules.³⁴
• In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending.³⁵

If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding.  There are special rules and time constraints on this process which must be observed strictly.³⁶

What are the legal remedies the RICHR may award for discrimination if an individual wins his or her case there?

In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws.³⁷

In addition, in employment cases, a successful complaint may be entitled to a remedy involving hiring, reinstatement or upgrading of employment, back pay, and admission or restoration to union membership.³⁸  If the adverse job action was taken against the individual for a variety of reasons, and sexual orientation or gender identity or expression was not the sole motivating factor, the RICHR may limit the damages awarded. 

In housing cases, the RICHR is also empowered to impose civil fines, with increasing severity depending on whether the offender has committed other discriminatory acts in the past.³⁹

When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others.⁴⁰ The only exception is that punitive damages may not be awarded against the State. 

Are there other agencies at which I can file a complaint for discrimination?

You may be able to file complaints at other agencies depending on the facts of your particular situation.  This outline concerns only Rhode Island anti-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Obtain and read a copy of your contract and contact a union steward about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. State Court: After filing with the RICHR, a person may decide to remove his or her discrimination case from those agencies and file the case in court.  There are rules about when and how this must be done.  An individual can request a right to sue letter from RICHR after a complaint has been pending for at least 120 days but not more than 2 years as long as RICHR has not secured a settlement or commenced a hearing on the case; the right to sue letter must be issued within 30 days after receiving the request, and the Superior Court complaint must be filed within 90 days of when the right to sue letter was issued.⁴¹

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies.  For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court.  If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation.  If an employer, employment agency or labor organization discriminates against a person in any manner because he or she has opposed a forbidden practice or has made a charge, testified or assisted in a complaint filed under the anti-discrimination laws, then the employee can state a claim of retaliation.⁴²

FEDERAL LAW

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act and the employer must have at least 15 employees.  However, an employee filing a disability case with the RICHR does not have to file a separate claim with the EEOC. There is a check-off on the RICHR complaint form to have the RICHR file the claim with the EEOC. The EEOC will then defer to the RICHR’s investigation. If a person initially institutes his or her complaint with the RICHR, the time limit for filing a Federal complaint is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding. To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint in court with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

Footnotes

¹ RI ST 23-6.3-11
² 42 U.S.C. § 12101
³ RI ST 23-6.3-11
⁴ 42 U.S.C. § 12112
⁵ RI ST 28-5-7
⁶ 42 U.S.C. § 12111;RI ST 28-5-6 (6), (7)
⁷ RI ST 23-6.3-11
⁸ 42 U.S.C. 12112; RI ST 28-5-7(4)(i)
⁹ Doe v. University of Maryland Medical Systems Corporation, 50 F.3d 1261 (1995).
¹⁰ RI ST 23-6.3-11
¹¹ RI ST 11-24-2
¹² 42 U.S.C. § 12182
¹³ 524 U.S. 624 (1998)
¹⁴ 898 F.Supp. 1157 (E.D. La 1995)
¹⁵ RI ST 23-6.3-11
¹⁶ RI ST 34-37-4
¹⁷ 42 U.S.C. §§ 3601-3619
¹⁸ RI ST 23-6.3-11
¹⁹ RI ST 34-37-4
²⁰ 42 U.S.C. § 3604
²¹ RI ST 23-6.3-11
²² RI ST 34-37-4
²³ 42 U.S.C. §§ 3601-3619
²⁴ RI ST 23-6.3-11
²⁵ 29 U.S.C. § 794
²⁶ RI ST 28-5-17 (a); 34-37-5 (b)
²⁷ RI ST 28-5-7 (1) (i)
²⁸ RI ST 34-37-4 (a)
²⁹ RI ST 11-24-2
³⁰ See generally, RI ST 28-5-17, 34-37-5
³¹ RI ST 28-5-18; 34-37-5
³² RI ST 28-5-28; 34-37-6
³³ RI ST 28-5-24.1 (a); 34-37-5 (l)
³⁴See RI ST 28-5-24.1 (c); 34-37-5 (n)
³⁵ RI ST 34-37-5(m)
³⁶ RI ST 28-5-28; 34-37-6
³⁷ RI ST 28-5-24 (b)(employment); 34-37-5(h) (housing cases); 11-24-4 (public accommodations cases)
³⁸ RI ST 28-5-24 (a)(1)
³⁹ RI ST 34-37-5(h)(2)
⁴⁰ RI ST 28-5-29.1 (employment); 11-24-4 (public accommodations); 34-37-5 (o) (3) (housing)
⁴¹ RI ST 28-5-24.1; 34-37-5(l)
⁴² RI ST 28-5-7 (5); 34-37-4(m).  See also RI ST 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man).  The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws.  See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Questions & Answers (Accurate as of November 3, 2011)

HIV Services for Survivors of Sexual Assault

What services does Vermont law require be provided to survivors of sexual assault crimes?

Vermont law requires that, upon request of the victim of a crime involving a sexual act²⁵, the state must provide the victim with: (1) counseling regarding HIV; (2) testing for HIV and other sexually transmitted diseases; (3) counseling by a medically trained professional on the accuracy of the testing, and the risk of HIV and other sexually transmitted diseases as a result of the crime; (4) antiviral medication prophylaxis treatment, crisis counseling, and support services; and (5) monthly follow-up testing for six months.

Syringe Access and Needle Exchange Programs

Do Vermont laws provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes.  In light of the clear scientific evidence that programs offering access to clean needles: (1) decrease new HIV and hepatitis B and C infections; and (2) increase the number of injection drug users referred to substance abuse treatment, the Vermont Legislature in 1999 passed a law permitting community-based needle exchange programs.²⁶

Under this law, an AIDS service organization, substance abuse provider, or licensed health care provider or facility may apply to the department of health to operate a needle exchange program.  Importantly, a person who possesses needles obtained through such a program is not in violation of the laws making it a crime to possess drug paraphernalia.

How does a person show that he or she lawfully obtained needles through an authorized exchange program?

Needle exchange programs provide identification cards for consumers who are enrolled in the program.  Regulations of the department of health mandate that the cards shall not identify the consumer by name, but rather use a confidential identifier system.²⁷

Am I able to purchase a syringe over-the-counter at a pharmacy?

Yes. Vermont has no legal barrier to the purchase of a syringe at a pharmacy.

Footnotes

²⁵See footnote 13 for definition of “sexual act”
²⁶Vt. Stat. Ann. tit. 18, §§ 4475, 4476 & 4478
²⁷See Vermont Department of Health, Operating Guidelines for Organized Community-Based Needle Exchange Programs, July 2010

Questions & Answers (Accurate as of November 3, 2011)

HIV Testing

What laws in Vermont govern informed consent for HIV testing?

Vermont does not have a statute mandating specific and written informed consent for an HIV test.  An HIV test may therefore be taken based on a general medical consent.  Vermont, however, does have a specific law requiring that insurers who test applicants for HIV follow specific procedures, including obtaining HIV-specific written consent.

What procedures must an insurer follow when testing an applicant for HIV?

An insurer in Vermont cannot require that a person reveal having taken HIV tests in the past.  The insurer, however, can request that an applicant or insured take an HIV test.  In addition to obtaining HIV-specific written informed consent for an HIV test, the insurer must provide specific information to every applicant.  This information includes:

1. An explanation of the HIV test, and its relationship to AIDS;
2. The limitations on the accuracy and meaning of the test results, and the importance of seeking counseling about the test results;
3. The insurer’s purpose in seeking the test;
4. An explanation that the individual is free to consult with a personal physician or counselor about HIV testing and may obtain an anonymous test before being tested by the insurer;
5. An explanation that the person has the choice to receive the test results directly or through another person designated in writing; and
6. A statement that the insurer may disclose the test results to others—such as its medical personnel—in order to make underwriting decisions.

An insurer may disclose to the Medical Information Bureau, a centralized insurance industry database, that an individual who tested HIV-positive received an abnormal blood test result, but may not specify HIV-positivity.  In addition, an insurer may not disclose HIV-related information to any insurance broker or agent.

The information required to be provided to the applicant or insured must be read aloud to the insured as well as provided in writing.²⁰

Are there circumstances under which Vermont law permits HIV testing, even against a person’s wishes?

Yes.  Vermont law provides for HIV testing under one unique circumstance.  A court may order that a person convicted of an offense involving a sexual act be tested for HIV and that the result be disclosed to the victim.²¹  Records of any court proceedings are sealed.

In addition, the law provides that a defendant who has been charged with a sexual act offense, but has not yet been convicted, may offer to be tested for HIV and other sexually transmitted diseases.  The test result may not be used as evidence at the defendant’s criminal trial, but if the defendant is ultimately convicted, the court may consider the offer for testing as a mitigating factor.²²

Privacy

What laws in Vermont protect the privacy of medical information, such as HIV?

Under general common law principles, physicians, health care providers and institutions cannot disclose private medical information to others without the patient’s consent.

Does a person with HIV have a Constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

Are there circumstances under which Vermont law permits the disclosure of HIV status, even against a person’s wishes?

Yes.  Vermont law provides for disclosure of HIV status under specifically prescribed circumstances.

1. Court Ordered Disclosure:  Under Vermont law, a court may order that an individual disclose HIV-related testing or counseling information if it finds that the person seeking the information has “demonstrated a compelling need for it that cannot be accommodated by other means.”²³  In making such a determination, the court weighs the need for the disclosure of a person’s HIV status against the privacy interest at stake.  In recognition of the importance of maintaining the privacy of HIV status, the Vermont Legislature has also directed courts in such cases to consider whether the public interest may be disserved by a disclosure of HIV status that deters future testing and may lead to discrimination.  The law contains numerous procedural safeguards, including a requirement that the name of the test subject not be disclosed, the right of the test subject to participate in the court hearing, and a requirement that any court order specify who may have access to the HIV-related information and prohibitions on future disclosure.
2. HIV and AIDS Reporting for Epidemiological Tracking:  All states require that numerous health conditions be reported to state health officials in order to assess trends in the epidemiology of diseases and develop effective prevention strategies. Vermont law requires that a broad range of health care providers, hospitals, and managed care organizations report a diagnosis of HIV infection or AIDS to the Department of Health.²⁴  The patient’s name is included in the report. Vermont law specifies that:
   • An individual must be informed prior to an HIV test that a positive test will require reporting of the individual’s name to the Department of Health and that there are testing sites that provide anonymous testing that are not required to report positive results.
   • The Department of Health is prohibited from disclosing a public health record identifying a person as having HIV or AIDS without the individual’s voluntary written authorization, including to other states, the federal government or other Vermont state agencies.
   • Department of Health records identifying a person as having HIV or AIDS may not be used in a civil, criminal or administrative legal proceeding, or for employment or insurance purposes.

Footnotes

²⁰Vt. Stat. Ann. tit. 8, § 4724 (20) (B) (i)
²¹Vt. Stat. Ann. tit. 13, § 3256.  The term sexual act , defined in Vt. Stat. Ann. tit. 13, § 3251, means: 1) contact between penis and vulva, mouth and penis, mouth and vulva, or any intrusion of a body part or object into the genital or anal opening of another; and 2) which creates a risk of transmission of HIV as determined by the U.S. Centers for Disease Control
²²Vt. Stat. Ann. tit. 13, § 3256 (f)
²³Vt. Stat. Ann. tit. 12, § 1705 (a)
²⁴Vt. Stat. Ann. tit. 18, §1001 (a)

Questions & Answers (Accurate as of November 3, 2011)

Discrimination Based on HIV Status

Does Vermont have laws protecting people with HIV from discrimination?

Yes. Vermont has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations.  In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

Who is protected under these anti-discrimination laws?

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who have a record of or who are regarded or perceived as having HIV.
• Under federal law, but not Vermont law, a person who does not have HIV, but who “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person with HIV.

Employment

ADVERSE TREATMENT

What laws protect people with HIV from discrimination in employment?

There are two general sources of law that protect people with HIV and AIDS from discrimination in employment.  First, Vermont has a specific law prohibiting an employer from discriminating on the basis of a person’s HIV-positive test result.¹  This law also prohibits any employer from requiring an HIV test as a condition of employment.

More generally, people with HIV are protected under the federal Americans with Disabilities Act (ADA) and the Vermont Fair Employment Practices law, both of which prohibit discrimination on the basis of a person’s disability.  For purposes of these laws, the word “disability” refers to a wide range of health conditions.  The ADA covers employers with 15 or more employees.  The Vermont law covers employers with one or more persons performing services in the state.²

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person get a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation.  An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business. 

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

What may an employer ask about an employee’s health?

Under the ADA, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability.  Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After a conditional offer of employment, an employer may require a physical examination or medical history.  The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation.  The same medical inquiries must be made of each person in the same job category.  In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.

After employment has begun, an employer may only require a physical examination if it is job-related and consistent with business necessity.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero.  Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard.  As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”³

It is important to note that only a small number of courts have addressed the rights of HIV-¬positive health care workers.  The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA.  Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.”  What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be?  How will you prove that the employer’s version is false?

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position?  You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:

   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation?  For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Public Accommodations

Do Vermont laws protect against discrimination by health care providers, businesses, and other public places?

Yes.  Under Vermont law⁴ and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.

Does Vermont have public accommodation laws that specifically pertain to schools?

Yes. In addition to the general prohibition against discrimination in places of public accommodation, Vermont has a specific law that prohibits a school district or educational institution from discriminating against any applicant or student based on HIV status.⁵  In addition, school districts and educational institutions may not request or require that an applicant or student take an HIV test.  A student or applicant who is harmed by a violation of this statute may bring a lawsuit in Superior Court for injunctive relief and damages.

Does Vermont have public accommodations laws that specifically pertain to health care?

Yes. Vermont also has a specific law prohibiting discrimination by health care providers or facilities against people with HIV.  In addition, health care providers and facilities may not require an HIV test as a “condition for receiving unrelated treatment or service.”⁶  An individual may bring a lawsuit in Superior Court for injunctive relief and damages based on violations of this statute.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments are made by doctors who discriminate against people with HIV and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Vermont law.

How have courts and medical experts responded to these arguments?

1. “Treating People with HIV is Dangerous:”  Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.  For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.⁷  In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise:”  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.  In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.⁸  The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV.  While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA⁹, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions that tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does Vermont law compare with the ADA?

Vermont law will be interpreted in a similar manner to the ADA.

Housing

What Vermont laws prohibit discrimination in housing?

It is illegal under both Vermont law¹⁰,  and the National Fair Housing Amendments of 1989, to discriminate in the sale or rental of housing on the basis of HIV status.

A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

Are there any exceptions to these laws?

An exception exists under Vermont law for rentals in buildings that consist of three or fewer units, where the owner or a member of the owner’s immediate family resides in one of the units.¹¹  In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.

Pursuing a Claim Under Vermont Law

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency.  Sometimes you have more than one option about where to file. This chart provides a quick guide, and the details are discussed afterwards.

Human Rights Commission

• Employment claims against the state
• Public Accommodations
• Housing

Civil Rights Unit of Attorney General’s Office

• Employment claims against parties other than the State of Vermont

Superior Court

• Employment (against state or private parties)
• Public Accommodations
• Housing

Dep’t of Banking, Insurance, Securities & Health Care Admin.

• Credit Services
Retail Installment Contracts
• Insurance

Consumer Protection Division of Attorney General’s Office

• Agricultural Finance Leases

State Employment, Public Accommodations, or Housing

• If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:

  The Vermont Human Rights Commission, 153 State Street, Drawer 33, Montpelier, VT 05633-6301, (800) 416-2010, human.rights@state.vt.us

  A complaint may be filed under oath in person, by telephone, in writing or by e-mail stating the facts concerning the alleged discrimination.
• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

General Employment

• If you believe you have been discriminated against by a party other than the state (for example, a private business or a town), you may file a complaint under oath with the

  Civil Rights Unit, Office of the Attorney General (CRU), 109 State Street, Montpelier, VT 05609-1001, (888) 745-9195, civilrights@atg.state.vt.us

  Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can find at http://www.state.vt.us/atg/CRU%2-Questionnaire.htm.
• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

Credit or Services

• If you believe you have been discriminated against in the provision of credit services, retail installment contracts, or insurance, you may file a complaint in writing with the

  Department of Banking, Insurance, Securities and Health Care Administration, 89 Main Street, Drawer 20, Montpelier, VT 05620-3101

  You can contact the Banking Division for complaints involving credit services or installment contracts at (802) 828-3307, and the Insurance Division for complaints involving insurance at (802) 828-3301.  In addition, you may want to contact the Vermont Human Rights Commission.
• If you believe you have been discriminated against with regard to an agricultural finance lease, you may file a complaint with the

  Consumer Protection Division of the Office of the Attorney General, Consumer Assistance Program, 104 Morrill Hall-UVM, Burlington, VT 05405, (800) 649-2424, consumer@uvm.edu, http://www.state.vt.us/atg/complaint%20form.htm

Do I need a lawyer?

No. The processes at all of these agencies are designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court.  Not only are there many legal rules governing these processes, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts.¹²  The CRU also has a policy of requiring complaints to be filed within one year.  If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time.  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the Commission or the CRU?

If you file with the Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim.  If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed—the respondent—who has to respond to the allegations within ten days.  The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against.  In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses.  The Commission staff then decides whether there are reasonable grounds to credit your allegations.¹³

If you file a complaint with the CRU, the process is very similar, and is described in detail on the CRU’s website: http://www.state.vt.us/atg/Civil%20Rights%20Unit%20Process.htm

.

The CRU allows the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process.  If these efforts fail, at the end of the investigation the CRU issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency.  If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations.¹⁴

Similarly, if the CRU finds a violation of law, the respondent will be asked to engage in settlement negotiations to try to resolve the case.  If these negotiations fail, the CRU may file a complaint against the respondent in Superior Court.

If reasonable grounds or a violation of law are not found, the case is over within the Commission¹⁵ or the CRU.

At this point, or at any point in the process at the Commission or CRU, you may decide to file a case in court.  It is crucial to always keep in mind the deadlines for filing such a case, as discussed above.  If you do so while an investigation is pending at either of these agencies, the agency may close the investigation, unless it determines that there is good cause to continue it and make a final determination.  If the agency continues its investigation and finds reasonable grounds, the agency may try to intervene in a case you have filed in order to pursue the state’s interest in enforcing the antidiscrimination laws.

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

Employment

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, back pay, front pay, restitution of wages or other benefits, damages, including those for emotional distress, civil penalties (where applicable), and punitive damages.¹⁷

Public Accommodations and Housing

In public accommodations and housing cases, remedies may include injunctive relief, compensatory damages (expenses actually incurred because of unlawful action), and punitive damages.¹⁸  In addition, criminal penalties of fines up to $1000 may be imposed.¹⁹

In all of these cases, the court may grant attorney’s fees, costs and other appropriate relief that is consistent with the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person non-discriminatory access to and use of public accommodation).

Are there other ways to pursue a complaint for discrimination?

Possibly, depending on the facts of your particular situation.  This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Get and read a copy of your contract and contact a union representative about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.

Pursuing a Claim Under Federal Law

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees.  A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act, but if a person initially institutes his or her complaint under the Vermont anti-discrimination statute, then the time limit is extended to the earlier of 300 days or 30 days after Vermont has terminated the case.  A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease).  Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice.  However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court. To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

 

Footnotes

¹Vt. Stat. Ann. tit. 21, § 495 (a) (6)-(7)
²Vt. Stat. Ann. tit. 21, § 495d (1)
³Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4th Circ. 1995)
⁴Vt. Stat. Ann. tit. 9, § 4502
⁵Vt. Stat. Ann. tit. 18, § 1127
⁶Vt. Stat. Ann. tit. 18, § 1128
⁷524 U.S. 624 (1998)
⁸898 F. Supp. 1157 (E.D. La 1995)
⁹42 U.S.C. §§12181-12188
¹⁰Vt. Stat. Ann. tit. 9, § 4503
¹¹Vt. Stat. Ann. tit. 9, § 4504
¹²Vt. Code R. 80 250 001, Rule 1
¹³Vt. Stat. Ann. tit. 9,  § 4554 (a) – (c)
¹⁴Vt. Stat. Ann. tit. 9,  § 4554 (e)
¹⁵Vt. Stat. Ann. tit. 9, § 4554 (d)
¹⁶Vt. Code R. 80 250 001, Rule 23
¹⁷Vt. Stat. Ann. tit. 21, § 495b
¹⁸Vt. Stat. Ann. tit. 9,  § 4506
¹⁹Vt. Stat. Ann. tit. 9, § 4507

Questions & Answers (Accurate as of November 2, 2011)

Access to Clean Needles

Do New Hampshire laws provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes, under a New Hampshire law that went into effect on January 1, 2001, a person who is over 18 years of age may legally purchase a hypodermic syringe or needle at a pharmacy without a prescription from a physician.  A pharmacy may sell to any such person up to ten syringes or needles at any single purchase.⁵⁶

Footnotes

⁵⁶RSA § 318:52-C

Questions & Answers (Accurate as of November 2, 2011)

HIV Testing

CONSENT

Does New Hampshire have a law governing consent for HIV testing?

Yes, New Hampshire has a statute mandating consent for an HIV test, except in certain cases which are enumerated later.  A physician, licensed nurse practitioner, employee of a health care facility, or employee of a blood bank, may administer an HIV test when the patient has provided his/her consent.²¹

Does consent for an HIV test have to be in writing?

No, New Hampshire law does not mandate written consent for an HIV test.  In order to avoid disputes about whether consent has been obtained, providers may want to document a patient’s consent in the record or obtain consent in writing.

What do providers have to inform their patients about, prior to testing a person for HIV or when the results are given to the patient?

In 2007, New Hampshire eliminated any requirement of pretest counseling prior to the administration of an HIV test.  New Hampshire law, however, mandates “appropriate counseling” of the individual who was tested.²²

MINORS AND CONSENT

Can a physician test a minor for HIV without consent of a parent or guardian?

Yes, any minor over the age of 14 can provide consent to be tested and treated for HIV without the consent or knowledge of a parent or legal guardian.^23,24

In addition, a physician is not obligated to, but may, disclose a positive test result to a parent or legal guardian of a person who is under the age of 18.²⁵  If confidentiality is important to you, it is a good idea to talk to your doctor up front and understand his or her policies on this issue.

HIV TESTING WITHOUT CONSENT

Are there circumstances under which New Hampshire law permits HIV testing, even against a person’s wishes?

Yes, there are four circumstances under which voluntary consent is not required:

1. Testing of Persons Convicted of Sexual Assault Crimes:  All people convicted of a sexual assault crime in NH are tested for HIV.  The test results will be disclosed to the person convicted and to the office of victim/witness assistance.  The office of victim/witness assistance is authorized to disclose the test results to the victim and the county attorney victim/witness advocates, although this is discretionary.  The victim may be notified regardless of whether the victim has requested notification.  The state must also provide counseling and referrals to the victim and the person convicted, and offer HIV testing for the victim.²⁶
2. Prisoners:  Individuals who are convicted and confined to a correctional facility, or people committed to New Hampshire Hospital (the state psychiatric hospital), “may be tested without obtaining written informed consent to the testing, when the results of such tests are necessary for the placement and management of such individuals in the facility,” in accordance with the written policies and procedures of the chief administrator of the facility.²⁷  In addition, test results of HIV-positive persons committed to a prison or mental health facility are disclosed to the medical director or chief medical officer of such facility.  The medical director of the facility “shall” provide the facility’s administrator “whatever medical data is necessary to properly assign, treat, or manage the affected individual.”  Similarly, the administrator “may” share this information with other officials who require the information to properly assign, treat, or manage the affected individual.²⁸
3. Patient Emergencies:  When a patient is incapable of giving informed consent, a physician (or person authorized by a physician) may take an HIV test without informed consent if the test is “immediately necessary to protect the health of the [patient].”²⁹
4. Testing of Donated Blood Products:  Any agency receiving purchased or donated blood products “shall” test them for HIV prior to their distribution and use.^30,31

What about the testing of patients after occupational exposure?  Can a person in New Hampshire be forced to take an HIV test because of a threat of occupational exposure?

No, New Hampshire law does not provide any authorization for involuntary HIV testing of patients in the event of an exposure to a health care worker or emergency first aid personnel.

However, in the event that an emergency response or public safety worker³² experiences an occupational exposure to an infectious disease, the emergency response worker’s employer must have a medical referral consultant evaluate the exposure and give appropriate care, including prophylactic treatment.  The medical referral consultant is required to “make all reasonable efforts to request and obtain a blood specimen from a source individual” for HIV testing when, in his or her opinion, HIV testing is “necessary in order to determine the proper prophylactic treatment or advice for the exposed worker.”  Nonetheless, the source individual or their legal guardian must consent to an HIV test and any disclosure of the test results to third persons.³³

HIV TESTING AND INSURERS

Do the laws that pertain to testing done by health organizations pertain to testing done by insurers?

No, New Hampshire law makes a distinction between HIV testing by health organizations and HIV testing done by insurers.  A separate set of laws under the state Unfair Insurance Trade Practices Act³⁴ governs HIV testing by insurers, rather than the general HIV testing statute.

Are there privacy laws that pertain to the HIV test results that an insurer obtains from an individual?

Yes, the insurer can disclose the results of a positive HIV test only to the individual tested or any person the individual clearly authorized in writing on the form.

The insurer must maintain all results and records “confidential and protected against inadvertent or unwarranted intrusion.”³⁵

Must an insurance company or agent obtain written consent before testing an insurance applicant for HIV?

Yes, in order to test an insurance applicant for HIV, an insurer must obtain written consent for an HIV test on a form designated by the Department of Health and Human Services, containing information about the medical interpretations of positive and negative test results, disclosure of test results, and the purpose for which the results may be used.³⁶

What are possible remedies that a consumer may recover, if the insurer violates any of the privacy provisions of this law?

The Commissioner of Insurance enforces these confidentiality provisions.  If the Commissioner finds that an insurer violated any confidentiality provision, a consumer may subsequently bring a suit against the insurer.³⁷  If the consumer prevails, he or she may recover damages, costs, and reasonable attorney’s fees.³⁸

Privacy

CONFIDENTIALITY OF HIV TEST RESULTS

Are there laws in New Hampshire that protect the privacy of medical information, such as HIV?

Yes, according to New Hampshire law, a health care provider may not reveal the identity of any person tested for HIV “to any person or agency except”:

• The individual tested;
• Their parent or legal guardian if they are a minor or a mentally incompetent adult; and
• The physician ordering the test, or the person authorized by the physician.³⁹

New Hampshire law provides privacy protections for HIV+ test results in virtually every context.  Under New Hampshire law, “[a]ll records and any other information pertaining to a person’s testing for [HIV] shall be maintained by a health care provider, health or social service agency, organization, business, school or any other entity, public or private, as confidential, and protected from inadvertent or unwarranted intrusion.” ⁴⁰

These confidentiality provisions apply to the disclosure of mental health, substance abuse, and other health-related records containing HIV or AIDS status information.

What form of consent must a health care provider obtain from a person before disclosing information about a person’s HIV test?

Written consent is required to disclose an individual’s HIV test results, or even that a person was the subject of an HIV test.  Such written authorization must be HIV-specific and must include the reason for the request to disclose the test result.⁴¹

This requirement, that a doctor obtain written consent before disclosing information about a person’s HIV test, is different from the requirement that is necessary for a physician to test a person for HIV.  As discussed above, consent may be verbal for a physician or health care provider to test a person for HIV.

Does a person with HIV have a Constitutional right to privacy?

Yes, many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, doctors at a state hospital.

How do courts determine if a person’s constitutional right to privacy has been violated?

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

EXCEPTIONS TO THE NEW HAMPSHIRE HIV PRIVACY STATUTE

Are there circumstances under which New Hampshire law permits the disclosure of HIV status, even against a person’s wishes?

Yes, New Hampshire law provides for disclosure of HIV status under two specifically prescribed circumstances.

1. Health of a Patient:  A physician may disclose HIV test results to another physician or health care provider “directly involved” in the patient’s health care if the disclosure is “necessary in order to protect the health of the person tested.”⁴²
2. Blood Donations:  The identity of a person who tests positive for HIV may be disclosed to an agency who receives blood donations, provided that the information remains confidential and protected from unwarranted intrusion.⁴³

REMEDIES

What can happen if the New Hampshire testing and privacy statute is violated?

Any person who violates the HIV confidentiality and disclosure statutes described above⁴⁴  shall be liable for actual damages, court costs, and attorney’s fees, plus a civil penalty of up to $5000.⁴⁵

Violations of the informed consent, test reporting, or confidentiality provisions described above⁴⁶ may also result in criminal liability.  Violations are considered misdemeanors if committed by a person, and felonies if committed by a corporate entity.

STATE HIV REPORTING REQUIREMENTS

Do laws exist in New Hampshire that require HIV-positive test results to be reported to the state department of public health?

Yes, New Hampshire regulations require physicians, health care providers, and diagnostic labs to report HIV and AIDS cases to the Department of Public Health within 72 hours.⁴⁷  Local boards of health and individuals in charge of institutions where there is no health care provider in attendance are also required to report cases of communicable diseases to the Department “immediately,” including HIV or AIDS.⁴⁸

Both reports of AIDS and HIV diagnoses must indicate the name of the patient.⁴⁹

May the Department of Public Health notify others of my HIV status?

Yes, New Hampshire law includes a general provision permitting the Commissioner of Public Health or his or her designee to do “contact referral” to notify persons who may have been infected with HIV.  The law, however, prohibits the Commissioner or his or her designee from disclosing the identity of any HIV-positive individual.⁵⁰  The State’s current practice is to offer assistance to HIV-positive individuals in notifying partners.

DUTY TO WARN

Do health care professionals ever have an obligation to warn a third party about a client’s HIV status?

A counselor or physician may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances.  It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under New Hampshire law.  Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved.  For a legal opinion on how to handle a particular situation, a professional should consult with a supervisor or lawyer.

Does New Hampshire have a “duty to warn” statute?

Yes, New Hampshire has statutes generally addressing a duty by specified health providers to warn of threats of client violence to third parties.  When a client has communicated a serious threat of physical violence against a clearly identified victim or a serious threat of substantial damage to real property, covered professionals⁵¹ in New Hampshire have a “duty to warn” of, or take reasonable precautions to provide protection from, a client’s violent behavior.  These laws apply to certified mental health professionals,^52,53 physicians⁵⁴ and nurses.⁵⁵

The obligation to warn can be fulfilled through:

• Reasonable efforts to communicate the threat to a victim;
• Notification of police; [and/or]
• Civil commitment of the client to the state mental health system.  (Note: the client must be in a mental condition “as a result of the mental illness to pose a likelihood of danger to himself or others.”)

A covered professional is not liable for information disclosed to a third party in an effort to discharge the duty described above. It is important to keep in mind that New Hampshire law does not permit the disclosure of HIV status without written consent.  Therefore, although no court has resolved the issue, the applicability of these duty to warn statutes to HIV is doubtful in light of this broad prohibition on the disclosure of HIV status in New Hampshire.

Footnotes

²¹RSA § 141-F:5.
²²RSA § 141-F:7, II.
²³This statute permits a minor over the age of 14 to “voluntarily submit himself to medical diagnosis and treatment for a sexually transmitted disease…without the knowledge or consent of the parent or legal guardian.”  While HIV can also be transmitted through other means, it is recognized as a sexually transmitted disease for the purposes of this law. 
²⁴RSA § 141-C:18, II.
²⁵RSA § 141-F:7, III.
²⁶RSA § 632-A:10-b.
²⁷RSA § 141-F:5, IV.
²⁸RSA § 141-F:7, IV.
²⁹RSA § 141-F:5, V.
³⁰This statute also includes provisions for HIV testing without consent of donated body parts, fluids, or tissue used for medical or research purposes if the identity of the test subject is not known and cannot be determined by the researcher.
³¹RSA § 141-F:5, I - III.
³²Includes firefighters, police officers, prison employees, emergency health care providers, and emergency towing personnel.
³³RSA § 141-G.
³⁴RSA § 417:4, XIX.
³⁵RSA § 141-F:8.
³⁶RSA § 417:4, XIX.
³⁷RSA § 417:19.
³⁸RSA § 417:20.
³⁹RSA § 141-F:7-8.
⁴⁰In addition, all records or information pertaining to a person’s HIV test which are “obtained by subpoena or any other method of discovery shall not be released or made public.” RSA § 141-F:8, II.
⁴¹RSA § 141-F:8.
⁴²RSA § 141-F:8, IV.
⁴³RSA § 141-F:8, V.
⁴⁴RSA § 141-F:7-141-F:8.
⁴⁵RSA § 141-F:10.
⁴⁶RSA § 141-F:5-141-F:8.
⁴⁷See Department of Health and Human Services Regulations, NH He-P 301.02. 
⁴⁸This provision includes schools, childcare agencies, hotels, restaurants, workplaces, hospitals, pharmacies, and prisons.  NH He-P 301.03.
⁴⁹NH He-P 301.03 (b).
⁵⁰RSA § 141-F:9. 
⁵¹These statutes also cover those who provide treatment “under the supervision” of covered professionals.
⁵²The statute includes psychologists, clinical social workers, pastoral counselors, medical health counselors, and marriage and family therapists.
⁵³RSA § 330-A:22.
⁵⁴RSA § 329:31.
⁵⁵RSA § 326-B:31.

 

 

 

 

Questions & Answers (Accurate as of November 2, 2011)

Discrimination Based on HIV Status

Are there laws in New Hampshire that protect people with HIV from discrimination?

Yes, New Hampshire has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations.  In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

Who is protected under the anti-discrimination laws introduced above?

The following people are protected under these anti-discrimination laws:

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who are regarded or perceived as having HIV.
• Under federal law, but not New Hampshire law, a person who does not have HIV, but who “associates” with a person with HIV — such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.

Discrimination in Employment

ADVERSE TREATMENT

What laws protect people with HIV from discrimination in employment?

People with HIV are protected under the New Hampshire Law Against Discrimination,¹  and the federal Americans with Disabilities Act (ADA).  Both of these statutes prohibit discrimination in employment on the basis of a person’s disability.  New Hampshire law covers workplaces with six or more employees.  The ADA covers workplaces with 15 or more employees.

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS.  This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties.  This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability.  Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

There is no fixed set of accommodations that an employee may request.  The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

No, an employer is not obligated to grant each and every request for an accommodation.  An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation).  In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties.  An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and New Hampshire law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability.  Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After an offer of employment, can an employer require a medical exam?  What guidelines apply?

If an employer has 15 or more employees, they must comply with the ADA.  After a conditional offer of employment, the ADA permits an employer to require a physical examination or medical history.  The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation.  The same medical inquiries must be made of each person in the same job category.  In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.  After employment has begun, the ADA permits an employer to require a physical examination, only if it is job-related and consistent with business necessity.

If an employer has at least six but fewer than 15 employees, only New Hampshire law applies.  New Hampshire law allows employers, after making an offer of employment, to inquire into and keep records of existing or pre-existing physical or mental conditions.²  New Hampshire law, however, does not mandate the specific requirements and limitations that are contained in the ADA regarding a post-offer exam.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero.  Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard.  As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.”  To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation.  Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”³

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers.  The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA.  Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, a bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.”  What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue?  Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position?  You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:

   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Discrimination in Places of Public Accommodation

Do New Hampshire laws protect against discrimination by health care providers, businesses, and other public places?

Yes, under New Hampshire law⁴ and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.  In addition, the Federal Rehabilitation Act of 1973⁵ prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and New Hampshire law.

How have courts and medical experts responded to these arguments?

Courts and medical experts responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous:”  Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.  For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.⁶  In addition to the legal perspective, both the American Medical Association and the American Dental Association and many other professional health care organizations have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise:”  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.  In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.⁷  The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA⁸, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does New Hampshire law compare with the ADA?

New Hampshire law will be interpreted in a similar manner to the ADA.

Discrimination in Housing

What laws prohibit discrimination in housing?

It is illegal, under both New Hampshire law⁹ and the National Fair Housing Amendments of 1989, to discriminate in the sale or rental of housing on the basis of HIV status.  A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against because of his or her “association” with a person with HIV.  This means a person cannot be discriminated against because his or her roommate, lover, relative, or business partner has HIV.

Are there any exceptions to these laws?

Yes, exceptions to New Hampshire law exist for single family homes rented by the owner; for residences of 3 or fewer apartments when the owner occupies one apartment; and for residences of five or fewer rooms when the owner or owner’s family live in one room.¹⁰  In addition, the Fair Housing Act exempts, in some circumstances, owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.

Remedies for Discrimination

PURSUING A COMPLAINT UNDER NEW HAMPSHIRE LAW

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am gay or lesbian and HIV positive?

Yes.  The state non-discrimination laws forbid taking an action against someone because of sexual orientation as well as because of age, sex, race, color, marital status, physical or mental disability, religious creed or national origin.¹¹  (Note, the housing non-discrimination laws also protect people based on their “familial status.”)

How do I file a complaint of discrimination?

You may file a complaint with the New Hampshire Commission on Human Rights (“CHR,” or “Commission”), 2 Chennel Drive, Concord, NH 03301.  Information is available from (603) 271-2767.  The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”).  The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.¹²

Do I need a lawyer?

You do not need a lawyer at the CHR because the process is designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout the legal process, whether at the CHR or otherwise.  Not only are there many legal rules governing the CHR process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the CHR within 180 days of the discriminatory act or acts.¹³  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.  The Attorney General can also file claims of discrimination.

What happens after a complaint is filed with the CHR?

The CHR assigns an investigator to look into your case, who may as part of the investigation send out written questions (interrogatories) to be answered under oath or request documents from the parties.  If the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found, the case will be sent for “conciliation” or settlement proceedings.  If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further and the respondent will be asked to answer the complaint.  After more discovery by the parties of each other’s positions, the Commission can hold a trial type hearing before 3 Commissioners.  At that hearing, a person can be represented by a lawyer for the Commission or a private attorney.¹⁴  A losing party can appeal to the Superior Court, and a winning party can file a case in Superior Court requesting enforcement of any CHR orders.

If the Commission does not find probable cause, a complainant may appeal to the Superior Court and must then show that the Commission’s decision is unlawful or unreasonable by a clear preponderance of the evidence.¹⁵

What are the legal remedies the NHCHR may award for discrimination if an individual wins his or her case there?

Whether a case involves employment, housing or public accommodations, the Commission may order the respondent to cease and desist from the unlawful conduct.  The CHR may also order a respondent to do something affirmatively, such as hire, reinstate or upgrade an employee, restore a person to a labor organization, or extend a person the full advantages of a place of public accommodation.  Employees may receive back pay, and all victims of discrimination are eligible for compensatory damages, including emotional distress damages.  Finally, the Commission may impose an administrative fine (payable to the State), of up to $50,000 depending on how many past offenses the respondent has committed.¹⁶

Note that if a person’s complaint is dismissed, and deemed frivolous, a respondent may seek to collect its reasonable costs and attorney’s fees from the complainant.¹⁷

Are there other agencies at which I can file a complaint for discrimination?

You may have other places to turn, but it depends on the facts of your particular situation.  This publication concerns only New Hampshire non-discrimination law, and you may well have other rights.

1. Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Get and read a copy of your contract and contact a union steward about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. State Court:  When claims of discrimination based on state law are removed from the CHR and filed in state superior court, either party may request a jury trial and the court may order the same relief as would the CHR.¹⁸

For cases alleging violation of state non-discrimination laws, once a person has completed the CHR process, a party may file a new case in court to review the CHR decision or to seek enforcement of a CHR order.¹⁹

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies.  For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court.  If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation.  “Retaliation” protections cover those who oppose unlawful conduct, or who have filed a complaint, testified, or assisted in any proceeding.²⁰

What can I do to prepare myself before filing a complaint of discrimination?

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences.  Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim.  This is an individual choice which should be made after gathering the information and advice to make an informed choice. 

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case.  It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them).  It is also helpful to have a list of witnesses and other possible victims of discrimination.  Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.  If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

PURSUING A COMPLAINT UNDER FEDERAL LAW

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act and the employer must have at least 15 employees.  However, an employee filing a disability case with the CHR does not have to file a separate claim with the EEOC.  There is a check-off on the CHR complaint form to have the CHR file the claim with the EEOC.  The EEOC will then defer to the CHR’s investigation.  If a person initially institutes his or her complaint with the CHR, the time limit for filing a Federal complaint is extended to the earlier of 300 days or 30 days after the CHR has terminated the case.  A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease).  Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice.  However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.  To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

 

Footnotes

¹RSA § 354-A.
²RSA § 354-A:7, III.
³Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4th Cir. 1995).
⁴RSA § 354-A:1.
⁵29 U.S.C.A. § 794.
⁶524 U.S. 624 (1998).
⁷898 F. Supp. 1157 (E.D. La 1995).
⁸42 U.S.C. §§ 12181-12188.
⁹RSA § 354-A:12.
¹⁰RSA § 354-A:13.
¹¹RSA 354-A:7.
¹²RSA 354-A:21.
¹³RSA 354-A:21, III.
¹⁴See generally RSA 354-A:21.
¹⁵RSA 354-A:21, II-a.
¹⁶RSA 354-A:21, II-d.
¹⁷RSA 354-A:21 II-f.
¹⁸RSA 354-A:21-a.
¹⁹RSA 354-A:22, I.
²⁰RSA 354-A:19.  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim of gay man).

Questions & Answers (Accurate as of May 25, 2011)

Harassment and Discrimination at School

Are there any laws protecting gay and transgender students in New Hampshire?

Yes, on July 1, 2010 a revison to the Pupil Safety and Violence Prevention Act (HB 1523)¹⁰⁰ specifically recognizes that pupils who are or are perceived to be gay, lesbian or transgender are one of the groups that have historically been targeted for bullying.  New Hampshire now has one of the strongest anti-bullying laws in the country.

This law requires that each school district and charter school adopt a written policy prohibiting bullying and cyberbullying that includes:
• the procedure for reporting the bullying.
• a procedure for notifying the parents or guardian of a victim within 48 hours of the incident report that can be waived if the school feels that doing so is in the best interests of the victim or perpetrator.
• a procedure for investigating the incident in a timely manner, and, for any substantiated incident of bullying, the school must create a remediation plan that may include appropriate disciplinary action against the perpetrator, steps to reduce future incidents or retaliation and, if appropriate, offer assistance to the victim or perpertrator.  The remediation plan must also be communicated to the parents or guardians of all the students involved in the incident.
• a plan for communicating, training and educating students, staff and parents about the anti-bullying policy.

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

Possibly.  Under federal law, public schools which receive federal funds may not discriminate on the basis of sex.  Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX.  Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston.  A student’s constitutional rights may be violated by some kinds of discrimination and harassment.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you.  That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified—usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

You may also want to contact the State Dept. of Education at (603) 271-3494 or at http://www.ed.state.nh.us/.  If you want to consider legal action against the town, contact GLAD.

Gay/Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

Students have broad rights to form groups.  In particular, a federal law known as the “Equal Access Act” provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings.  GLAD brought and won a case for students who wanted to start a Gay Straight Alliance at West High in Manchester, New Hampshire on this very basis.

Footnotes

¹⁰⁰See HB 1523 at http://www.gencourt.state.nh.us/legislation/2010/HB1523.html.

Questions & Answers (Accurate as of December 2, 2009)

Hate Crimes & Violence

Does New Hampshire have a hate crimes law?

Yes, New Hampshire has a law providing for increased penalties for hate-motivated violence.⁷⁹  If a person was “substantially motivated to commit the crime because of hostility towards the victim’s religion, race, creed, sexual orientation . . ., national origin, or sex,” penalties may be increased.  The defendant must be notified of the possibility of an enhanced penalty prior to the trial.⁸⁰

What other laws provide protection against hate-motivated violence?

• General Criminal Laws:  Hate crimes can sometimes be prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, etc.  These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for some level of criminal accountability.  But New Hampshire does allow a sentence to be increased when the crime is bias-motivated.
• “Civil Rights Law”:  On the civil side, New Hampshire law permits the Attorney General (but not a private person on his or her own) to bring a civil action seeking a protective order or other relief when an attacker—because of the sexual orientation, race, color, religion, national origin, ancestry, gender or disability of the victim—interferes with a person’s rights granted them under state or federal law.⁸¹  The Attorney General may also bring claims against minors.⁸²  There is no doubt these laws can be used to seek protection from further gay bashing incidents.  In addition, a person who violates the law may be ordered to pay a fine (to the State) of up to $5,000, as well as out-of-pocket expenses incurred by the victim (to the extent those have not been paid by another).⁸³  Violation of a court-issued restraining order or injunction is a criminal offense.⁸⁴

Where can I call if I think I’ve been a victim of a hate crime?

In addition to contacting the local police, you may contact the 24-hour hotline operated by the Attorney General’s Office at (603) 271-1241.  You may also call the Criminal Division of the Attorney General’s office at (603) 271-3658.  Be sure to explain all of the factors that make you think this was a crime of bias.

For support and advocacy, contact;

• the New Hampshire Attorney General’s Office, Office of Victim/Witness, 33 Capitol St., Concord, NH 03301-6397, (603) 271-3671;
• New Hampshire Coalition Against Domestic and Sexual Violence, (800) 277-5570.

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act⁸⁵ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does New Hampshire have a sodomy law?

No.

If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

Gay people are subject to the full range of laws as are non-gay people, so sex in public, or with underage persons, or without consent, or with force, are all illegal.  Sex for pay—as either the customer or the provider—i.e., prostitution, is also illegal.

Some gay people are arrested for violating the “indecent exposure and lewdness” law.⁸⁶  This law targets behavior which is either:

• fornication (i.e., intercourse), exposure of the genitals, or “any other act of gross lewdness” if the circumstances are such that a person should know those acts “will likely cause affront or alarm”; or
• purposely performed in front of a child less than 16 years old.

As a general matter, a violation of the indecent exposure law is a misdemeanor.  However, if a person performs a sex act in front of a child who is 12 years old or younger, or if a person has previous convictions for indecent exposure in New Hampshire or elsewhere (for similar offenses), then the person can be prosecuted for a felony.⁸⁷

What kinds of activities are forbidden in public?

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex—whether the sex is between people of the same-sex or of a different-sex.  But socializing and expressions of same-sex affection between adults that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs.  No one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, toe-tapping or other non-sexual touching.

Sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands.  It all depends on the circumstances.  For example, a person secreted in a private area, far off of a path behind bushes, or beyond fenced areas, has demonstrated by his or her actions a lack of intent to be seen by others, and can argue the circumstances are such that there was no reason to know his or her activities would cause shock or alarm.  Or activity may take place in a cruising area where there is a reasonable expectation that the people present would not be alarmed by or take offense to the activity. 

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business.  For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues.  Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas—sometimes in uniform and sometimes as undercover decoys.  Either way, a person can be charged with a violation of the sex laws.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.⁸⁸  However, if the person is in a position of authority it can be 18.⁸⁹

Does New Hampshire have a “sex offender registry” type of law?

Yes.  Every state now has such a law, although the terms differ from state to state.

What types of crimes are deemed to be “sex offenses?”

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children. A single conviction under the indecent exposure law is not a registrable sex offense. But if you have been convicted under that law of performing a sex act in front of a child who is 12 years or younger, or you have previous convictions for indecent exposure in New Hampshire or elsewhere, you are deemed to be a sex offender.⁹⁰

How can I find out what charges I have been convicted of?

You can contact the New Hampshire Department of Public Safety, Division of State Police, Central Repository for Criminal Records, 10 Hazen Dr., Concord, NH 03305; (603) 271-2538.  They have their own form, which you must have notarized, and you must pay a $10 fee.  You may request your records in person or by mail.

What obligations are imposed on “sex offenders”?  What information is available?

A sex offender must report his or her mailing address and residential address within 30 days of release of custody or of moving to New Hampshire, and then again every year.  Some will have to do so more often.  In addition, sex offenders must inform the Department of Safety whenever they move, change their name or if they are using an alias.  All convicted offenders are registered with the Department of Safety when the Department receives information about a conviction.⁹¹

A convicted sex offender must register for a minimum of ten years and some must do so for life, especially if their crime involved children or if they have multiple convictions.⁹²

The State Police also maintain a separate list of people convicted of certain offenses (including of the indecent exposure law where the exposure is before someone 12 or younger, or where there are multiple convictions for this or a like offense in NH or elsewhere).

The information recorded includes personal data, i.e., the name and address of the individual and the offense for which the individual was convicted (and when and where the individual was convicted).  If the information is available, then the list will also include a physical description or photo of the person, information about other convictions and a profile of the victims. 

All of this information is updated and sent monthly to local law enforcement agencies, who then make the information available to “interested members of the public upon request.”⁹³  Among other things, a person may request information about a specific named individual or about all listed individuals residing in a specific city or town.⁹⁴

Police Harassment

I am often told by police to “move along” from public areas.  Is that legal?

Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity.  Public places belong to everyone.  Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.⁹⁵

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may of course approach a person, and make inquiries when they suspect a person has committed, is committing, or is about to commit a crime.⁹⁶  But even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested without probable cause to believe the person committed a crime. 

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.⁹⁷

According to the New Hampshire Supreme Court, such a brief detention is a permissible intrusion on a person’s liberty when the police officer can point to specific and articulable facts which, taken together with all rational inferences from those facts, warrant the intrusion.  A hunch is not enough.⁹⁸

An arrest can only occur upon “probable cause” that a crime has been committed.⁹⁹

What can I do if I believe I have been improperly treated by the police?

There are several places you can call to discuss your options.  One is GLAD at (800) 455-GLAD.  Another is the NH Civil Liberties Union at (603) 225-3080. 

Complaints may be made to any individual police department for matters concerning its officers.  In addition, you may contact the 24-hour hotline operated by the Attorney General’s Office at (603) 271-1241.

Complaints to the New Hampshire State Police may be made to State Police Headquarters, over the telephone or in writing.  A supervisor will call back the complaining person to further process the complaint.  If the State Police act further on the complaint, the complainant will have to come into the office to make a written statement.  Contact State Police Headquarters, 10 Hazen Dr., Concord, NH 03301, (603) 271-2575.  Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals.

People can also file complaints with the Attorney General’s Office, Criminal Division at (603) 271-3658.  They may participate in an investigation or refer a matter back to the chief of the particular police department at issue.

Footnotes

⁷⁹NH RSA 651:6 I-g
⁸⁰NH RSA 651:6, II
⁸¹NH RSA 354-B:1
⁸²NH RSA 354-B:2, II; B:5
⁸³NH RSA 354-B:3
⁸⁴NH RSA 354-B:4
⁸⁵See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111MygRBc:e1999565:
⁸⁶NH RSA 645:1
⁸⁷NH RSA 645:1, II, III
⁸⁸NH RSA 632-A:3 (sexual “penetration” of person under age 16 is a felony); State v. Berry, 117 N.H. 352, 373 A.2d 355 (1977)(statutory rape when sexual activity occurs with person under age 16)
⁸⁹NH RSA 632-A:2 I(k)
⁹⁰For a full list of sex offenses, see NH RSA 651-B:1
⁹¹NH RSA 106-B:14
⁹²NH RSA 651-B:6
⁹³See generally NH RSA 651-B:7
⁹⁴NH RSA 651-B:7, IV
⁹⁵Kent v. Dulles, 357 U.S. 116, 126 (1958);  see generally NH Const., pt. 1, art. 19 (Searches and Seizures Regulated)
⁹⁶NH RSA 594:2
⁹⁷State v. White, 119 N.H. 567, 571-572, 406 A.2d 291 (1979). Terry v. Ohio, 392 U.S. 1, 16 (1968)
⁹⁸See e.g. State v. Maya, 126 N.H. 390, 493 A.2d 1139 (1985)(three minute investigative stop in which officer did not more than preserve the status quo did not violate art.19 since three minutes is the minimal time for establishing identity and assessing the plausibility of a person’s story)
⁹⁹See NH RSA 594:10 (police can arrest without warrant if probable cause to believe misdemeanor offense committed in officer’s presence, or if person will destroy evidence of misdemeanor crime, and may arrest if reasonable grounds to believe a felony has been committed).  “Reasonable grounds” is the same as “probable cause.”  State v. Vachon, 130 N.H. 37, 533 A.2d 384 (1987)

Questions & Answers (Accurate as of June 2, 2011)

Marriage & Civil Unions

Can same-sex couples marry in New Hampshire?

Yes.  On June 3, 2009, the New Hampshire General Court approved and Governor Lynch signed a marriage equality bill (House Bill 436, An Act Relative to Civil Marriage and Civil Unions) that extended the right to marry to same-sex couples effective January 1, 2010.  At the insistence of the Governor, the legislature also passed two other bills (HB 73 and HB 310) which affirm religious freedom protections with regard to marriage.  In addition, the legislation ended the ability of same-sex couples to enter into New Hampshire civil unions on the same effective date and will automatically convert any existing New Hampshire civil unions into marriages effective January 1, 2011.

New Hampshire is now the fifth state that permits same-sex couples to marry—Massachusetts, Connecticut, Iowa, and Vermont (beginning September 1, 2009) are the other four.

The process for getting married in New Hampshire basically requires the following basic steps:

1. an eligible couple submits an application for a license in any town or city in New Hampshire⁴⁰;
2. the couple must pay the applicable fee and receive a marriage license from the clerk;
3. the couple must have the marriage solemnized (i.e., have a ceremony) within 90 days of filing the application⁴¹
4. once the ceremony has been performed, the person who performed it has 6 days to send the license back to the city or town where it was issued⁴²; and
5. the clerk will then file the original, and the couple can receive an official certificate of their marriage.

The detailed process for getting married in New Hampshire, whether you should enter a marriage, and what it all means are questions that are addressed in GLAD’s How To Get Married In New Hampshire.

Can New Hampshire same-sex couples get married anywhere else?

Yes.  Within the United States, it is now possible for same-sex couples to legally marry in Massachusetts, Connecticut, Vermont, Iowa and the District of Columbia.  None of the these states has a residency requirement for marriage, although they all have a residency requirement for divorce.  GLAD has publications with detailed information about how to get married in any of the New England states where same-sex couples can marry at , and Lambda Legal (www.lambdalegal.org, 312-663-4413) has information about getting married in Iowa at Iowa Marriage Also contact Lambda legal for information about getting married in the District of Columbia.

Canada allows same-sex couples to marry and has no residency requirement.  For information about Canada see GLAD’s publication What Do I Need to Know About Getting Married in Canada?

In addition, the Netherlands, Belgium, Spain, South Africa, Norway and Sweden allow same-sex couples to marry, but for the most part each of these countries has requirements that make it difficult for non-citizens to marry.

How will the marriage of a same-sex couple be respected?

New Hampshire will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a New Hampshire marriage will be respected as a marriage in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, the District of Columbia, and probably in New York, Maryland and New Mexico - even though those states do not allow same-sex couples to marry. It will be respected as a civil union in New Jersey.

However, because of the 1996 federal Defense of Marriage Act (DOMA), the federal government will not respect the marriage of any same-sex couple, and so married same-sex couples will not have access to the 1138 federal laws that pertain to marriage. 

On March 3, 2009, GLAD filed a federal lawsuit, Gill et al. v. OPM et al., to challenge Section 3 of DOMA in the United States Court of Appeals for the First Circuit and on November 9, 2010 filed its second DOMA challenge, Pedersen et al. v. OPM et al., in Connecticut Federal District Court (see http://www.glad.org/doma for detailed information).  Should GLAD succeed in these lawsuits, or should Congress repeal DOMA Section 3, some or all of the federal laws where marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected. 

What is happening with New Hampshire’s Civil Unions?

Effective January 1, 2010, New Hampshire no longer issues civil union licenses, but it will continue to recognize civil unions (and comprehensive state domestic partnerships such as those from California, Oregon, Washington State and Nevada) and provide those couples with all of the protections and responsibilities of marriage under New Hampshire state law.

Couples in a New Hampshire civil union have until January 1, 2011, to apply to the city or town clerk where their civil union is recorded to either get married or to have it legally designated and recorded as a marriage without needing to go through a marriage ceremony or to pay any fee⁴³.  Effective January 1, 2011, any existing New Hampshire civil unions that have not been annulled or dissolved will be converted into marriages by operation of law⁴⁴. Civil Unions from other states will not be converted into marriages, but will be recognized and afforded all the same state protections and responsibilities as marriage.

For additional information about New Hampshire marriage and civil unions see GLAD’s publication, How To Get Married In New Hampshire, at New Hampshire Civil Unions, .

Legal Protections for Same-Sex Couples

What steps can a couple take to safeguard their legal relationship in New Hampshire without joining in a marriage or civil union?

1. Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law, but it is important to note that the New Hampshire Supreme Court has not yet ruled on the subject. A number of other states have found such agreements enforceable, including Massachusetts.⁴⁵
2. Durable Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial and/or matters in the event the one becomes incapacitated or disabled.⁴⁶ If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney must be signed and notarized.
3. Advance Directive for Health Care: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must create an “advance directive” which includes durable powers of attorney and living wills for health care if they wish a person other than immediate family to make those medical decisions. Under state law⁴⁷, a person may appoint a health care “agent” to make those decisions for him or her upon incompetence, i.e., when the person no longer able to do so.⁴⁸ People should give a copy of the advance directive for health care to their doctors and should also consider giving it to family members. Within this document, a person can also deal with end of life issues. New Hampshire law permits a person to make advance decisions about artificial nutrition and hydration as well as life sustaining treatments without which the person would die.⁴⁹ The advance directive for health care must be signed by the person giving the power of attorney and two witnesses (not including the agent, the person’s spouse or heir, a beneficiary under the person’s will or trust, or more than 1 employee of the person’s health care provider).⁵⁰ It cannot be revoked except by the person who gave the power of attorney.⁵¹ If a guardian is later appointed for a person, the Court presumes the power of attorney for health care remains in the best interests of the person who gave it unless there is clear and convincing evidence to the contrary.⁵²
4. Will: Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.
5. Funeral Planning Documents: Upon death, a person’s body is given to his or her next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. To avoid confusion and persuade relatives to honor the deceased’s wishes, a person can leave explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements. While this document does not have to be respected, it should help avoid complications in any but the most adversarial families. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.
6. Guardianship: New Hampshire’s broad guardianship laws allow, among other things, an individual to nominate another person as the guardian of their person, estate, or both.⁵³ The advantage of nominating a guardian in advance is that you are selecting the person to take over all aspects of your financial matters.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting an advance directive for health care with specific instructions from you about health care.

If a couple separates, what is the legal status of a Relationship/Partnership Agreement/Contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it.

If a person changes his or her mind about who should be his or her attorney-in-fact under a durable power of attorney; or health care agent; or beneficiary or executor under a will; or funeral planner, then those documents should be revoked — with notice to anyone who was given copies of those documents. New documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes. In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which were previously limited to married spouses. Some states, cities and towns have also enacted domestic partner laws. In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” For more information, See GLAD publications on domestic partnership for further information.

Does New Hampshire provide domestic partner benefits to state employees?

In May 2006, the Merrimack County Superior Court ruled in Bedford and Breen v. New Hampshire Technical College System, a case filed by GLAD, that the denial of insurance and leave benefits to the families of two New Hampshire state employees constituted both disparate treatment and disparate impact violations of the New Hampshire law against sexual orientation discrimination in employment. Although the State of New Hampshire appealed this case to the New Hampshire Supreme Court, the State dropped its appeal in May 2007, in light of the passage of the civil union law, which requires that civil union spouses of state workers be provided access to health benefits, and the collective bargaining decision to extend benefits to the domestic partners of state workers.

Can cities and towns in New Hampshire provide domestic partner health insurance benefits to their own employees?

Yes, and some do. Also, like state workers, municipal employees who are in a civil union can obtain health benefits for their civil union spouse.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners any benefits they wish — whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay income tax on the value of his or her partner’s health insurance benefits, but a spouse does not.⁵⁴ And for pensions, a domestic partner has the no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right. In addition, an employee can change his or her beneficiary designation without the domestic partner’s consent or knowledge.

Adoption

Can a single gay individual adopt a child in New Hampshire?

Yes. Although New Hampshire had a ban on gay people adopting or foster parenting children for many years, those laws were repealed in 1998.⁵⁵

Can same-sex partners together adopt a child in New Hampshire?

The question of joint or second parent adoption by a same-sex couple is not addressed expressly by the New Hampshire statutes on adoption or by any authoritative ruling by the state supreme court, though the New Hampshire Supreme Court rejected a petition to jointly adopt by a divorced heterosexual couple in 1987.⁵⁶ Second parent adoptions have been granted at the lower court level in Belknap, Carroll, Coos, Rockingham, Strafford and Sullivan Counties, but have generally been denied in Cheshire, Grafton, Hillsborough, and Merrimack Counties.⁵⁷ If you have been denied a second parent adoption by a New Hampshire court, please contact GLAD.

For couples who have a marriage or civil union, New Hampshire law allows step-parent adoptions⁵⁸. Note: For more information about both adoption and second parent adoption see Adoption Questions And Answers.

Do we need to do a second-parent adoption if we are married or have a civil union?

A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple. While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Relying on a partner’s good will, or even on the fact that a child was born into a civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt.,2006), cert. denied, 127 S.Ct. 2130 (2007); Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88 (2006), cert. denied 128 S.Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.

In November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant has been issued. 

Although there have been further attempts to overturn this order, so far they have been unsuccessful, but Janet and the child have still not been located.  For more information about the case, go to http://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins. 

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

These are tricky cases, but the New Hampshire courts have recognized they have the power to grant visitation rights to a person who is not an immediate family member if it is in the best interests of the child.⁵⁹ This logic has been applied to allow separating lesbian co-parents to have their visitation disputes heard in court.⁶⁰

Given recent developments in this area of law at the United States Supreme Court level, a court cannot allow visitation simply because it thinks visitation is in the child’s best interests: the court will need to ascertain whether there are special factors which justify the court overriding a fit parent’s choice to refuse contact.⁶¹

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. For more information, See GLAD’s publication, Protecting Families: Standards for Child Custody in Same-Sex Relationships.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

• Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court. Note also that New Hampshire has a specific law about surrogacy. It prohibits payment of a fee to surrogates, other than expenses like lost earnings or medical expenses due to pregnancy and attorney’s fees and court costs.⁶² It also imposes mandatory contract terms on surrogacy agreements, and makes it clear that the surrogate may keep the child in certain specified circumstances.⁶³
• Co-guardianship: This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention and health insurance for the child and in all other ways act with the legal authority of a parent.⁶⁴ The best interest of the child standard controls appointments of guardians.⁶⁵ The guardian must annually file a report on the minor’s welfare.⁶⁶ This status is not permanent, and any person, including the legal parent, may petition to have a guardian removed.⁶⁷
• Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

The New Hampshire Supreme Court has not yet squarely addressed this issue. States around the country are split on the issue, with a majority deciding the issue based on whether there is evidence of direct harm to the best interests of the child because of the parent’s sexual orientation, and some others assuming harm. As a matter of logic and experience, a parent’s sexual orientation should not in itself be grounds for denying custody or visitation.

One state Supreme Court case addressed the fact of gay parenting in the context of a constitutional challenge to New Hampshire’s now-repealed law forbidding gay people from adopting. The opinion is from an era in which fear of AIDS was rampant, and the opinion did not directly address the issue of how a parent’s sexual orientation would influence a custody contest between two parents. In the case, known as Opinion of the Justices, the court reasoned that the state’s adoption ban was permissible because of the state’s interest in providing for the “health, safety and proper training for children.”⁶⁸ It reasoned further that parents are the primary role models for children and having a gay parent could influence a child’s sexual identity.⁶⁹ But the Court drew a distinction between children in state-approved or state-licensed adoption and foster care programs for whom the State had a special responsibility, and children in already existing families. In the Court’s words, “this opinion is not meant to suggest that the State might have ... authority to delve into the privacy of existing ... custodial relationships.”⁷⁰

What are the factors for making custody determinations generally?

In a divorce, the court treats the parents as equals and encourages the parents to create a “parenting plan” that allows both parents to share in the rights and responsibilities of raising their children.⁷¹  A court may also award visitation or custody to step-parents or grandparents.⁷²

The court’s decisions are based on the best interest of the child standard and the safety of the parties.⁷³  The court may appoint a guardian ad litem to represent the best interests of the child.⁷⁴

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child. Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model. Or a parent may argue that the ex’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child. Contact GLAD for further resources.

Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?

It can make a difference with respect to future modification of court orders for custody. People can seek to modify permanent court orders for custody in a number of circumstances, including when “clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment.”⁷⁵ If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that the circumstances surrounding the child’s welfare have changed and that the custody issues should be litigated anew. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

Can a court keep my kids from visiting when my partner is present?

The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation. But unless the partner is causing harm to the child — a very high standard — visitation should not be restricted.

Domestic Violence

What is domestic violence?

Under the law, “abuse” covers a variety of activities. These generally include:

• attempting to cause, or recklessly or purposely causing bodily injury or serious bodily injury;
• placing another in fear of imminent bodily injury or attempting to do so by physical menace or threats;
• attempting to or engage in involuntarily sexual relations under threat or force;
• in some circumstances, attempting to or committing kidnapping, criminal restraint or false imprisonment;
• attempting to or in fact destroying the property of a person eligible for protection under the domestic violence laws;
• attempting to or in fact entering onto a person’s property when not authorized to do so where that person is eligible for protection under the domestic violence laws;
• repeated communication with the purpose to annoy or alarm another.⁷⁶

Do the domestic violence laws apply to people in same-sex relationships?

Generally yes, spouses and ex-spouses in marriages and civil unions are explicitly covered and most other same-sex relationships are covered. “Abuse” includes the acts defined above if they occur between people who are:

• “family or household members” — including people who live together or formerly did so; and
• “current or former sexual or intimate partners” — which includes people who are presently or were formerly in a romantic relationship, regardless of whether or not the relationship was “sexually consummated.”⁷⁷

How do I get a court order protecting me from an abusive partner?

You can get a protective order from the District Court in the town where you or the abuser lives, as well as the Superior Court in the county where you or the abuser lives. If you live in Rockingham County or Grafton County, you must go to the Family Division Court. If you have fled your home, you can go the court closest to your temporary home. Note that the Court will keep your address confidential — you need to let them know if you move so they know how to contact you.

To apply for a protective order, ask the clerk of the court for a Domestic Violence Petition. Simply write down what happened to you as clearly and in as much detail as possible. You must include the date, the time and the location of the important facts about the abuse. You will have to swear what you have written is true, so don’t guess about something if you don’t know for sure. Ask for additional pages to write down all of the facts, past and present, of abuse that you can think of.

If you ask for emergency orders, the clerk will take the papers to a judge. If you see the judge, just tell him or her simply and honestly what happened to you and why you are in danger. If the judge finds that you are in danger, he or she may immediately issue temporary protective orders, directing the abuser no to abuse you and not to enter your residence, workplace or school. The court may also issue an emergency order granting you temporary custody of your children and ordering the abuser to turn over to a peace officer any guns or other deadly weapons he or she could use to harm you. You will get a copy of the order from the clerk of court and you should keep it with you at all times.

A copy of the protective order will be sent to the Department of Safety by computer. The State Police must make information regarding the protective order available to your local police and Sheriff. The local police must promptly serve your abuser with a copy of the temporary protective order. There is no charge for this service, and the orders are in effect state-wide in New Hampshire.

What can I do if the courts are closed?

If you are in immediate danger of abuse and no court is open, you may get an emergency protective order by contacting the nearest police department. A police officer can help you fill out the forms and will contact a judge by telephone. Everything said in response to the above question remains true about how the process works. The one difference is that an order issued over the telephone will only be effective until the close of business on the next regular court business day. For the protection order to remain in effect, you must go to the nearest District, Family or Superior Court before the close of the next business day to ask for a new protective order.

What happens after I obtain a temporary order?

A full hearing will be heard on your petition within 30 days of when you file it or within 10 days of the date the petition is served on your abuser, whichever is later. The abuser may also ask for a hearing within 3 to 5 days, which you must attend.

You have the right to bring a lawyer to represent you at the hearing. It is a good idea to see a lawyer if you think custody or child support will be disputed, or if you have been severely injured or expect an injury to last a long time.

Where can I go to get help?

If you cannot afford a lawyer, a domestic violence program in your area may be able to refer you to a lawyer who will do the case for free. The DOVE Project (Domestic Violence Emergency Project) of the New Hampshire Bar Association can provide referrals. Contact them at (866) 644-3574, or http://www.nhbar.org. Their mailing address is 2 Pillsbury Street, Suite 300, Concord, NH 03301-3502.

Does domestic violence play a role in custody decisions?

Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that a parent should not be presumed to be entitled to joint legal custody, as discussed above.⁷⁸ As “parental conduct,” it is also a factor that will affect the analysis of what is in the best interests of the child.

Footnotes

⁴⁰ NH RSA 457:22
⁴¹ NH RSA 457:26.
⁴² NH RSA 5-C:49, I
⁴³ NH RSA 457:46, I
⁴⁴ NH RSA 457:46, II
⁴⁵ See Wilcox v. Trautz, 427 Mass. 316 (1998)
⁴⁶ NH RSA 506:6
⁴⁷ NH RSA 137-J
⁴⁸ NH RSA 137-J:2, III
⁴⁹ See NH RSA 137-J:20
⁵⁰ NH RSA 137-J:14
⁵¹ NH RSA 137-J:15
⁵² NH RSA 137-J:21
⁵³ NH RSA 464-A:10
⁵⁴ See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)
⁵⁵ NH RSA 170-B:4 (permitting an “unmarried adult” to adopt)
⁵⁶ In Re Jason C., 129 N.H. 762, 533 A.2d 32 (1987).  The court read the absence of any procedure for custody determinations within the adoption process to indicate that the legislature did not intend to grant adoptions under these circumstances.  The court’s determination also turned on the fact that allowing a divorced couple to adopt jointly would not further the legislature’s intent to limit adoption to applicants who would most likely provide a unified and stable household for the child—an intent that would be fulfilled by a committed same-sex couple seeking to adopt together
⁵⁷ AnnMarie Timmins, Adoption Law Is Up For Interpretation, Concord Monitor, Apr. 10, 2006, at http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20060410/REPOSITORY/604100308
⁵⁸ NH RSA 170-B:4, IV
⁵⁹ Roberts v. Ward, 126 N.H. 388, 392, 492 A.2d 478, 481 (1985)
⁶⁰ See e.g. P.B. v. P.D.R., Merrimack (N.H.) Super. Ct., No. 94-M-615, Order (Sept. 21, 1994)(permitting visitation for non-biological lesbian mother over biological mother’s objection); Comeau v. Grondin, Stafford (N.H.) Super. Ct., No. 94-M-1161, Order on Defendant’s Motion to Dismiss (Apr. 11, 1995) (allowing lesbian co-parent into court to make visitation claim)
⁶¹ Troxel v. Granville, 120 S.Ct. 2054 (2000)(plurality)
⁶² NH RSA 168-B:25, V
⁶³ See NH RSA 168-B:25, I-IV
⁶⁴ See NH RSA 463:10 (allowing appointment of appropriate persons, including “co-guardians may be appointed when in the best interests of the minor”), 12 (rights of guardian)
⁶⁵ NH RSA 463:8
⁶⁶ NH RSA 463:12
⁶⁷ NH RSA 463:14-16
⁶⁸ 129 N.H. 290, 296, 530 A.2d 21, 24 (1987)
⁶⁹ 129 N.H. at 296-98, 530 A.2d at 25-26
⁷⁰ Id. at 298, 530 A.2d at 27
⁷¹ NH RSA 461-A:2
⁷² NH RSA 461-A:6, V
⁷³ Place v. Place, 129 N.H. 252, 525 A.2d 704 (1987); See also, NH RSA 461-A:6, I
⁷⁴ NH RSA 461-A:6, VI
⁷⁵ NH RSA 461-A:11, I (c)
⁷⁶ NH RSA 173-B:1, I
⁷⁷ NH RSA 173-B:1, II
⁷⁸ NH RSA 458:17, II (c)

Questions & Answers (Accurate as of December 2, 2009)

Does New Hampshire have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes. On Jan. 1, 1998, New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing came into effect. It only took three years to pass in the Legislature and had the support of the Roman Catholic Church.¹

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes, the law explicitly protects people perceived to be gay. The non-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality.” ² While the courts have not ruled on the meaning of the “perceived” language, it should mean, for example, that a person who is fired even while they are closeted, or because they are perceived to be gay (whether they are or not), may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically. But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian or perceived them to be so.

Employment

What does the law forbid? To whom does the law apply?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees. It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation.³ This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly-situated co-workers.

The law also applies to labor organizations (e.g. unions) and employment agencies.⁴

The equal employment opportunity program of the State Division of Personnel must ensure that the State employs qualified people regardless of sexual orientation.⁵ Moreover, the State is forbidden from discriminating in the classified service with respect to sexual orientation.⁶

As broad as the law is, there are several exemptions:

• The law does not apply to an employer with fewer than 6 employees. An employer’s spouse, parent, or child do not count as employees.⁷
• The law is not applicable to an employer which is a non-profit social club or a fraternal or religious association or corporation.⁸ Effective July 1, 2006, New Hampshire amended the definition of “employer” to include non-profit educational and charitable institutions.
• There are no general occupational exemptions from the reach of the non-discrimination law. But an employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-gay.⁹ While that defense is allowed in the law, it is strictly applied and very rarely successful.¹⁰

Does New Hampshire law forbid sexual harassment?

Yes, sexual harassment is expressly prohibited by state law:

“Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitutes sexual harassment when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment.”¹¹

Can a gay person be sexually harassed?

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.” Both types of harassment can happen to the same person, and both are forbidden.

The United States Supreme Court and other federal courts have found same-sex sexual harassment to violate sexual harassment laws.¹² Several state courts have reached the same result under their state non-discrimination laws.¹³

Public Accommodations

What is a “place of public accommodation”?

A place that caters or offers its services or facilities or goods to the general public is a place of public accommodation subject to the non-discrimination laws.¹⁴ Many types of places can be public accommodations, ranging from a motel, restaurant, rest area, highway or hospital.

What does the law say about discrimination in places of public accommodation?

Such places may not refuse, withhold or deny accommodations, advantages or facilities and privileges of the place of public accommodation because of a person’s sexual orientation.¹⁵

Housing

What is prohibited by the housing anti-discrimination law in New Hampshire?

The housing laws are intended to prohibit discrimination by those engaged in most aspects of the business of listing, buying, selling, renting or financing housing or commercial structure, whether for profit or not.¹⁶ Most often, these claims involve a refusal by an owner, landlord or real estate broker to sell, or lease, or even negotiate with a person about the housing they desire to obtain. But other practices are forbidden, too, such as:

• misrepresenting the unavailability of a place when it is in fact available;¹⁷
• applying different terms or conditions based on sexual orientation;¹⁸
• printing or circulating discriminatory notices or advertisements;¹⁹
• evicting a tenant solely on the ground that he or she has AIDS or is regarded as having AIDS;²⁰ and
• making mortgage and real estate loans on a discriminatory basis,²¹ i.e. a form of credit protection.

There are several exemptions to the housing laws.

• A person who owns only one single family house may discriminate if they sell or rent the house without using the sales or services of any broker (or like person) and without circulating any discriminatory ads or notices.²²
• An owner who lives in 3-family, 2-family or 1-family unit is exempt from the law with respect to the rental of the other units.²³
• An owner may discriminate in the rental of rooms as long as they rent not more than 5 rooms and the owner lives in the dwelling.²⁴
• Religious organizations and organizations supervised by religious organizations which do not rent or sell for commercial (i.e., profit) purposes, may give preference to persons of their same religion (with some exceptions).²⁵
• Private clubs which provide lodging for their members and not for profit may limit its rentals to such members, or give preference to its members.²⁶

Credit

There are no specific credit protections other than those related to mortgage and real estate loans discussed above.

Services

The patient’s bill of rights now includes the right to receive appropriate care without regard to “sexual orientation.”²⁷ The same protections apply to home health care providers.²⁸

Transgender/Gender Identity Discrimination

What protections exist for transgendered people under the discrimination laws?

There is no explicit protection in the law for transgendered persons in New Hampshire. However, even absent explicit protection, in some cases, an individual’s gender identity may be regarded as “a gay issue” by a person or entity which is discriminating, and therefore allow a person to bring a sexual orientation claim.

In addition, in some cases a transgendered person may have a claim of sex discrimination if he or she is adversely treated at work, or in housing, or in a place of public accommodation, or in a credit transaction. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim.²⁹ For more information, see GLAD’s publication Transgender Legal Issues in New England.

Pursuing a Complaint

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes. The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation as well as because of age, sex, race, color, marital status, physical or mental disability, religious creed or national origin.³⁰ (Note, the housing non-discrimination laws also protect people based on their “familial status.”)

How do I file a complaint of discrimination?

You may file a complaint with the New Hampshire Commission on Human Rights (“CHR,” or “Commission”), 2 Chennel Drive, Concord, NH 03301. Information is available from (603) 271-2767. The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.³¹

Do I need a lawyer?

You do not need a lawyer at the CHR because the process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the legal process, whether at the CHR or otherwise. Not only are there many legal rules governing the CHR process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the CHR within 180 days of the discriminatory act or acts.³² There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims. The Attorney General can also file claims of discrimination.

What happens after a complaint is filed with the CHR?

The CHR assigns an investigator to look into your case, who may as part of the investigation send out written questions (interrogatories) to be answered under oath or request documents from the parties. If the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further and the respondent will be asked to answer the complaint. After more discovery by the parties of each other’s positions, the Commission can hold a trial type hearing before 3 Commissioners. At that hearing, a person can be represented by a lawyer for the Commission or a private attorney.³³ A losing party can appeal to the Superior Court, and a winning party can file a case in Superior Court requesting enforcement of any CHR orders.

If the Commission does not find probable cause, a complainant may appeal to the Superior Court and must then show that the Commission’s decision is unlawful or unreasonable by a clear preponderance of the evidence.³⁴

What are the legal remedies the NHCHR may award for discrimination if an individual wins his or her case there?

Whether a case involves employment, housing or public accommodations, the Commission may order the respondent to cease and desist from the unlawful conduct. The CHR may also order a respondent to do something affirmatively, such as hire, reinstate or upgrade an employee, restore a person to a labor organization, or extend a person the full advantages of a place of public accommodation. Employees may receive back pay, and all victims of discrimination are eligible for compensatory damages, including emotional distress damages. Finally, the Commission may impose an administrative fine (payable to the State), of up to $50,000 depending on how many past offenses the respondent has committed.³⁵

Note that if a person’s complaint is dismissed, and deemed frivolous, a respondent may seek to collect its reasonable costs and attorney’s fees from the complainant.³⁶

Are there other agencies at which I can file a complaint for discrimination?

You may have other places to turn, but it depends on the facts of your particular situation. This publication concerns only New Hampshire non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law. For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation. Thus, a gay person with HIV who is fired from a job can file with the CHR (for sexual orientation and disability discrimination) as well as the Equal Employment Opportunity Commission (for disability discrimination). To file claims under federal law, the employer must have at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with the CHRO, then the time limit for filing with the EEOC is extended to the earlier of 300 days or 30 days after CHRO has terminated the case. This does not, however, extend the 180 day limit for filing with the CHRO. (People who work for federal agencies are beyond the scope of this publication.)
3. State or Federal Court: After filing with the EEOC, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. When claims of discrimination based on state law are removed from the CHR and filed in state superior court, either party may request a jury trial and the court may order the same relief as would the CHR.³⁷

For cases alleging violation of state non-discrimination laws, once a person has completed the CHR process, a party may file a new case in court to review the CHR decision or to seek enforcement of a CHR order.³⁸

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who oppose unlawful conduct, or who have filed a complaint, testified, or assisted in any proceeding.³⁹

What can I do to prepare myself before filing a complaint of discrimination?

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). It is also helpful to have a list of witnesses and other possible victims of discrimination. Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

¹ See Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997
² NH RSA 354-A:2, XIV-a
³ NH RSA 354-A:7, I
⁴ NH RSA 354-A:7, II, III
⁵ NH RSA 21-I:42, XVI
⁶ NH RSA 21-I:52, I
⁷ NH RSA 354-A:2, VI, VII
⁸ NH RSA 354-A:2, VII
⁹ NH RSA 354-A:7, I, II, III
¹⁰ See, e.g., Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983)
¹¹ NH RSA 354-A:7, V
¹² Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Drew v. First Sav. of N.H., 968 F. Supp. 762 (D.N.H. 1997) (acknowledging claim under federal law which failed on the facts presented); King v. Town of Hanover, 959 F.Supp. 62 (D.N.H.  1996) (acknowledging claim under federal law)
¹³ Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)
¹⁴ NH RSA 354-A:3, XIV
¹⁵ NH RSA 354-A:17
¹⁶ NH RSA 354-A:10
¹⁷ A:10, IV
¹⁸ A:10, II
¹⁹ A:10, III
²⁰ A:10, VI
²¹ A:10, VII
²² NH RSA 354-A:13, I-a
²³ NH RSA A:13, I-b
²⁴ NH RSA A:13, I-c
²⁵ NH RSA A:13, II
²⁶ NH RSA A:13, III
²⁷ NH RSA 151:21, XVI
²⁸ NH RSA 151:21-b, II-b
²⁹ See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989);  Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000)
³⁰ NH RSA 354-A:7
³¹ NH RSA 354-A:21
³² NH RSA 354-A:21, III
³³ See generally NH RSA 354-A:21
³⁴ NH RSA 354-A:21, II-a
³⁵ NH RSA 354-A:21, II-d
³⁶ NH RSA 354-A:21 II-f
³⁷ NH RSA 354-A:21-a
³⁸ NH RSA 354-A:22, I
³⁹ NH RSA 354-A:19.  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim of gay man)

Questions & Answers (Accurate as of January 31, 2012)

Harassment and Discrimination at School

Are there any laws protecting gay and transgender students in Connecticut?

Yes.  Conn. Gen. Stat. 10-15c was amended in 1997 to add “sexual orientation”  and in 2011 to add “gender identity or expression” to the list of characteristics upon which discrimination is forbidden in public schools.

It provides that:

“The public schools shall be open to all children five years of age and over… and each such child shall have, and shall be so advised by the appropriate school authorities, an equal opportunity to participate in the activities, programs and courses of study offered in such public schools, . . . without discrimination on account of race, color, sex, gender identity or expression, religion, national origin or sexual orientation . . .”

What kinds of conduct does the law cover?

Technically, the law addresses equal opportunity with respect to activities, programs and courses of study.  While a school would not likely say, “Don’t come here,” or “You can’t take track,” their actions may imply as much.  For example, if a school fails to redress pervasive harassment against you at the school generally or in a particular class or activity, this may violate the letter of the non-discrimination law.  At this time, the student rights law does not itself contain a mechanism for lawsuit based on violations of the law, but it may nonetheless prove to be the source of a private right of action.  In any event, the law is a powerful tool in advocating for change in a school to institute training programs and to deal with problems when they arise.

Are there other laws, which may protect me from discrimination and harassment because of my sexual orientation?

Possibly.  Under federal law, public schools, which receive federal funds, may not discriminate on the basis of sex.  Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX.  Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston.  You may also consult with an attorney and go directly to Court.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you.  That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified—usually a vice principal or Title IX coordinator.  You may wish to document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don’t help you or don’t follow through, you may wish to write to the superintendent and school board and ask them to end the discrimination.

At the same time, or after contacting the administration as set out above, you may want to send a copy of your complaint to the State Dept. of Education.  While they do not have an explicit policy on complaints and they have no obligations under the non-discrimination law, you could request that they intervene on your behalf.  Contact Office of Public Information, Conn. State Dept. of Education, 165 Capitol Ave., Hartford, CT 06145.  Their phone number is (860) 566-5677 and their website is http://www.state.ct.us/sde/.

If this fails, you may also wish to consider legal action against the city or town.  Contact GLAD for attorney referrals.

Does Connecticut have a law to protect students from bullying?

Yes, and the law improved significantly in 2011 with the passage of Public Act 11-232, An Act Concerning the Strengthening of School Bullying Laws.  Under this law, bullying is defined as:

• repeated written, oral or electronic communication or physical acts or gestures by one or more students directed at another student in the same school district, that
• causes physical or emotional harm or damage to his/her property, places the student in reasonable fear of being harmed, creates a hostile school environment, infringes on the student’s rights or substantially disrupts the education process or the school’s orderly operation

The Act explicitly lists “characteristics” (including sexual orientation and gender identity or expression) and includes as bullying conduct that targets a student’s actual or perceived characteristic or targets someone who associates with an individual or group that has or is perceived to have one or more of these characteristics.

By January 1, 2012, each school board must develop a “safe school climate plan” that:

• enables students to anonymously report acts of bullying
• enables parents to file written reports of suspected bullying
• requires school employees who witness bullying or receive reports of bullying to report it
• requires schools to investigate all reports of bullying
• has a prevention and intervention strategy
• requires in verified acts of bullying that both the parents of the bully and the parents of the victim be notified and told about the measures taken by the school to ensure the safety of the victim and to prevent further acts of bullying
• prohibits bullying on school grounds, at a school-sponsored or school-related activity, at a school bus stop or on a school bus, through electronic means (i.e. cyberbullying)
• prohibits discrimination and retaliation against an individual who reports or assists in the investigation of an act of bullying
• requires the school to notify the police about any acts of bullying that may constitute criminal conduct
• requires schools to maintain a publicly available list of the number of verified bullying incidents and to report this annually to the Connecticut State Department of Education
• requires all school employees to complete annual training on identifying, preventing and responding to bullying and to youth suicide

Gay/Straight Alliances

Do students have the right to form Gay/Straight Alliances in their schools even if the principal or community opposes it?

Students have several legal tools available if they wish to form a GSA or club.  A federal law known as the Equal Access Act provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings.  According to the law, school administrators must respond consistently to all requests for the formation and funding of extra-curricular clubs, even if they don’t agree personally with the content or think the community isn’t ready for it.  GLAD brought and won a case for students at West High in Manchester, New Hampshire on this very basis.  In addition, in some cases, First Amendment principles may be brought to bear on behalf of students wishing to form a club.

Footnotes

¹¹⁹ See http://www.cga.ct.gov/2011/act/pa/pdf/2011PA-00232-R00SB-01138-PA.pdf

Questions & Answers (Accurate as of January 31, 2012)

Hate Crimes & Violence

Does Connecticut have a hate crimes law?

Yes, Connecticut has two different types of hate crimes laws. In order to track hate crimes, the State maintains a reporting system so that incidents alleged are centrally recorded.¹⁰¹  In addition, Connecticut sets out a sliding scale of increased penalties for hate crimes based on actual or perceived race, religion, ethnicity, disability, sexual orientation and gender identity and expression depending on their severity.  See “An Act Concerning Intimidation Based on Bigotry or Bias.”¹⁰²

How does the law define what is a hate crime?

Before the law of “intimidation based on bigotry or bias” can be applied to any crime, it must be shown that the attacker acted (1) maliciously and (2) with specific intent (i.e., the attacker specifically chose to attack the person because of their personal characteristics of sexual orientation, gender identity or expression, etc.)

If those prerequisites are shown, the crime takes several forms.

1. Intimidation based on bigotry or bias is a Class C Felony when, in addition to the prerequisites above, the attacker “causes serious physical injury” to a person.
2. Intimidation based on bigotry or bias is a Class D Felony (less serious than Class C felony) when, in addition to the prerequisites above, the attacker (a) causes physical contact with another person, or (b) damages, destroys or defaces a person’s real or personal property, or (c) threatens to do either (a) or (b) as long as there is also reasonable cause to believe those threatened acts will occur. When no maliciousness can be shown, a person may nonetheless be liable as follows.
3. Intimidation based on bigotry or bias is a Class A misdemeanor (less serious than Class D felony) when, with specific intent (there is no maliciousness requirement here), the attacker intimidates or harasses a person or group of persons by (a) damaging, destroying or defacing any real or personal property, or (b) threatens to do so as long as there is also reasonable cause to believe those threatened acts will occur.

Note that actions toward a group—even if not a specific person—can trigger the misdemeanor statute.

Another provision of law allows enhanced penalties against people who are “persistent offenders” of crimes involving bigotry and bias.¹⁰³

There are also specific laws concerning desecration of religious sites and cross burning which are beyond the scope of this document.

How do I know if an attack was a hate crime?

Trust your gut and report to the police all the details of any possible hate crime.  If you leave out the details about bias, the police will have no way of knowing that the crime may be a hate crime.  Law enforcement officials tend to use the following as guideposts for determining whether or not a crime is a hate crime.

• Did the attacker use anti-gay language or epithets?
• Was the victim in an area associated with gay people (e.g. outside a gay bar or a cruising area)?
• Have there been similar crimes in the area?
• Did the attack occur regardless of economic motive (i.e., person attacked but not robbed)?

Where can I call if I think I’ve been a victim of a hate crime?

For help and referrals, call the Connecticut Women’s Education and Legal Fund (CWEALF) Hate Crimes Project which both records hate incidents and advocates for victims as well.  They can be contacted at (860) 247-6090 or Toll-Free (800) 479-2949.

Note that in a typical hate crimes case, the hate crimes violation may be charged along with another criminal statute (such as assault and battery, or assault and battery with a dangerous weapon, or assault with intent to murder and maim), which may be easier to prove.

What other options do I have if I think I have been the victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, or instead of going that route, you can pursue a civil action against your attacker if you have been injured or if your property has been damaged.¹⁰⁵  That action must be filed within ONE YEAR of the date of the acts about which you are complaining.  If you prevail in court, you can collect damages, and the judge may also decide to award triple damages, equitable relief (such as an injunction ordering the attacker to stay away from you) and attorney’s fees.

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act¹⁰⁶ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does Connecticut have a sodomy law?

No, Connecticut repealed its former sodomy law, and ever since 1969, acts between consenting adults in private have been legal.

If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

Gay people are subject to the full range of laws as are non-gay people, so sex in public, or with underage persons, or without consent, or with force, are all illegal.  Commercial sex, i.e., prostitution, is also illegal.

Most commonly, though, gay people are sometimes arrested for violating the “public indecency” law.¹⁰⁷ The law targets activity which occurs in a public place, whether it is (a) sexual intercourse, or (b) a “lewd exposure of the body with intent to arouse or satisfy the sexual desire of the person,” or (c) a lewd fondling or caress of the body of another person.

The million dollar question is:  what is public and what is private?  The law says a “public place” is “any place where the conduct may reasonably be expected to be viewed by others.” Id.  Most people arrested for sexual activity are arrested for activity occurring out of doors.  But sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands. It all depends on the circumstances.¹⁰⁸

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex—whether the sex is between people of the same-sex or of a different-sex. But socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs.  No one should be arrested or hassled for foot-tapping, hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business. For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas—sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with a violation of the sex laws.

Does Connecticut have a “sex offender registry” or “Megan’s” law?

Yes, every state now has such a law, although the terms differ from state to state.

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous predators, most of the crimes involve violence or children.  If a person is convicted of violating the public indecency law with someone who was under the age of 18 at the time, then that is a registrable “offense against a victim who is a “minor” under Connecticut law.¹⁰⁹

Specifically, persons who have been convicted or found not guilty by reason of mental disease or defect of a sex offense listed in Connecticut General Statutes 54-250 through 54-261 are required to register.

What if I was not actually convicted?  Or what if my conviction is very old?

The law only applies to people who were convicted of a sex offense either by a plea of guilty, a jury finding of guilt, or a plea of nolo contendere.¹¹⁰  Any disposition other than a conviction is not a “conviction” for purposes of this law.

The law reaches back in time so that any person convicted of a sex offense who has been released to the community on or after October 1, 1988 is subject to the law.¹¹¹

How can I find what charges I have been convicted of?

You can contact the Department of Public Safety, Attn:  Bureau of Identification, State Police, 1111 Country Club Road, Middletown, CT 06457 (860-685-8480).  For a form (DPS-846-C) and directions for obtaining a copy of your records, visit: http://www.ct.gov/dps/cwp/view.asp?a=2154&q=294426.  Send a self-addressed, stamped envelope with a $25 fee made payable to the Commissioner of Public Safety.  Also include a short letter explaining your request along with your name, date of birth, maiden name (if applicable) and any aliases.

What obligations are imposed on “sex offenders”?

Generally, sex offenders must register annually with the Department of Public Safety and provide their name, identifying factors, criminal history record, residence address, and treatment history for mental abnormality or personality disorder (if any).  Depending on the type of offense, registration is required for a period of at least 10 years and may continue for life.¹¹²

There are limited exemptions from the obligation to register.¹¹³

A person convicted of violating the public indecency law with a minor must register for 10 years, except the person must register for life if he or she has two or more convictions for any such offense.¹¹⁴

What information is publicly available about sex offenders?

In most instances, registration information is available to the public at the offices of the Department of Public Safety, 1111 Country Club Road, Middletown, CT 06457 (ph: 860-685-8060, email: sex.offender.registry@po.state.ct.us, http://www.ct.gov/dps/cwp/view.asp?a=2157&Q=294474 ).¹¹⁵

The information made public includes the person’s name, aliases, date of birth, State Police Bureau of Identification number, registration address, race, color of eyes and hair, sex, height, weight, identifying scars or marks or tattoos, date of registration, date last verified, and date and description of the crime.

In denying a challenge to the posting of information about non-dangerous sex offenders, the United States Supreme Court held in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), that non-dangerous sex offenders do not have a right to a hearing as to their dangerousness before their information is posted, and that further, because the relevant laws have nothing to do with whether the offender is dangerous, such a hearing even after the posting would be irrelevant.

According to the Department of Public Safety Connecticut Sex Offender Registry website:

“The registry is based on the legislature’s decision to facilitate access to publicly available information about persons convicted of sexual offenses.  The Department of Public Safety has not considered or assessed the specific risk of re-offense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the Registry is currently dangerous.  Individuals included within the registry are included solely by virtue of their conviction record and state law.  The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.”

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.¹¹⁶  But note that in some circumstances sexual acts with a person under age 18 is a criminal offense (e.g. contact where the actor is the person’s guardian or is otherwise responsible for the person’s welfare).

Police Harassment

I am often told by police to “move along” from public areas.  Is that legal?

Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity.  Public places belong to everyone, and are likely also places of public accommodation to which non-discrimination rules apply.  Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.¹¹⁷

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgender—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may of course approach a person, and make inquiries.  But the fact that a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, cannot, without more, justify an arrest.

If an officer has a “reasonable and articulable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.¹¹⁸  An arrest can only occur upon “probable cause” that a crime has been committed.

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers, and complaints to the Connecticut State Police may be made to Department of Public Safety, Attn:  Legal Affairs Unit, 1111 Country Club Rd., Middletown, CT 06457.  Their general number is (860) 685-8000.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals.

Footnotes

¹⁰¹ See Conn. Gen. Stat. sec. 29-7m
¹⁰² See Public Act 00-72 and Conn. Gen Stat. sec. 53a 181i-181l.
¹⁰³ Conn. Gen. Stat. sec. 53a-40a
¹⁰⁴ See e.g. Conn. Gen. Stat. sec. 46a-58
¹⁰⁵ Conn. Gen. Stat. sec. 52-571c
¹⁰⁶ See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111mi4H1U:e1999565:
¹⁰⁷ Conn. Gen. Stat. sec. 53a-186
¹⁰⁸ See, e.g. Connecticut v. Vega, 38 Conn. 313, 315 (1982)(exposure in front of apartment window seven feet above ground is public); Connecticut v. Cutro, 37 Conn. 534, 543 (1995)(masturbating in mall parking lot between 9:15 and 9:30 p.m. is public where defendant could be seen by person three cars away)
¹⁰⁹ Conn. Gen. Stat. sec. 54-250 (2). For a full list of sex offenses, see Conn. Gen. Stat. sec. 54-250 (2)(offenses against minors), (11) (sexually violent offenses)
¹¹⁰ Conn. Gen. Stat. sec. 54-250 (1)
¹¹¹ See e.g. Conn. Gen. Stat. secs. 54-251 (a), 54-252 (a)
¹¹² Conn. Gen. Stat. secs. 54-251 (a), 54-252 (a)
¹¹³ Conn. Gen. Stat. secs. 54-251 (b), 54-255
¹¹⁴ Conn. Gen. Stat. sec. 54-251
¹¹⁵ Conn. Gen. Stat. sec. 54-258(1)
¹¹⁶ Conn. Gen. Stat. sec. 53a-71
¹¹⁷ Kent v. Dulles, 357 U.S. 116, 126 (1958)
¹¹⁸ State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, 373 (1991); Terry v. Ohio, 392 U.S. 1, 16 (1968)

Questions & Answers (Accurate as of January 31, 2012)

Marriage & Civil Unions

Can same-sex couples marry in Connecticut?

Yes.  On October 10, 2008, Connecticut’s Supreme Court ruled that the state can no longer bar gay and lesbian couples from marrying.  Connecticut became the third state, after Massachusetts and California (unfortunately a ballot initiative in November 2008 took away the right for same-sex couples to marry in California), where same-sex couples can wed.  This decision was the result of a lawsuit, Kerrigan & Mock v. Connecticut Dept. of Public Health, which GLAD filed on August 25, 2004 in New Haven Superior Court on behalf of eight gay and lesbian Connecticut couples who were denied marriage licenses.  The plaintiff couples, who at that time had been in committed relationships for between 10 and 30 years, many of them raising children, contended that their exclusion from marriage violated the equal protection and due process provisions of the Connecticut Constitution.

In April 2005, while the Kerrigan lawsuit was still ongoing, the Civil Union Law was signed by the Governor granting same-sex couples the state-based legal rights and benefits of marriage. GLAD argued in Kerrigan that a separate institution for gay and lesbian couples also violates the Connecticut Constitution.

On June 12, 2006, the trial court ruled for the state, claiming that there was no difference between a marriage and a civil union.  GLAD appealed this decision to the Connecticut Supreme Court.  After both sides filed lengthy legal briefs, the Connecticut Supreme Court heard oral arguments on May 14, 2007.

The Supreme Court ruling came on October 10, 2008 in a 4-3 decision issued on the basis of equal protection and a determination that sexual orientation-based classifications receive intermediate scrutiny.  In its decision, the Supreme Court ruled that: “Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice.  To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.  The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so.”⁵⁵ 

Importantly, the Supreme Court found that because of the history of systemic discrimination against gay and lesbian people, laws that discriminate on the basis of sexual orientation must receive a higher level of review or scrutiny than ordinary legislation.  This heightened scrutiny means the state must have particularly strong and substantial reasons if it chooses to deny rights to gay and lesbian citizens.  The state, according to the Supreme Court, had no sufficient justification for denying marriage to same-sex couples.

The process for getting married in Connecticut basically requires the following basic steps:

1. an eligible couple submits an application for a license in either the town or city in Connecticut where the wedding will take place or where either of the parties lives;
2. the couple must pay the applicable fee and receive a marriage license from the clerk;
3. the couple must have the marriage solemnized (i.e., have a ceremony) within 65 days of filing the application;
4. once the ceremony has been performed, the person who performed it will state the time and place of the wedding on the license, sign it, and send it back to the city or town where the couple married; and
5. the clerk will then register the marriage and the couple can receive an official certificate of their marriage.

The detailed process for getting married in Connecticut, whether you should enter a marriage, and what it all means are questions that are addressed in GLAD’s publication, How To Get Married In Connecticut.

Can Connecticut same-sex couples get married anywhere else?

Yes.  Within the United States, it is now possible for same-sex couples to legally marry in Massachusetts, Vermont, New Hampshire, Iowa, the District of Columbia and New York. GLAD has publications about how to get married in any of the New England states where same-sex couples can marry at http://www.glad.org/rights/publications/c/marriage/.  For information about getting married in Iowa, the District of Columbia and New York contact Lambda Legal, http://www.lambdalegal.org

.

Canada allows same-sex couples to marry and has no residency requirement.  For information about Canada see GLAD’s publication, What Do I Need to Know About Getting Married in Canada?

In addition, the Netherlands, Belgium, Spain, South Africa, Norway, Sweden, Portugal, Iceland and Argentina allow same-sex couples to marry, but some of these countries have requirements that make it difficult for non-citizens to marry.

How will the marriage of a same-sex couple be respected?

Connecticut will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a Connecticut marriage will be respected as a marriage in Massachusetts, Vermont, New Hampshire, Iowa, the District of Columbia and New York (and possibly in New Mexico and Maryland even though same-sex couples cannot marry there).

A Connecticut marriage will also be treated as a civil union in New Jersey, Illinois and Delaware, and it will be respected as a domestic partnership in the state of Washington. 
However, because of the 1996 federal Defense of Marriage Act (DOMA), the federal government will not respect the marriage of any same-sex couple, and so married same-sex couples will not have access to the 1138 federal laws that pertain to marriage.

GLAD has filed two federal lawsuits, Gill et al. v. OPM et al. and Pederson et al. v. OPM et al., to challenge Section 3 of DOMA (see http://www.glad.org/doma for detailed information).  Should GLAD succeed in these lawsuits, or should Congress repeal DOMA Section 3, some or all of the federal laws where marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected.

Civil Unions

Connecticut was the second state (Vermont was the first) to allow same-sex couples to enter into a civil union, which is a legal status parallel to civil marriage at the state law level.  Without any compulsion from a court, the state legislature passed a law, “An Act Concerning Civil Unions,” that was signed by the Governor on April 20, 2005 and became effective October 1, 2005.  Civil Unions provide all the benefits, protections and responsibilities that are granted to a spouse under state law.^56> The Connecticut Supreme Court ruling, which enables same-sex couples to marry, did not in any way change the state’s Civil Union Law.

However, on April 23, 2009, the Governor signed into law Public Act 09-13, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” which provided a process for moving from a system in which both civil unions and marriage are available to gay and lesbian couples to a system in which only marriage is available.  All existing Connecticut civil unions were converted into marriages on October 1, 2010. 

If you have a civil union from another state, Public Act 09-13 clarifies that Connecticut will grant you the same rights and benefits, and hold you to the same responsibilities, as a married couple in Connecticut. So, for example, if you have a civil union from Vermont, New Jersey, Illinois, Delaware or Hawaii, or a registered domestic partnership from California, Oregon, Nevada or the state of Washington, Connecticut law will treat you in the same manner as if you were married in Connecticut.

How much longer will civil unions be available in Connecticut?

Legal Protections for Same-Sex Couples

Without getting a marriage, what steps can a couple take to legally safeguard their relationship in Connecticut?

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage or civil union.

There are far more modest steps available to people who seek certain limited legal protections and do not desire a civil union.

Relationship Agreement or Contract: In 1987, the Connecticut Supreme Court ruled that an agreement between an unmarried heterosexual couple to share their earnings and the fruits of their labor was an express contract which could be enforced according to the ordinary rules of contract when the couple separated.⁵⁷  There is every reason to believe that the same result will apply to the contract of a same-sex couple.  While the court held that contracts could be oral or in writing, this ruling provides great incentive for couples to sort out their affairs in writing before a separation.

Document Designating a Non-Legally Related Adult to Have Certain Rights and Responsibilities: In 2002, Connecticut adopted a new set of laws 2002,⁵⁸, that allows an adult, known as the designator, to name another adult of either sex, known as the designee, to make certain decisions on her or his behalf, or giving the designee certain rights or responsibilities. The protections this law provides fall far short of those associated with marriage, but they may provide some peace of mind for couples under a narrow set of circumstances.

To make this designation, the designator must sign, date and acknowledge a document before a notary public and two witnesses.  The designator can revoke the document at any time by destroying the document or by executing a new document.⁵⁹ The designation document must be honored in the following circumstances:

• In The Workplace: An employer must notify an employee of an emergency phone call concerning the employee’s designee.⁶⁰
• In Court And Administrative Proceedings Involving Crime Victims: The designee of a homicide victim is granted employment protection for missing work in order to attend the court proceedings.^61> The designee is also entitled to request and receive advance notice of the terms of plea agreements with the perpetrator,⁶² to make a statement in court prior to the sentencing of the perpetrator, and to make a statement at parole hearings of the perpetrator.  The designee, if wholly or partly dependent on the deceased person’s income, may seek compensation from the Office of Victim Services.⁶³
• In Health Care Settings: With regard to end-of-life decisions, a doctor must attempt to determine the patient’s wishes.  If a patient’s wishes are not written in a living will, the designee is among those with whom the doctor must consult regarding the removal of life support.⁶⁴  The doctor must record any such communications with a designee in the patient’s medical record.⁶⁵  Before removing life support, the doctor must make reasonable efforts to notify the patient’s designee.⁶⁶  In addition, the designee has priority in making anatomical gifts on behalf of a deceased designator over all representatives or family members with the exception of a surviving spouse.⁶⁷
• In Psychiatric Hospitals: The designee is among the list of people who may consent to medical or surgical procedures for involuntarily committed psychiatric patients who are unable to consent themselves.⁶⁸
• In Nursing Homes: The act entitles the designee to (1) receive advance notice of involuntary, non-emergency room transfer, including Medicaid patients’ transfer into non-private rooms; (2) participate in any consultations prior to any contested transfer; (3) private visits with the patient; and (4) meet in the facility with family members of other patients.⁶⁹

Other documents, discussed below, allow same-sex partners to share financial, medical, and end of life decisions.  The rights and responsibilities to which the designee is entitled under Public Act 02-105 overlap with some of those set forth in the documents discussed below.  It is unclear how the law will handle these potential conflicts, and therefore any preference for who should carry out specific obligations should be clearly noted in all relevant documents.

Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters and health care or personal matters, in the event the one becomes incapacitated or disabled.⁷⁰ The law provides a “short form” which allows a person to check off the kinds of transactions he or she would want the “attorney-in-fact” to perform in his or her place.  These include (a) real estate matters; (b) chattel and goods transactions; (c) bond, share and commodity transactions; (d) banking transactions; (e) business operating transactions; (f) insurance transactions; (g) estate transactions; (h) claims and litigation; (i) personal relationships and affairs; (j) benefits from military service; (k) records, reports and statements; and (l) all other matters designated by the individual, except health care decisions. Those can be delegated to a “health care representative” that is described below.⁷¹

Note that the “attorney-in-fact” may make health care decisions and thus serve as a voice for securing medical treatments already determined by the declarant.  However, the power of the “attorney-in-fact” does not extend to decisions concerning engagement or withdrawal of life support.  That responsibility lies with a “health care agent” (see below) or a designee under Public Act 02-105, unless set forth in a living will.

It is not clear if the “attorney-in-fact” receives priority for visiting a person in the hospital, so it is important to state whether you want such a preference given in the power of attorney or another document.

The power of attorney can become effective immediately, or upon your disability (called a “springing” power of attorney, because it springs into being upon disability), and it can have a short termination date, long termination date, or no termination date. It should be witnessed by two disinterested individuals and notarized.  The notary may also serve as a witness.  The power of attorney must stay in possession of the “attorney-in-fact.”

Health Care Representative: A person age 18 or over may appoint another person to act as his or her health care representative and thereby state his or her wishes regarding health care including withdrawal of life support, preferences for types of medical care, anatomical gifts, or limits on the agent’s authority for end-of-life issues.⁷² The document must be executed in accordance with Conn. Gen Stat. sec. 19a-577 or sec. 19a-575a, and must be witnessed by two adults.  Absent a living will, the attending physician will consult the health care representative, the next of kin, the patient’s designee under Public Act 02-105, or any other person knowledgeable of the patient’s wishes.⁷³ The representative’s designation can be revoked by a written document signed by the person who appointed the representative and two witnesses. ⁷⁴

Appointment of Conservator: Before an individual adult becomes disabled or incompetent, he or she may also designate in writing one or more persons to act as a conservator of his person or estate or both for when the adult is found incapable of managing his or her own affairs.⁷⁵  These documents must be treated with the same formality as wills.  See generally Conn. Gen. Stat. sec. 45a-645 (b).  The appointment of a conservator takes precedence over an attorney-in-fact, health care agent or designee under the new act.⁷⁶  A person may also nominate a conservator in accord with the form provided by statute.⁷⁷  Note that all nominations are subject to the scrutiny of the probate court at the time a person is deemed incapable or incompetent.

Will: Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family or (3) if next-of-kin cannot be located, to the state.  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.⁷⁸ In addition, if a person has children, he or she can nominate the future guardian and “trustee for asset management” of the child in the will.  That nomination will be evaluated by the Probate Court.

Transfer of Car Ownership to Surviving Partner: Under Public Act 02-105, a car owner may designate, on the car’s registration, a beneficiary to assume ownership of the car upon the death of the owner.⁷⁹

Funeral Planning Documents: Upon death, a person’s body is given to their spouse or their next-of-kin.⁸⁰  This can mean that a person’s own partner has no right to remove the body, write an obituary, or make plans for a final resting place.  To avoid that problem, you can create a document (witnessed and notarized) that designates the person you want to be able to have custody and control of your remains.⁸¹ (Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters, as well as to family).

Summary: Some attorneys, particularly if a person is naming the same individual as responsible for his or her welfare, have wrapped together many of the above protections (except the relationship contract, will and the designation under Public Act 02-105) into a document entitled:  “Health Care Instructions, Appointment of Health Care Representative, Appointment of Attorney in Fact for Health Care Decisions, Designation of Conservator for Future Incapacity and Document of Anatomical Gift.”⁸²  It seems likely that the designation under Public Act 02-105 may also be incorporated into such a comprehensive document.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions.  In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents.

If a couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  If a couple has a marriage or civil union, divorce laws apply.  Absent a marriage, civil union or an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it. 

If a person has changed his or her mind about who should be his or her “attorney-in-fact,” or health care representative, or beneficiary or executor under a will, or funeral planner, or conservator, or designee under Public Act 02-105, those documents should be revoked, with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner, which were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.”  See GLAD’s publications on Domestic Partnerships for further information.

Does Connecticut provide same-sex domestic partner benefits to state employees?

Not any longer. Although Connecticut offered domestic partnership benefits for its state employees for several years, there was an agreement that when marriage became available to same-sex couples those benefits would only be available to married or civil union spouses.  Beginning in November 2009 domestic partnership benefits were terminated. The process for obtaining coverage is simple.  Contact the Comptroller’s office at (860) 702-3301. You will need to fill out a domestic partnership affidavit and health insurance change forms.

Can cities and towns in Connecticut provide domestic partner health insurance benefits to their own employees?

Yes.  For example, Hartford has a domestic partnership ordinance providing a means for couples to register as domestic partners.⁸³

What kinds of domestic partner benefits may private employers provide?

Private employers may provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, access to company facilities or any other benefit.

Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for same-sex partners as compared to different-sex spouses.  For example, an employee must pay income tax on the value of his or her same-sex partner’s health insurance benefits, but an employee with a different-sex spouse does not.⁸⁴  For pensions, a same-sex partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension although a different-sex spouse would have that right.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

That is an open question.  On the one hand, the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and employee benefits are a form of compensation.  But on the other hand, lawsuits in other states have largely failed with these types of claims on the grounds that all unmarried people—gay and non-gay alike—are barred from benefits, so there is no sexual orientation discrimination. What is clear is that a private employer may provide domestic partner benefits; the only question is whether the employer could be forced to do so through the non-discrimination law.

Adoption

Can a single gay individual adopt a child in Connecticut?

Yes.

Can same-sex partners together adopt a child in Connecticut?

Yes.  A couple with a marriage or civil union must adopt a child not born into the relationship as a couple.  A couple who does not have a marriage or civil union can both become legal parents of a child through a process, called “second parent adoption,” whereby one adopts (or gives birth to the child), and then the second parent adopts.  A law which became effective October 1, 2000 creates a process for “second parent adoption” whereby an existing parent (biological or adoptive) may agree to the adoption of the child by another person “who shares parental responsibility for the child.”⁸⁵

What is the advantage of doing a second parent adoption?

A joint or second parent adoption means that the child now has two legal parents for all purposes.  The law will finally reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the person is a parent entitled to make decisions for the child in day-to-day and emergency matters.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits.

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we have a marriage or a civil union?

A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple.  While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves.  Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt.,2006), cert. denied, 127 S.Ct. 2130 (2007); Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88 (2006), cert. denied 128 S.Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.  Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant was issued.  Lisa and Isabella still have not been found.

On March 8, 2010, Liberty Counsel filed on Lisa’s behalf an appeal of the custody order with the Vermont Supreme Court, and GLAD has filed a response on behalf of Janet.  GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to http://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins. 

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

As a general matter, the rights of the other parent (non-birth parent or non-adoptive parent) are limited in these circumstances.  Whether the couple obtained a marriage or civil union may alter the situation.  If there is no marriage or civil union, the law permits persons to petition the Superior Court for visitation but not custody.⁸⁶  The threshold requirement for a visitation petition is a disruption in a child’s family life.⁸⁷  As to what “family life” means under the law, see Michaud v. Wawruck.⁸⁸

Several courts have allowed lesbian co-parents the right to visit with their children following a separation.⁸⁹  Persons awarded visitation have no obligation to support the child, but a legal parent may accept support which is paid.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish visitation will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families:  Standards for LGBT Families at http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.  Among these are:

• Co-parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death.  While these agreements may not be given effect, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
• Wills: The legal parent may nominate a guardian of the child upon the parent’s death.  These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would likely have priority over the nominated guardian.
• Power of Attorney: This document is signed by the parent and authorizes another person (the “attorney-in-fact”) to make medical or financial decisions for the child (See discussion above).

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

This question has never been answered squarely by the Connecticut Supreme Court.  As a practical matter, a parent’s sexual orientation by itself should not be grounds for denying custody or visitation.  A 1988 case decided by a lower court involved a lesbian mother who lost custody of her children to their father, and who was ordered not to have her partner present when the children visited.  But the mother did not appeal those rulings and the only matter to reach the Supreme Court was the issue of the financial obligations imposed on her.⁹⁰

It is extremely important that you be honest with your lawyer about your personal circumstances.  The information is likely to come to light in any event since a family services officer will be appointed and speak to you, your spouse, your child, and possibly neighbors and people at your child’s school.  If you don’t trust your lawyer with this information, get a new lawyer.

What are the factors for making custody determinations generally?

Upon divorce, the parties may make an agreement about custody and visitation.  If they can’t reach an agreement, a Superior Court judge will make custody and visitation orders based on the “best interests of the child” standard.⁹¹  As a general matter, the best interests of the child “include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment.”⁹²

In all contested cases, the judge will appoint a family relations officer to investigate in order to help the judge arrive at a decision.  The investigation can touch on matters of “parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and characters of his parents or guardians and evaluation of his mental or physical condition.”⁹³

Are there different kinds of custody?

Yes.  “Joint custody” means an order of legal custody of the child to both parents, which allows them joint decision-making for the child and providing that the child shall have continuing contact with both parents.⁹⁴  Sole custody means that only one of the parents has those rights.

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent may argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.

Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?

Whether or not you come out during the divorce process is a personal decision, but there is little to no benefit in keeping it a secret.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a change of circumstances, which affects the child’s best interests, and that the custody issues should be litigated anew.  People can seek to modify court orders for custody when there has been a change in circumstances which alters the child’s best interests. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition claiming a “change” would be pointless.⁹⁵

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but should not do so unless it is clearly in the best interests of the child.  Connecticut courts have rejected the notion that any particular lifestyle, in and of itself, will harm a child and insist instead on proof.

Domestic Violence

What is domestic violence?

Under the law, “family violence” means “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault…”⁹⁶  Verbal threats by themselves do not trigger the law’s protections unless there is “a present danger and the likelihood that physical violence will occur.”

Do the domestic violence laws apply to people in same-sex relationships?

In some circumstances.  “Family violence” between family or household members includes, among other things,civil union and same-sex married spouses as well as relationships in which people are or were residing in the same household, people who have a child in common, and people who are in or have recently been in a dating relationship.⁹⁷

How do I get a court order protecting me from an abusive partner?

You can get a court order from the Family Court, which will prohibit the abuser from coming near you or your home or from harassing you any further.  It will only be issued if the court finds you have been subjected to “a continuous threat of present physical pain and injury.” ⁹⁸  Orders may be granted on an emergency basis.

The process is intended to be simple.  You may go to court nearest where you live, or if you have just fled your home, in the town where you used to live.  You will need to fill out an application alleging “abuse” as defined above with an affidavit providing the details.  The affidavit is signed under oath, so everything you say must be true. Try to demonstrate in as much detail as possible why you feel threatened.

The defendant/abuser must be served with (given a copy of) the court order and notified of his or her right to contest the order in court.  At that time, both parties often have attorneys.  You should bring with you any witnesses who can substantiate the abuse, as well as copies of threatening letters, medical records, or any other documents that can show how you have been harmed and why you are afraid.  Expect to be asked questions by the judge and the attorney for the abuser/defendant.  You have the same right to ask questions.

Once the order is issued, it is effective statewide.  Violation of a court order of which an abuser has notice is a criminal offense.⁹⁹  After hearing, the court may grant orders of protection up to 6 months in duration, and those orders may later be extended for up to another 6 months at a time.¹⁰⁰

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed.  If you don’t show up, it is possible the court will think of you as unreliable if you need legal help in the future.

There is another type of order available as well called a “protective” order.  It is issued automatically when an assailant is arrested and requires no contact to occur between the assailant and victim.

There are other laws that prohibit stalking, harassing and trespassing which may apply to you, but are beyond the scope of this document.

Where can I go to get help?

In addition to the local police, district attorney, and Superior Court you can contact:

• Connecticut Coalition Against Domestic Violence (CCADV)
  (860) 282-7899 or Toll-Free (888) 774-2900
  www.ctcadv.org
• Connecticut Sexual Assault Crisis Services
  (860) 282-9881 or Toll-Free (888) 999-5545
  www.connsacs.org
• INFOLINE (24 hour hotline) or Toll-Free (800) 203-1234
• Connecticut Women’s Education and Legal Fund (CWEALF)
  (860) 524-0601 or Toll-Free (800) 479-2949
  www.cwealf.org

Does domestic violence play a role in custody decisions?

It may, but there is no law saying that it should.  It is a factor which affects the best interests of the child analysis.

Footnotes

⁵⁵ Kerrigan v. Comm’r of Pub. Health 289 Conn. 135, 262 (2008).
⁵⁶ California provides a registered domestic partnership system which is nearly as comprehensive and New Jersey and Maine provide more limited protections.
⁵⁷ Boland v. Catalano, 2002 Conn. 333, 340-41, 521 A.2d 142, 146 (1987)
⁵⁸ Public Act 02-105
⁵⁹ Public Act 02-105, sec. 3(b)
⁶⁰ Conn. Gen. Stat. sec. 31-51jj
⁶¹ Conn. Gen. Stat. sec. 54-85d
⁶² Conn. Gen. Stat. secs. 1-1k, 54-91c, 54-126a
⁶³ Conn. Gen. Stat. sec. 54-201
⁶⁴ Conn. Gen. Stat. sec. 19a-571(a)
⁶⁵ Conn. Gen. Stat. sec. 19a-578(b)
⁶⁶ Conn. Gen. Stat. sec. 19a-580
⁶⁷ Conn. Gen. Stat. sec. 19a-289h(a)
⁶⁸ Conn. Gen. Stat. sec. 17a-543(b)
⁶⁹ Conn. Gen. Stat. sec. 19a-550
⁷⁰ Conn. Gen. Stat. sec. 1-42
⁷¹ See Conn. Gen. Stat. sec. 1-43(a)
⁷² Conn. Gen. Stat. secs. 19a-576
⁷³ Conn. Gen. Stat. sec. 19a-571
⁷⁴ Conn. Gen. Stat. sec. 191-575a
⁷⁵ Conn. Gen. Stat. sec. 45a-645
⁷⁶ Conn. Gen. Stat. sec. 45a-650 (g)
⁷⁷ Conn. Gen. Stat. sec. 19a-575
⁷⁸ See generally Conn. Gen. Stat. secs. 45a-433 – 45a-439
⁷⁹ Conn. Gen. Stat. sec. 14-16
⁸⁰ Conn. Gen. Stat. sec. 45a-318
⁸¹ Conn. Gen. Stat. sec. 45a-318
⁸² Conn. Gen. Stat. sec. 19a-575a
⁸³ Hartford, CT Municipal Code, Chap. 2, Art. III, sec. 2-63 (2000)
⁸⁴ See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)
⁸⁵ Public Act 00-228, amending Conn. Gen. Stat. sec. 45a-724.
⁸⁶ Conn. Gen. Stat. sec. 46b-59
⁸⁷ Castagno v. Wholean, 239 Conn. 336 (1996)
⁸⁸ 209 Conn. 404 (1988)(“traditional models of the nuclear family have come. . . to be replaced by various configurations. . . and we should not assume that the welfare of children is best served by a narrow definition of those who we permit to continue to manifest their deep concern for the child’s growth and development”)
⁸⁹ See e.g. Antonucci v. Cameron, 25 Conn. L. Rptr. 509 (Conn. Super. Ct. Dept., Sept. 24, 1999)(allowing visitation to lesbian co-parent where visitation is in the best interests of the child); Laspina-Williams v. Laspina-Williams, 46 Conn. Supp. 165, 742 A.2d 840 (1999)(denying motion to dismiss of biological mother in co-parent visitation case)
⁹⁰ Charpentier v. Charpentier, 206 Conn. 150, 536 A.2d 948 (1988)
⁹¹ Conn. Gen. Stat. sec. 46b-56(b)(1)
⁹² Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996, 999 (1985)
⁹³ Conn. Gen. Stat. sec. 46b-6
⁹⁴ Conn. Gen. Stat. sec. 46b-56a
⁹⁵ See generally, Conn. Gen. Stat. sec. 46b-56
⁹⁶ Conn. Gen. Stat. sec. 46b-38a(1)
⁹⁷ Conn. Gen. Stat. sec. 46b-38a(2)
⁹⁸ Conn. Gen. Stat. sec. 46b-15
⁹⁹ See generally, Conn. Gen. Stat. sec. 46b-15 (c)
¹⁰⁰ Conn. Gen. Stat. sec. 46b-15(d)

Questions & Answers (Accurate as of January 31, 2012)

Does Connecticut have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes.  In 1991, Connecticut became one of a handful of states to pass a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, public accommodations and credit. In 2007, most of the anti-discrimination laws were amended to include “civil union status”.¹—This will be indicated as we discuss the anti-discrimination laws below.

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes.  The non-discrimination law defines “sexual orientation” as “having a preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference…”²  The language of “having a history of such a preference,” and the language of “being identified with” should allow a person who is fired because they are (inaccurately) perceived to be gay to invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically.  But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord also thought they, too, were gay or lesbian.  This would fall under the language in the law which provides protection to people “being identified with” a same-sex sexual orientation.

Does it protect transgender people?

Yes. On July 1, 2011, Governor Malloy signed into law Public Act 11-55, “An Act Concerning Discrimination,” which adds gender identity or expression to Connecticut’s anti-discrimination laws.  According to the law, “Gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical care, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.³

This makes Connecticut the fourth state in New England and the 15th state in the United States to provide explicit anti-discrimination protections for transgender people.  The law went into effect on October 1, 2011.  For more detailed information see GLAD’s and the Connecticut Women’s Education and Legal Fund’s (CWEALF) publication, Connecticut:  Legal Protections for Transgender People, at:  http://www.glad.org/uploads/docs/publications/ct-trans-legal-protections.pdf

.

Employment

What do the employment provisions say?  To whom does the law apply?

The non-discrimination law forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation⁴ or gender identity expression.⁵ This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers.

In addition, employment agencies may not participate in discrimination by refusing to properly classify or refer their customers for employment or otherwise discriminate because of sexual orientation⁶ or gender identity or expression.⁷  Labor organizations (e.g. unions) may not deny or exclude membership in the union because of sexual orientation or gender identity or expression, or otherwise discriminate against its members because of sexual orientation⁸ or gender identity or expression.⁹

The law forbids all of these entities from advertising in such a way as to restrict employment because of sexual orientation¹⁰ or gender identity or expression.¹¹

The State of Connecticut and its agencies are forbidden from discriminating based on sexual orientation¹² or gender identity or expression¹³ both in their own employment practices as well as in their provision of services. The law imposes an affirmative obligation on state agencies to adopt rules to enforce the non-discrimination provisions and to establish training programs. Contractors who provide services to the state (and any subcontractors they hire) must also certify in writing that they will not discriminate based on sexual orientation¹⁴ or gender identity or expression¹⁵ when fulfilling the contract terms.

Does the law apply to every employer in Connecticut?

No.  As broad as the law is, there are several exemptions to its application.

• An employer must employ 3 or more persons in order to be subject to the non-discrimination law.¹⁶
• An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it has someone in it who is non-gay¹⁷ or non-transgender.¹⁸  But there are no general occupational exemptions from the reach of the non-discrimination law, and this defense is very rarely successful.¹⁹
• For the scope of an exemption for certain religious employers, see the section below on Religious Exemption to the Prohibitions on Sexual Orientation.
• The ROTC (Reserve Officer Training Corps) program, which is established under federal law to provide officers to the U.S. military, may continue to discriminate in its “conduct and administration” at colleges and universities.²⁰

Does Connecticut law forbid sexual harassment on the job?

Yes.  Connecticut law defines sexual harassment as:

“unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.”²¹

Can I file a complaint of sexual harassment even if I’m gay?

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person.  Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation.  Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.²²

Public Accommodations

What is a “place of public accommodation?”

A place of public accommodation is “any establishment which caters or offers its services or facilities or goods to the general public . . .” and you are protected by the non-discrimination laws in such places.²³ This definition is intentionally broad.

What does the law say about discrimination in places of public accommodation?

Such places may not deny full and equal accommodations, or discriminate in any way because of a person’s sexual orientation²⁴ or gender identity or expression.²⁵  There are a number of irrelevant exemptions in the general law on public accommodation non-discrimination or civil union status.²⁶

A specific law also forbids discrimination at golf clubs on the basis of sexual orientation or gender identity or expression.²⁷

If a person is denied membership or access to facilities because of sexual orientation (but not civil union status), he or she can file a complaint in Superior Court to restrain further violations and recover actual damages (or at least $250) as well as costs and attorney’s fees.²⁸

Housing

What is prohibited by the housing anti-discrimination law in Connecticut?

The housing laws are intended to prohibit discrimination on the basis of sexual orientation²⁹ or gender identity or expression³⁰ for transactions related to residential housing, whether listing, buying, selling, renting or financing, and whether for profit or not, and whether public or private.  Other practices are forbidden, too, such as advertising in a way limited by sexual orientation or gender identity or expression, representing that a dwelling is not available when in fact it is, denying access to a multiple listing service, or altering the terms of a transaction because of sexual orientation or gender identity or expression.

Are any landlords exempt from the housing anti-discrimination law?

The main exemption for sexual orientation to the law allows owners who actually live in a building with not more than four units to disregard the law if they choose³¹, while for gender identity or expression it is a two-family owner-occupied dwelling.³²)

Credit

What protections exist under Connecticut anti-discrimination law with regard to credit?

Any person who “regularly extends or arranges for the extension of credit” for which interest or finance charges are imposed (e.g. a bank, credit union, or other financial institution), may not discriminate because of sexual orientation³³ or gender identity or expression³⁴ in any credit transaction.

Example: GLAD brought and settled a claim against a credit union which refused to allow an effeminate looking man from applying for a loan until he came back looking more masculine.  A federal court ruled that this stated a claim of sex discrimination.³⁵

Religious Exemption to the Prohibitions on Sexual Orientation and Civil Union Status Discrimination

Religious corporations, associations and educational institutions are sometimes exempt from the law, including the areas of employment, public accommodations, housing and credit discussed above.  These anti-discrimination laws”...shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.”³⁶  Although the exemption is broad, it is not a carte blanche for an employer to use his or her religious beliefs as justification for discriminating against a gay or transgender person.³⁷

Transgender/Gender Identity Discrimination

What protections exist for transgender people under the discrimination laws?

While there is no explicit statutory protection in the law for transgender persons in Connecticut, in a pathbreaking ruling, the Connecticut Commission on Human Rights and Opportunities (CHRO) ruled in November, 2000, that transgendered people may be protected under the law’s existing prohibition of sex discrimination.  The case involved a transsexual and the CHRO ruled in part,

“Unlike several federal enactments, Connecticut law does not contain any exclusion, express or implied, of transsexuals from the general prohibitions against sex discrimination. . . . [T]his CHRO declares that transsexuals . . . may pursue claims of sex discrimination [under Connecticut statutes].”²⁹

In some cases, an individual’s gender identity may be regarded as “a gay issue” by some entities and therefore allow a person to bring a sexual orientation claim.  More to the point, however, in some cases a transsexual or transgender person may have a claim of sex discrimination if he or she is adversely treated at work or in housing.  If the adverse action is triggered by the sense that the individual does not meet the expectations of, or act like, a “real man” or “real woman,” then this can be the basis for a sex-stereotyping claim.³⁰  For more information, see GLAD’s publication, Transgender Legal Issues in New England.

Pursuing a Complaint

How do I file a complaint of discrimination?

If you wish to file a complaint, you should contact an intake officer at one of the regional offices of the Connecticut Commission on Human Rights and Opportunities (CHRO).  The intake worker will discuss your concerns, explain the complaint process and advise you about what help CHRO may be able to provide to you.  If CHRO has jurisdiction, you will be given an appointment to come to a regional office to file a complaint.  Here is the contact information for CHRO’s administrative headquarters and four regional offices:

• ADMINISTRATIVE HEADQUARTERS 25 Sigourney Street Hartford, CT 06106 PHONE: (860) 541-3400 OR (800) 477-5737 FAX:  (860) 246-5068
• CAPITOL REGION OFFICE 999 Asylum Avenue, Second Floor Hartford, CT 06105 PHONE: (860) 566-7710 FAX: (860) 566-1997
• EASTERN REGION OFFICE 100 Broadway Norwich, CT 06360 PHONE: (860) 886-5703 FAX: (860) 886-2550
• WEST CENTRAL REGION OFFICE Rowland State Government Center 55 West Main Street, Suite 210 Waterbury, CT 06702-2004 PHONE: (203) 805-6530 FAX: (203) 805-6559
• SOUTHWEST REGION OFFICE 350 Fairfield Avenue, 6th Floor Bridgeport, CT 06604 PHONE: (203) 579-6246 FAX: (203) 579-6950

If you are a state employee, you may file your case directly in court.

For housing complaints only, contact the Housing Discrimination Unit at (800) 477-5737 ext. 3403 or (860) 541- 3403.

The complaint must be in writing and under oath, and it must state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”).  The complaint must set out the particulars of the alleged unlawful acts, and it is advisable also to state the times they occurred.³⁸ There is no charge to file a complaint.

If you are a state employee, you may file your case directly in court.  State employees can skip over the CHRO process entirely.

Do I need a lawyer?

No.  The process is designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout the process.  Not only are there many legal rules governing the CHRO process, but also employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

For most people, a complaint must be filed with the CHRO within 180 days of the last discriminatory act or acts. ³⁹There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes.  The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation as well as civil union status, race, color, religion, creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability.⁴⁰  In housing, the criteria include most of the above as well as “lawful source of income or familial status.”⁴¹  Protected classes under public accommodations law include those of employment plus “lawful source of income.”⁴²

What happens after a complaint is filed with the CHRO?⁴³

When you file a complaint with the CHRO, you will be given a packet of information explaining the CHRO procedures and deadlines.  Please review these and follow the deadlines.

After filing your complaint, and within 90 days of receiving the answer of the respondent, the CHRO will review the complaint and answer to determine if any further investigation is necessary.  This is called a merit assessment review (MAR).  Since many cases are dismissed at this stage of the proceedings, it is important that you reply to the respondent’s answer within 15 days of receiving it.

After the MAR, if the case is dismissed, you will be given 15 days to request the right to move your complaint from CHRO into the courts.  If you do not request to remove your complaint from CHRO, there will be a review of your case, and within 60 days a decision will be made to either reinstate your complaint or to uphold the dismissal.

After the MAR, if the case is not dismissed, an investigator will be assigned and a mandatory mediation conference will be held within 60 days.  If negotiations fail to produce a settlement agreeable to all parties, either party or the CHRO can request early legal intervention.  The CHRO has 90 days to act upon this request and make one of the following decisions:

1. the investigator will continue to collect evidence and will make a decision of “reasonable cause” or “no reasonable cause.”
2. a Hearing Officer will be appointed to decide the merits of the case in a trial-type hearing.
3. the complaint will be dismissed.

If there is not a request for early legal intervention, then as in 1. above, the investigator will continue to collect evidence and will make a determination of “reasonable cause” or “no reasonable cause.”  If a finding of “reasonable cause” is made, you can request either to have the case heard at the CHRO or to move it to Superior Court.  If a finding of “no reasonable cause” is made, you have 15 days to request reconsideration.

Note that in housing discrimination cases, the CHRO must complete both its investigation and final disposition within 100 days of when the complaint is filed, unless it is impracticable to do so.⁴⁴

What are the legal remedies the CHRO may award for discrimination if an individual wins his or her case there?

Employment: may include hiring, reinstatement or upgrading, backpay, restoration in a labor organization, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices.)⁴⁵

Note that in housing discrimination cases, the CHRO must complete its investigation within 100 days of filing and the final disposition within one year, unless it is impracticable to do so.⁴⁴

Housing: damages (expenses actually incurred because of unlawful action related to moving, storage, or obtaining alternate housing); cease and desist orders, reasonable attorney’s fees and costs, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices.).⁴⁵

(Note that when cases are filed in court, emotional distress damages and attorneys’ fees are also available to a successful complainant.  These are not available from the CHRO.)⁴⁶

Public Accommodations: cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws.⁴⁷ The CHRO may also order civil fines to be paid to the state.⁴⁹

Credit: cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. allowing person to apply for credit on non-discriminatory terms).⁵⁰

Should I take my case away from the CHRO and file in court?  How do I do so?

This is a decision you should make with your lawyer.  Greater damages are available to you in state court than at the CHRO, including emotional distress damages and attorney’s fees.

To sue an entity in state court as opposed to the CHRO, you must follow several steps and meet various deadlines.⁵¹

• • Your complaint must have been filed on time at the CHRO (i.e., within 180 days of the last act of discrimination);
• • Your complaint must have been pending with the CHRO more than 180 days (although if you and your employer agree to request the case’s removal to court, you may do so before the 180 days elapse) or the merit assessment review must have been completed;
• You must request a release of your complaint from the CHRO for the purpose of filing a court action (which the CHRO must grant except when the case is scheduled for public hearing or they believe the complaint can be resolved within 30 days);
• You must file your court action within 2 years of the date of filing your complaint with the CHRO; and
• You must file your court action within 90 days after you receive a release from the CHRO to file your case in court.

Are there other agencies at which I can file a complaint for discrimination?

Depending on the facts of your particular situation, you may be able to file your complaint of discrimination with other agencies.  This outline concerns only Connecticut non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  If you obtain relief under your contract, you may even decide not to pursue other remedies.  Get and read a copy of your contract and contact a union steward about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law.  For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation or gender identity or expression.  Thus, a gay person with HIV who is fired from a job because of HIV status can file with the CHRO as well as the Equal Employment Opportunity Commission.  To file claims under federal law, the employer must have at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with the CHRO, then the time limit for filing with the EEOC is extended to the earlier of 300 days or 30 days after CHRO has terminated the case.  This does not, however, extend the 180 day limit for filing with the CHRO.  (People who work for federal agencies are beyond the scope of this publication).
3. State or Federal Court: After filing with the CHRO or EEOC, or both, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file in court.  There are rules about when and how this must be done as discussed above.  In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies.  For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court.  If a person has a claim for a violation of constitutional rights, such as a teacher who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord threatens me for filing a complaint of discrimination?

It is illegal for any employer to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation.  “Retaliation” protections cover those who oppose any discriminatory employment practice, as well as those who participate in certain other proceedings.⁵²  If the employer takes action against an employee because of that conduct, then the employee should be able to state a claim of retaliation.⁵³

Likewise, it is illegal for a landlord to “coerce, intimidate, threaten or interfere with” anyone who file a complaint.⁵⁴

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD Legal InfoLine at 800-455-4523 (GLAD) any weekday between 1:30 and 4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim.  This is an individual choice which should be made after gathering information to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims.  It is always helpful if you bring an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them).  Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.  If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

¹ Although SB899 abolishes civil unions in Connecticut as of October 1, 2010, the Connecticut General Assembly has not removed “civil union status” as a prohibited basis for discrimination
² Conn. Gen. Stat. sec. 46a-81a
³ Conn. Gen. Stat. sec. 46a-51(21)
⁴ Conn. Gen. Stat. sec. 46a-81c(1)
⁵ Conn. Gen. Stat. sec. 46a-60(a)(1)
⁶ Conn. Gen. Stat. sec. 46a-81c(2)
⁷ Conn. Gen. Stat. sec.c. 46a-60(a)(2)
⁸ Conn. Gen. Stat. sec. 46a-81c(3
⁹ Conn. Gen. Stat. sec. 46a-60(a)(3)
¹⁰ Conn. Gen. Stat. sec. 46a-81c(4)
¹¹ Conn. Gen. Stat. sec. 46a-60(a)(6)
¹² See generally Conn. Gen. Stat. secs. 46a-81g to 46a-81o
¹³ See generally Conn. Gen. Stat. secs 46a-70 & 46a-71
¹⁴ Conn. Gen. Stat. sec. 46a-81i(d)
¹⁵ Conn. Gen. Stat. sec. 46a-60(a)(1)
¹⁶ Conn. Gen. Stat. sec. 46a-51(10)
¹⁷ Conn. Gen. Stat. sec. 46a-81c
¹⁸ See generally Conn. Gen. Stat. sec. 46a-60
¹⁹ See, e.g. The Evening Sentinel et al. v. National Organization for Women, 168 Conn. 26, 36 (1975)(“A BFOQ exists only if no member of the class excluded is physically capable of performing the tasks required by the job”); Conn. Institute for the Blind v. CHRO, 176 Conn. 88 (1978)(“The standard for a BFOQ purposely imposes a heavy burden on an employer whose refusal to hire is prima facie discriminatory”).
²⁰ Conn. Gen. Stat.  sec. 46a-81q
²¹ Conn. Gen. Stat. sec. 46a-60(a)(8)
²² Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)(same-sex sexual harassment forbidden under state law)
²³ Conn. Gen. Stat. sec. 46a-63(1)
²⁴ Conn. Gen. Stat. sec. 46a-81d
²⁵ Conn. Gen. Stat. sec. 46a-64(a) (1) & (2)
²⁶ See Conn. Gen. Stat. sec. 46a-64 (b)
²⁷ Conn. Gen. Stat. sec. 52-571d (b) & (c)
²⁸ Conn. Gen. Stat. sec. 52-571d (g)
²⁹ Conn. Gen. Stat. sec. 46a-81e
³⁰ generally Conn. Gen. Stat. sec. 46a-64c(a)
³¹ Conn. Gen. Stat. sec. 46a-81e(b)
³² Conn. Gen. Stat. sec. 46a-64c (b)(1)(B)
³³ Conn. Gen. Stat. sec. 46a-81f
³⁴ Conn. Gen. Stat. sec. 46a-66(a)
³⁵ v. Park West Bank, 214 F.3d 213 (1st Cir. 2000)
³⁶ For sexual orientation, see Conn. Gen. Stat. 46a-81p and for gender identity or expression, see Public Act 11-55, sec. 37
³⁷ Compare Hartwig v. Albertus Mangus, 93 F.Supp.2d 200, 211, 217 (2000)(gay man who alleged breach of contract because of his sexual orientation could have his claims of breach of contract, defamation and intentional infliction of emotional distress heard without violating free exercise or establishment clause principles).  (Note that the statutes pertaining to discrimination based on characteristics other than sexual orientation contain no express religious exemption.  See CHRO v. Archdiocesan School Office, 202 Conn. 601 (1987)(lower court erred in dismissing case against Catholic School on basis of wholesale religious exemption; issues were not ripe for adjudication)
³⁸ Conn. Gen. Stat. sec. 46a-82
³⁹ Conn. Gen. Stat. sec. 46a-82(e)
⁴⁰ Conn. Gen. Stat. sec. 46a-60
⁴¹ Conn. Gen. Stat. sec. 46a-64c
⁴² Conn. Gen. Stat. sec. 46a-64
⁴³ See generally, Public Act 11-237
⁴⁴ For sexual orientation Conn. Gen. Stat. sec 46a-81(e) and for gender identity or expression Conn. Gen. Stat. sec. 46a-64c(f)
⁴⁵ Conn. Gen. Stat. sec. 46a-86 (a - c)
⁴⁶ See Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995); Delvecchio v. Griggs & Browne Co., Inc., 2000 Conn. Super. LEXIS 1149 (April 17, 2000)(“The CHRO is without authority to award a prevailing party attorneys’ fees, punitive or compensatory damages or damages for emotional distress.”)
⁴⁷ Conn. Gen. Stat. sec. 46a-86 (a, c)
⁴⁸ Conn. Gen. Stat. sec. 46a-81e(f)
⁴⁹ Conn. Gen. Stat.  sec. 46a-86 (a); sec. 46a-64 (c)
⁵⁰ Conn. Gen. Stat.  sec. 46a-86 (a); sec. 46a-98 (outlining additional damages available for cases filed in Superior Court within one year of discriminatory act)
⁵¹ Conn. Gen. Stat. sec. 46a-101 to 46a-102
⁵² Conn. Gen. Stat. sec. 46a-60 (4)
⁵³ Compare Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man)
⁵⁴ Conn. Gen. Stat. sec 46a-64c(a)(9)

Questions & Answers (Accurate as of November 4, 2011)

Syringe Access

Do Connecticut laws provide for access to clean needles for injection drug users to prevent HIV transmission?

Under Connecticut law⁵⁹ specific provision is made for needle and syringe exchange programs in the health departments of the three cities with the highest number of AIDS cases among intravenous drug users.  These programs shall provide free and anonymous exchange of up to thirty needles and syringes per exchange and offer education about the transmission and prevention of HIV and offer assistance in obtaining drug treatment services.

Can I purchase a hypodermic needle or syringe over the counter at a pharmacy?

Yes.  Connecticut law permits a pharmacy, health care facility, or needle exchange program to sell ten or fewer syringes to a person without a prescription.⁶⁰

Footnotes

⁵⁹ Conn. Gen. Stat. sec. 21a-65
⁶⁰ Conn. Gen. Stat. sec. 21a-65 (b)

Questions & Answers (Accurate as of November 4, 2011)

HIV Testing

Consent

Does Connecticut have a law governing HIV testing?

Yes, but the law was changed significantly in 2009 eliminating the need to get specific informed consent each time an HIV-related test is done and the need to do pre-test counseling.  Instead, a general consent for medical care is sufficient as long as the general consent contains an instruction to the patient that the patient “may” be tested for HIV unless the patient “choose[s] not to be tested for HIV.”²³  Under this system, the burden is on the patient who does not want to be tested for HIV to communicate that refusal to the healthcare provider.

If the person declines an HIV-related test, then that will be documented in the patient’s record, but otherwise the medical provider does not need to get the patient’s specific consent to perform an HIV-related test.  The term “HIV-related test” includes a test for any agent “thought to cause or indicate the presence of HIV infection.”²⁴

Post-Test Counseling Requirements

Are there requirements for what must be provided to the patient at the time the results of the HIV-related test are communicated?

Yes, Connecticut law specifies counseling or referral to counseling must be provided, as needed:²⁵

• for coping with the emotional consequences of learning an HIV test result,
• regarding potential discrimination issues,
• for behavior modification to prevent transmission,
• to inform the person of available medical treatments and services and HIV support services agencies, and
• regarding the need to notify partners.

Consent of Minors

Can a physician test a minor for HIV without consent of a parent or guardian?

Yes, Connecticut law explicitly provides that the “consent of a parent or guardian shall not be a prerequisite to testing of a minor.”²⁶

Connecticut law also requires that at the time a minor receives the test result, if he or she was tested without parental consent, the provider must give the minor counseling or referrals to “work towards” involving the minor’s parents in decision-making about medical care.  In addition, the minor must receive actual counseling about the need to notify partners.²⁷

HIV Testing Without Consent

Are there circumstances under which Connecticut law permits HIV testing, even against a person’s wishes?

Yes, Connecticut law permits involuntary HIV testing, without the need for informed consent, in several situations.  The following four circumstances are the most important circumstances permitting involuntary testing:

1. Occupational Exposure – Significant Exposure Required.

Connecticut law permits a nonconsensual “HIV-related test” of the source of a “significant exposure”²⁸ to HIV which occurs during a person’s occupational duties.²⁹

In order to obtain a nonconsensual HIV test of a source, the subject employee must:

• Document the occurrence of a significant occupational exposure and complete an incident report within 48 hours;
• Have a negative baseline HIV test within 72 hours;
• Through a physician, have attempted to obtain and been refused, voluntary consent from the source;
• Be able to take meaningful immediate action…which could not otherwise be taken” (such as beginning a prophylactic drug regimen or making decisions regarding pregnancy or breastfeeding); and
• Have an “exposure evaluation group” determine that the above criteria are met.³⁰

How the Test Occurs: If the source is a patient in a health, correctional, or other facility, an available sample of blood may be tested or a blood sample may be drawn from the source and tested. If the source is not in such a facility and a physician certifies that there has been a significant exposure, the worker may seek a court order for testing.

The employer must pay the cost of the HIV test.

2. Inability to Consent

A licensed health care provider may order a nonconsensual HIV test when the subject is unable to consent or lacks capacity to give or refuse consent and the test is necessary for “diagnostic purposes to provide appropriate urgent care.”³¹

3. Prisoners

The Department of Correction may perform involuntary HIV testing on an inmate either because it is necessary for the diagnosis or treatment of an illness, or if the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate.³²³³ In both situations, there must be no reasonable alternative to testing available to achieve the same goal.

4. By Court Order

Connecticut law contains a broad provision permitting a court to order an HIV test when the court determines that there is a “clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result which cannot be accommodated by other means.”³⁴  In its assessment, the court must weigh the need for the test result against both the “privacy interests of the test subject and the public interest which may be disserved by involuntary testing.”^35,36

HIV Testing & Insurers

Do the same laws that pertain to testing done by health organizations pertain to testing done by insurers?

No, Connecticut law makes a distinction between HIV testing by health organizations and HIV testing done by insurers.  A separate set of laws governs HIV testing by insurers, rather than the general HIV testing statute.³⁷

In order to take any HIV-related test of an insurance applicant, the insurer must obtain written informed consent.³⁸ The Commissioner of Insurance has developed a required format for such consent. An insurer may use an alternative form which must be filed with the Insurance Commissioner.

May life and health insurers and health centers disclose a positive HIV-related test result to any group for any reason?

Yes, the law permits life and health insurers and health centers to disclose a positive HIV-related test result to an organization that collects information about insurance applicants for the purpose of detecting fraud or misrepresentation, but such disclosure must be in the form of a code that includes many other test results and could not therefore be used to reasonably identify an applicant’s test result as an HIV-related test.³⁹

HIV Testing of Pregnant Women and Newborns

Are there unique requirements for the administration of HIV tests for pregnant women and newborns?

Yes, any health care provider giving prenatal care to a pregnant woman must explain to her that HIV testing is a part of routine prenatal care and inform her of the health benefits to herself and her newborn of being tested for HIV infection.  The requirements for consent and post-test counseling are the same as those discussed at the beginning of this topic.⁴⁰ If the woman consents to HIV testing the result will be listed in her medical file.

If a pregnant woman is admitted for delivery and there is no documentation of HIV-related testing in her medical record, the health care provider must inform her of the health benefits to herself and her newborn of being tested for HIV infection either before delivery or within 24 hours after delivery, and the health care provider must then administer an HIV test unless there is a specific written objection from the patient.⁴¹

Are there HIV testing laws that are specific to newborns?

Yes, all newborns shall be administered an HIV-related test as soon after birth as medically appropriate, unless the infant’s parents object to the test as being in conflict with their “religious practice.”  This mandate does not apply if the mother was tested pursuant to the laws described above.⁴²

In addition, the Department of Public Health may establish a registry of data on infants who have been exposed to HIV or AIDS medication in order to study the potential long-term effects of such medication on infants.

AIDS Vaccine Researchers

Is there an HIV-related law that governs HIV/AIDS vaccine researchers?

Yes, the HIV-related law that governs HIV/AIDS vaccine researchers states that when a drug is developed and tested to determine its success as a vaccine against HIV/AIDS, a manufacturer, research institution, or researcher will not be held liable for civil damages resulting from clinical trials where the drug is administered to research subjects.  This immunity from liability must be presented to the research subject in writing and that person (or his or her parent or guardian in the case of a minor) must provide informed written consent to act as a research subject.⁴³

Privacy

Confidentiality of HIV Test Results

Are there laws in Connecticut that protect the privacy of medical information, such as HIV?

Connecticut law contains a broad prohibition against the disclosure by any person, without a written release, of “confidential HIV-related information.”^44,45

Does a person with HIV have a Constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor—e.g. police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

Exceptions to the Connecticut HIV Privacy Statute

Are there circumstances under which Connecticut law permits the disclosure of HIV status without written informed consent?

Yes, Connecticut law provides for disclosure of HIV status under specifically prescribed circumstances:

• To a health care provider or facility when necessary to provide “appropriate care or treatment.”⁴⁶
• To a health care worker or other employee where there has been a “significant occupational exposure” and the requirements articulated above are met.
• To employees of hospitals for mental illness operated by the Department of Mental Health and Addiction Services if the infection control committee determines the patient’s behavior poses a significant risk of transmission to another patient.⁴⁷  Disclosure may only occur if it is likely to prevent or reduce the risk of transmission and no reasonable alternative, such as counseling, is available to achieve the same goal.
• To employees of facilities operated by the Department of Correction to provide services related to HIV-infection or if the medical director and chief administrator determine that the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate at the facility.⁴⁸
• To life and health insurers in connection with underwriting and claims activity for life, health, and disability benefits.⁴⁹
• To any person allowed access to such information by a court order, as described above.  There are safeguards to protect the privacy of the source in any such court proceeding and subsequent disclosure of HIV-related information.⁵⁰

Remedies

How can violations of the testing and privacy statute be addressed?

Under Connecticut law, a person can recover compensatory damages for any injury suffered from a “willful” violation of the informed consent and confidentiality requirements.⁵¹

The phrase “willful” violation has been interpreted by the Supreme Court of Connecticut to mean simply that the disclosure of HIV-related information must be knowingly made.  It need not be intended to produce injury.⁵²

State HIV Reporting Requirements

Does Connecticut have reporting laws that require HIV or AIDS diagnoses to be reported to the Connecticut Department of Health?

Yes.  All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies.  Connecticut requires that physicians report to the Department of Public Health; 1) patients diagnosed with AIDS; 2) patients testing positive for HIV; 3) and children born to HIV positive women.  Information collected is kept confidential.

Duty To Warn

What does the phrase “duty to warn” refer to?

The term “duty to warn” refers to situations in which a counselor or physician may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances.

Does Connecticut have an HIV-specific duty to warn statute that pertains to physicians and public health officers?

Yes, Connecticut law permits both public health officers and physicians, under certain circumstances, to inform or warn partners that they may have been exposed to HIV.⁵³  The term “partner” means an “identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual.”⁵⁴  The requirements for such a disclosure by a public health officer are that:

• There is a reasonable belief of a significant risk of transmission to the partner;
• The public health officer has counseled the individual regarding the need to notify a partner and reasonably believes that the individual will not disclose to the partner; and
• The public health officer has informed the protected individual of his or her intent to make the disclosure.

A physician may only warn or inform a known partner if both the partner and the individual with HIV are under the physician’s care.  A physician may also disclose confidential HIV related information to a public health officer for the purpose of warning partners, if the physician takes the same steps with respect to his or her patient as public health officers must take above.

In making such a warning, the physician or public health official shall not disclose the identity of the HIV-infected individual and, where practicable, shall make such disclosure in person.

Does Connecticut have statutes that allow other health care providers to disclose a client’s HIV status?

No. The AIDS Law Project believes that any general laws related to “duty to warn”⁵⁵ do not pertain to HIV disclosure, because Connecticut law specifically protects the confidentiality of HIV-related information and makes no exceptions for mental health providers, such as psychologists and social workers.

Connecticut law contains a broad prohibition on the disclosure of confidential HIV-related information by any person.⁵⁶  Since the Connecticut legislature specifically provided a narrow exemption permitting warning by physicians and public health officers only⁵⁷, there is a strong argument that the legislature has addressed that issue and decided not to permit other providers to disclose HIV status.

Nevertheless, the issue of duty to warn is an evolving and unclear area of law. Mental health professionals must consult an attorney or supervisor for advice if he or she believes that a client’s communications justify breaching client confidentiality and disclosing a client’s HIV status to a third person.

Are there requirements for how to disclose HIV-related information?

Yes, whenever confidential HIV-related information is disclosed, the disclosure must be accompanied by the following statement, or by a statement using substantially similar language:

“This information has been disclosed to you from records whose confidentiality is protected by state law.  State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by said law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.”

Such a statement must be made in writing whenever possible.⁵⁸

Notation of any disclosure must be made in the subject’s medical records, except for disclosures made:

• To federal or state authorities;
• In the course of ordinary medical review; or
• To life and health insurers and government payers in connection with claims for life, health, and disability benefits.

 

Footnotes

²³ Conn. Gen. Stat. sec. 19a-582 (a)
²⁴ Conn. Gen. Stat. sec. 19a-581 (6)
²⁵ Conn. Gen. Stat. sec. 19a-582 (c)
²⁶ Conn. Gen. Stat. sec. 19a-582 (a)
²⁷ Conn. Gen. Stat. sec. 19a-582 (c)
²⁸ The threshold requirement that there be a “significant exposure” means “a parenteral exposure such as a needlestick or cut, or mucous membrane exposure such as a splash to the eye or mouth, to blood or a cutaneous exposure involving large amounts of blood or prolonged contact with blood, especially when the exposed skin is chapped, abraded, or afflicted with dermatitis.”  Conn. Gen. Stat. sec. 19a-581 (14).  Department of Health Services Regulations additionally list a variety of internal organ fluids whose contact can constitute a “significant exposure” and lists sexual assault in the course of occupational duties as a mode of “significant exposure” as well.  See Department of Public Health, Public Health Code sec. 19a-589-1(o) .Exposure to urine, feces, saliva, sweat, tears, and vomit is excluded, unless the fluid in question contains visible amounts of blood.  Likewise, human bites or scratches are excluded unless there is direct blood to blood or blood to mucous membrane contact.  Id.
²⁹ Conn. Gen. Stat. sec. 19a-582 (d)(5).
³⁰ An “exposure evaluation group” means at least three impartial health care providers, one of whom must be a physician, who determine the existence of a “significant exposure.”  Conn. Gen. Stat. sec. 19a-581 (15).
³¹ Conn. Gen. Stat. sec. 19a-582 (d)(1).
³²  “Significant risk of transmission” means “sexual activity that involves transfer of one person’s semen, vaginal or cervical secretions to another person or sharing of needles during intravenous drug use.”  Conn. Gen. Stat. sec. 19a-581 (13).
³³ Conn. Gen. Stat. sec. 19a-582 (d)(6), (d)(7)
³⁴ Conn. Gen. Stat. sec. 19a-582 (d)(8)
³⁵ Conn. Gen. Stat. sec. 19a-582 (d)(8)
³⁶ Additional provisions for HIV testing without consent under Connecticut law include: (1) testing human organs, tissues, blood, or semen which are being used in medical research or therapy or for transplantation; (2) for research purposes if the identity of the subject cannot be determined; or (3) to determine the cause of death.  Conn. Gen. Stat. sec. 19a-582 (d)(2-4).
³⁷ Conn. Gen. Stat. sec. 19a-586
³⁸ Conn. Gen. Stat. sec. 19a-586
³⁹ Conn. Gen. Stat. sec. 19a-587
⁴⁰ Conn. Gen. Stat. sec. 19a-593 (a)
⁴¹ Conn. Gen. Stat. sec. 19a-593 (b)
⁴² Conn. Gen. Stat. sec. 19a-55 (a & c)
⁴³ Conn. Gen. Stat. sec. 19a-591 (a & b)
⁴⁴ The term “confidential HIV-related information” means any information “pertaining to” a person who has “been counseled regarding HIV infection, is the subject of an HIV-related test or, who has been diagnosed as having HIV infection, AIDS, or HIV-related illness.”  Conn. Gen. Stat. sec. 19a-581 (7), (8).  It includes information which even reasonably could identify a person as having such conditions and information relating to such individual’s partners.  Conn. Gen. Stat. sec. 19a-581 (8).
⁴⁵ Conn. Gen. Stat. sec. 19a-583 (a)
⁴⁶ Conn. Gen. Stat. sec. 19a-583(a) (4)
⁴⁷ Conn. Gen. Stat. sec. 19a-583 (8)
⁴⁸ Conn. Gen. Stat. sec. 19a-583 (9)
⁴⁹ Conn. Gen. Stat. sec. 19a-583 (11)
⁵⁰ Conn. Gen. Stat. sec.  19a-583
⁵¹ Conn. Gen. Stat. sec.  19a-590
⁵² See Doe v. Marselle, 675 A.2d 835, 236 Conn. 845 (1996)
⁵³ Conn. Gen. Stat. sec. 19a-584
⁵⁴ Conn. Gen. Stat. sec. 19a-581 (10)
⁵⁵ Conn. Gen. Stat. sec. 52-146c, §52-146f
⁵⁶ Conn. Gen. Stat. sec. 19a-583(a)
⁵⁷ Conn. Gen. Stat. sec. 19a-581(12)
⁵⁸ Conn. Gen. Stat. sec. 19a-585 (a)

Questions & Answers (Accurate as of November 4, 2011)

Discrimination Based on HIV Status

Does Connecticut have laws protecting people with HIV from discrimination?

Yes, Connecticut has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, public accommodations and credit. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

Who is protected under these anti-discrimination laws?

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• Under the ADA, but not Connecticut law, persons who are regarded or perceived as having HIV.
• Under the ADA, but not Connecticut law, a person who does not have HIV, but who “associates” with a person with HIV — such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person or persons with HIV.

Employment

ADVERSE TREATMENT

What laws protect people with HIV from discrimination in employment?

People who are HIV-positive or who have AIDS are protected from employment discrimination under both Connecticut Human Rights Law¹  and the federal Americans with Disabilities Act (ADA). Both of these statutes prohibit discrimination in employment on the basis of a person’s disability. The Connecticut law covers employers with 3 or more employees in the United States; the ADA covers employers with fifteen or more employees.

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

REASONABLE ACCOMMODATION

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. Under the ADA and the Connecticut Fair Employment Practices Act, this is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities;
• Establishing a part-time or modified work schedule;
• Permitting time off during regular work hours for medical appointments;
• Reassigning an employee to a vacant job; or
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

How may a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact GLAD’s Legal InfoLine at (800) 455-GLAD in order to strategize about ways to address any such requests.

Does an employer have to grant a request for a reasonable accommodation?

No, an employer is not obligated to grant each and every request for an accommodation; an employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget and financial constraints;
• The costs of implementing the requested accommodation; and
• How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

EMPLOYER HEALTH INQUIRIES

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After an offer of employment, can an employer require a medical exam?  What guidelines apply?

If an employer has 15 or more employees, they must comply with the ADA. After a conditional offer of employment, an employer may require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, the physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.

After employment has begun, the ADA permits an employer to only require a physical examination if it is job-related and consistent with business necessity.

HEALTH CARE WORKERS

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation. Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”²

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

ASSESSING DISCRIMINATION

How does an employee determine whether he or she has experienced discrimination?

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:
   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position?  You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Public Accommodation

Do Connecticut laws protect against discrimination by health care providers, businesses, and other public places?

Yes, under Connecticut law,³ and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Connecticut law.

How have courts and medical experts responded to these arguments?

Courts and medical experts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous”— Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions. For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.⁴ In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise”— In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider. In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.⁵ The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA⁶, it is illegal for a health care provider to:

1. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

How does Connecticut law compare with the ADA?

Connecticut law will be interpreted in a similar manner to the ADA.

Housing

What laws prohibit discrimination in housing?

It is illegal under both Connecticut law⁷ and the National Fair Housing Amendments of 1989, to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

Are there exceptions to the housing anti-discrimination laws introduced above?

Yes, Connecticut law exempts a rental portion of a single-family dwelling if the owner maintains and occupies part of the living quarters as his or her residence, or for the rental of a unit in a residence that has four or fewer apartments when the owner occupies one apartment. In addition, the Fair Housing act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit the occupancy to members.

Credit

What protections exist under Connecticut anti-discrimination law with regard to credit?

Any person who “regularly extends or arranges for the extension of credit” for which interest or finance charges are imposed (e.g. a bank, credit union, or other financial institution), may not discriminate because of HIV status in any credit transaction.⁸

Remedies for Discrimination

CONNECTICUT LAW

How do I file a complaint of discrimination?

You file your complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). The main office of the CHRO is at 21 Grand St., Hartford, CT 06106. You should call them because they will want you to file your case in the appropriate regional office. Their number is (800) 477-5737, and their website is http://www.state.ct.us/chro/.  There is no charge to file a complaint.

The complaint must be in writing and under oath, and it must state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts, and it is advisable also to state the times they occurred.⁹

If you are a state employee, you may file your case directly in court. State employees can skip over the CHRO process entirely.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the CHRO process, but also employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

For most people, a complaint must be filed with the CHRO within 180 days of the last discriminatory act or acts.¹⁰  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the CHRO?¹¹

When you file a complaint with the CHRO, you will be given a packet of information explaining the CHRO procedures and deadlines. Please review these and follow the deadlines.

After filing your complaint, and within 90 days of receiving the answer of the respondent, the CHRO will review the complaint and answer to determine if any further investigation is necessary. This is called a merit assessment review (MAR). Since many cases are dismissed at this stage of the proceedings, it is important that you reply to the respondent’s answer within 15 days of receiving it.

After the MAR, if the case is dismissed, you will be given 15 days to request the right to move your complaint from CHRO into the courts.  If you do not request to remove your complaint from CHRO, there will be a review of your case, and within 60 days a decision will be made to either reinstate your complaint or to uphold the dismissal.

After the MAR, if the case is not dismissed, an investigator will be assigned and a mandatory mediation conference will be held within 60 days.  If negotiations fail to produce a settlement agreeable to all parties, either party or the CHRO can request early legal intervention.  The CHRO has 90 days to act upon this request and make one of the following decisions:

1. the investigator will continue to collect evidence and will make a decision of “reasonable cause” or “no reasonable cause.”
2. a Hearing Officer will be appointed to decide the merits of the case in a trial-type hearing.
3. the complaint will be dismissed.

Note that in housing discrimination cases, the CHRO must complete both its investigation within 100 days of filing and the final disposition within one year, unless it is impracticable to do so.¹²

What are the legal remedies the CHRO may award for discrimination if an individual wins his or her case there?

Employment: may include hiring, reinstatement or upgrading, backpay, restoration in a labor organization, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices.)¹³

(Note that when cases are filed in court, emotional distress damages and attorneys’ fees are also available to a successful complainant. These are not available from the CHRO.)¹⁴

Housing: damages (expenses actually incurred because of unlawful action related to moving, storage, or obtaining alternate housing); cease and desist orders, reasonable attorney’s fees and costs, and other relief that would fulfill the purposes of the anti-discrimination laws.¹⁵ The CHRO may also order civil fines to be paid to the state.¹⁶

Public Accommodations: cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws. The CHRO may also order civil fines to be paid to the state.¹⁷

Credit: cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. allowing person to apply for credit on non-discriminatory terms).¹⁸

Should I take my case away from the CHRO and file in court?  How do I do so?

This is a decision you should make with your lawyer. Greater damages are available to you in state court than at the CHRO, including emotional distress damages and attorney’s fees.

To sue an entity in state court as opposed to the CHRO, you must follow several steps and meet various deadlines.¹⁹

• Your complaint must have been filed on time at the CHRO (i.e., within 180 days of the last act of discrimination);
• Your complaint must have been pending with the CHRO more than 180 days (although if you and your employer agree to request the case’s removal to court, you may do so before the 180 days elapse), or the merit assessment review must have been completed;
• You must request a release of your complaint from the CHRO for the purpose of filing a court action (which the CHRO must grant except when the case is scheduled for public hearing or they believe the complaint can be resolved within 30 days);
• You must file your court action within 2 years of the date of filing your complaint with the CHRO; and
• You must file your court action within 90 days after you receive a release from the CHRO to file your case in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal for any employer to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who oppose any discriminatory employment practice, as well as those who participate in certain other proceedings.²⁰  If the employer takes action against an employee because of that conduct, then the employee should be able to state a claim of retaliation.²¹

Likewise, it is illegal for a landlord to “coerce, intimidate, threaten or interfere with” anyone who files a complaint.²²

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD Legal InfoLine at 800-455-4523 (GLAD) any weekday between 1:30 and 4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering information to make an informed choice.
 
Some people prefer to meet with an attorney to evaluate the strength of their claims. It is always helpful if you bring an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

FEDERAL LAW

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act and the employer must have at least 15 employees. However, an employee filing a disability case with the CHRO does not have to file a separate claim with the EEOC. There is a check-off on the CHRO complaint form to have the CHRO file the claim with the EEOC. The EEOC will then defer to the CHRO’s investigation. If a person initially institutes his or her complaint with the CHRO, the time limit for filing a Federal complaint is extended to the earlier of 300 days or 30 days after the CHRO has terminated the case. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding. To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

Footnotes

¹ CGSA sec. 46a-60
² Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4th Cir. 1995)
³ CGSA sec. 46a-64
⁴ 524 U.S. 624 (1998)
⁵ 898 F. Supp. 1157 (E.D. La 1995)
⁶ 42 U.S.C. §§ 12181-12188
⁷ CGSA sec. 46a-64c
⁸ Conn. Gen. Stat. sec. 46a-66
⁹ Conn. Gen. Stat. sec. 46a-82
¹⁰ Conn. Gen. Stat. sec. 46a-82(e)
¹¹ See generally, Public Act 11-237
¹² Conn. Gen. Stat. sec. 46a-81e(e)
¹³ Conn. Gen. Stat. sec. 46a-86 (a - c)
¹⁴ See Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995); Delvecchio v. Griggs & Browne Co., Inc., 2000 Conn. Super. LEXIS 1149 (April 17, 2000)(“The CHRO is without authority to award a prevailing party attorneys’ fees, punitive or compensatory damages or damages for emotional distress.”)
¹⁵ Conn. Gen. Stat. sec. 46a-86 (a, c)
¹⁶ Conn. Gen. Stat. sec. 46a-81e(f)
¹⁷ Conn. Gen. Stat. sec. 46a-86 (a); sec. 46a-64 (c)
¹⁸ Conn. Gen. Stat. sec. 46a-86 (a); sec. 46a-98 (outlining additional damages available for cases filed in Superior Court within one year of discriminatory act)
¹⁹ Conn. Gen. Stat. sec. 46a-101 to 46a-102
²⁰ Conn. Gen. Stat. sec. 46a-60
²¹ Compare Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man)
²² Conn. Gen. Stat. sec. 46a-64c(a)(9)

Questions & Answers (Accurate as of December 10, 2009)

Harassment and Discrimination at School

As was mentioned in the section on Anti-Discrimination Law above, schools are considered places of public accommodation,¹¹⁹ and therefore they may not discriminate on the basis of sexual orientation or gender identity in their accommodations, advantages, facilities or privileges.¹²⁰  As a result, you may be able to pursue a complaint at the Human Rights Commission or in Superior Court.

The questions and answers that follow list other rights and protections for students.

Are there any state laws that protect me from discrimination and harassment at school because of my actual or perceived sexual orientation or gender identity?

Yes.  The Vermont Equal Educational Opportunity Act provides that the state must provide “substantially equal access” to education for all Vermont students.¹²¹ Also, since schools are considered public accommodations in Vermont, students are protected under the Public Accommodations Act.

What kinds of conduct does the law cover?

The law prohibits exclusion from a public school, discrimination in taking advantage of school programs, and student harassment.¹²²

A school may not be so bold as to say, “Don’t come here,” or “You can’t take track,” but if they fail to redress pervasive harassment against you at school or in a particular class or activity, they may have said so in effect. 

Under Vermont law, “harassment in schools” means “...an incident or incidents of verbal, written, visual, or physical conduct based on or motivated by a student’s or a student’s family member’s actual or perceived...sex, sexual orientation, [or] gender identity…that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment.”¹²³ Other protected classes under this law are race, creed, color, national origin, marital status and disability.

Harassment and discrimination are also explicitly prohibited at Vermont state colleges, which are required to establish policies and enforcement procedures to address discrimination complaints.¹²⁴

Are there other state laws that protect me from discrimination and harassment at school because of my or any of my family members’ actual or perceived sexual orientation or gender identity?

Yes. School boards are required to develop, adopt, ensure the enforcement of, and make available harassment and hazing prevention policies.¹²⁵ These policies must be at least as stringent as the model policy established by the Vermont Department of Education, which expressly prohibits discrimination based on sex, sexual orientation, and gender identity. The model policy can be found at http://education.vermont.gov/new/pdfdoc/pgm_safeschools/pubs/bullying_prevention_04.pdf

.

Are there federal laws that protect me?

Possibly.  Under federal law, public schools that receive federal funds may not discriminate on the basis of sex.  Sometimes, the harassment of a gay student will be sexual harassment or harassment based on a student’s failure to conform to a particular gender stereotype, both of which are forbidden by this federal law, known as Title IX.  Complaints can be made to your school Title IX coordinator, as well as to:

The U.S. Department of Education:
Office of Civil Rights
33 Arch Street, Suite 900
Boston, MA 02110-1491
(617) 289-0111
OCR.Boston@ed.gov  

Additionally, some kinds of discrimination and harassment may violate a student’s constitutional rights.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor. When harassed, if you feel safe, you may wish to speak to the perpetrators.

In addition, read your school policies and notify whoever is supposed to be notified—usually a vice principal or Title IX coordinator.  You should document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.  Keep copies of all documentation for future reference.

At the same time, or after contacting the administration as set out above, you may want to contact the Safe Schools Program of the Vermont Department of Education.  This program is responsible for implementing initiatives related to the equal educational opportunities and anti-harassment provisions discussed above.  You can reach them at:

Safe Schools Program
Vermont Department of Education
120 State Street
Montpelier, VT 05620-2501
(802) 828-3130
http://www.state.vt.us/educ/new/html/pgm_safeschools.html

Alternatively, since schools are considered public accommodations in Vermont, you may want to file a complaint with the Vermont Human Rights Commission (see discussion of Public Accommodations above) or other legal action.  Contact GLAD for assistance and attorney referrals.

Gay/Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

Generally, yes.  A federal law, known as the “Equal Access Act,” provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings.  GLAD brought and won a case for students at West High in Manchester, New Hampshire on this very basis. See more about this case at Manchester High GSA..

Footnotes

¹¹⁹9 V.S.A. § 4501. 
¹²⁰9 V.S.A. § 4502.
¹²¹16 V.S.A. § 1 et seq.
¹²²A recent case of student harassment decided by the Vermont Supreme Court is Washington v. Pierce, 179 Vt. 318, 895 A.2d 173 (2005).
¹²³16 V.S.A § 11 (26).
¹²⁴16 V.S.A. § 2182.
¹²⁵16 V.S.A. § 565.

Questions & Answers (Accurate as of May 26, 2011)

Hate Crimes & Violence

Does Vermont have a hate crimes law?

Yes.  Vermont law imposes increased penalties for crimes committed because of hatred or animus toward the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the U.S. armed forces, handicap, sexual orientation, or gender identity.⁸⁶

In addition to being subject to criminal prosecution, the Attorney General’s office may seek civil penalties from a perpetrator of up to $5000 (payable to the state) plus costs and attorney’s fees for every violation of the criminal hate crimes statute and for violations of any injunctions imposed (see discussion below).⁸⁷

How does the law define what is a hate crime?

The hate crimes law applies to “[a] person who commits, causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap…, sexual orientation or gender identity.”⁸⁸

According to the Attorney General’s office, assaults, unlawful mischief (damage or destruction of property), telephone harassment and disorderly conduct (by public yelling of threats and abuse) are the most common hate crimes in Vermont.⁸⁹

Where can I call if I think I’ve been a victim of a hate crime?

In addition to contacting the local police, you may contact the Civil Rights Unit of the Attorney General’s Office at (802) 828-5511 or civilrights@atg.state.vt.us.  Be sure to explain all of the factors that make you think this was a crime of bias.

What other options do I have if I think I have been the victim of a hate crime?

Victims of hate crimes can also file a civil claim in the Superior Court of the county where they live or where the crime occurred.⁹⁰  These claims can seek:

• an order to stop the hate-motivated behavior and restrict the perpetrator’s ability to contact you in any way;
• money damages to compensate for the injury caused by the crime;
• money damages to punish the perpetrator;
• costs and attorney’s fees; and
• any other relief the court thinks is appropriate.

Through this process, you have the right to obtain very similar protections to those available to domestic violence victims.  (See discussion above).  If you have been the victim of a hate crime or of a stalker, you can go to Superior Court and quickly obtain a preliminary order providing protection from the perpetrator of the hate crimes.  This order may:

• prohibit the perpetrator from committing any crime against you or other people;
• prohibit the perpetrator from contacting you; and
• prohibit the perpetrator from coming near you, your home, or other places where you are likely to be (i.e. workplace, homes of family members, etc.).

This preliminary order will remain in effect for a period of time set by the court up to 120 days, or until there is a final decision in the case.⁹¹ 

A final order can be issued for up to two years, but the court can extend the order for any amount of time if it finds it is necessary to protect the victim.  Violating these kinds of orders is a crime, subject to immediate arrest, imprisonment and fines.⁹²

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act⁹³ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case. The Federal Bureau of Investigation (FBI) encourages victims of hate crimes to file a report with the FBI as well as local and state authorities.  The Boston FBI field office can be reached at 617-742-5533.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does Vermont have a sodomy law?

No. Although Vermont once had a “fellation” law⁹⁴,  the legislature repealed that statute in 1977.  Consensual, sexual activity between adults in private is not a crime anywhere in the U.S.

If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

Gay people are subject to the full range of laws to which non-gay people are subject, such as those that criminalize sex in public, forcible sex, or sex with minors.  Commercial sex, i.e. prostitution, is also illegal.

Most gay people arrested for sexual activity are arrested for activity occurring in a public setting.  The law regarding lewd and lascivious conduct prohibits “open and gross lewdness and lascivious behavior.”⁹⁵ This law targets sexual activity that is obvious and not concealed, and requires no more than one witness. ⁹⁶  This one witness can be anyone, including the person who complains about the conduct or the police. 

This law has been applied to people having sexual encounters in public.  Bear in mind that sexual activity should not be illegal simply because it takes place outdoors, in parked cars, or on public lands.  A great deal depends on the overall circumstances (i.e. time of day, level of seclusion).⁹⁷ 

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex – whether between people of the same sex or of a different sex.  Socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, however, regardless of where it occurs.  No one should be arrested or hassled for foot-tapping, hand-holding, cruising, talking, flirting, or non-sexual touching.

As a practical matter, regardless of one’s rights, having sex in a public venue or outdoors is a risky business.

Does Vermont have a “sex offender registry” type of law?

Yes.  Every state now has such a law, although the terms differ from state to state.  The Vermont Criminal Information Center (VCIC) of the Department of Public Safety has maintained a sex offender registry since 1996.  It participates in the National Sex Offender Registry Program managed by the Federal Bureau of Investigation.

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children.  However, if someone is convicted of a single offense under the lewd and lascivious conduct statute, they are considered a sex offender subject to the registration requirements.⁹⁸

In addition, Vermont law allows the state to request that a person be designated as a sexually violent predator within ten days after that person is convicted of sexual assault or aggravated sexual assault.  The court decides this at the time of sentencing and requires clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.⁹⁹

How can I found out what charges I have been convicted of?

You can contact your local police, or call the VCIC, (802) 244-8727, to request a form to get a copy of your criminal records.  You will need to fill out the form and return it to:
VCIC, Department of Public Safety
103 South Main Street
Waterbury, VT 05671

What if my conviction is really old?  Or in another state?

The sex offender registration laws only apply to ¹⁰⁰:

• those convicted of a sex offense in Vermont on or after July 1, 1996;
• those convicted in Vermont or another state before July 1, 1996, but a) released from incarceration on or after that date, or b) being supervised in the community as of that date; and
• those convicted or released from confinement in another state on or after July 1, 1986 and who establish residence in Vermont on or after July 1, 1996.

What obligations are imposed on “sex offenders”?

Upon conviction and prior to sentencing, a sex offender must provide the court with their name, date of birth, general physical description, current address, social security number, fingerprints, current photograph and current employment.¹⁰¹

When a sex offender is sentenced to probation or an alternative sentence under community supervision, or when a sex offender is about to be released from prison, the Department of Corrections forwards to the Department of Public Safety the above listed information, as updated, as well as the address upon release, the name, address and phone number of the local department of corrections in charge of monitoring the sex offender, and documentation of any treatment or counseling received.¹⁰²

A sex offender is required to report to the Department of Public Safety annually within ten days of each anniversary of the person’s date of release.  A person who has been deemed to be a sexually violent predator must report to the Department every 90 days.  If a person in either of these categories changes addresses, s/he must report to the Department within three days.  Upon relocating to another state, the person must notify the Department and register with the new state’s law enforcement agency within three days if the new state has a registration requirement.¹⁰³ The Department will then notify the local law enforcement agency.¹⁰⁴ 

How long do these registration requirements last?

Except in the circumstances discussed below, this registration requirement continues for a sex offender until ten years have passed since the person was released from prison or discharged from parole, supervised release or probation, whichever is later.¹⁰⁵ 

The registration requirement continues for the person’s life if s/he had at least one prior conviction for a sex offense in another jurisdiction, if s/he was convicted of sexual assault or aggravated sexual assault (unless the age of the victim was the basis for the conviction), or if s/he was determined to be a sexually violent predator. ¹⁰⁶  After ten years, however, a person required to register for life can petition the district court for a termination of notification such that information about him or her is no longer given to local law enforcement and the surrounding community.¹⁰⁷

Who may obtain information from the registry?

The information in the registry may be disclosed for any legal purpose, including for use by local, state and federal law enforcement agencies for purposes of law enforcement activities; state and federal governmental agencies conducting confidential background checks; and any employer authorized by law to request records and information from the VCIC where the disclosure to such an employer is necessary to protect the public.  A person required to register may also access the information contained in the registry for purposes of reviewing the accuracy of any record relating to him or her.  The identity of a victim of an offense requiring registration shall not be released.¹⁰⁸

In addition, the public can gain access to information about people required to register as sex offenders from the Departments of Corrections of Public Safety or from local law enforcement agencies when the requestor can state a specific concern about his or her personal safety or that of his or her family.¹⁰⁹

What if my conviction is overturned?

A person whose conviction is reversed or dismissed is no longer subject to registration requirements and any information about him or her in the registry relating to that conviction shall be removed and destroyed.  Further, anyone to whom that information was sent shall be notified and required to remove and destroy the information as well. ¹¹⁰

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.¹¹¹ The statutory rape law does not apply, however, to consensual sexual activity between two people under the age of 16.¹¹²

Police Harassment

I have been told by police to “move along” from public areas. Is that legal?

Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity.  Public places belong to everyone.  They are also likely to be places of public accommodation to which anti-discrimination laws apply.  Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.¹¹³

What should LGBT people expect from interactions with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may, of course, approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone does not constitute grounds for the person to be arrested.  A police officer may generally only stop a person briefly for purposes of investigation if s/he has “reasonable suspicion” that a crime has been committed or is about to be committed.¹¹⁴  In addition, in some circumstances, police officers without reasonable suspicion of criminal activity are permitted to intrude on a person’s privacy to carry out “community care-taking” functions, such as aiding people in need of assistance.¹¹⁵  These intrusions must be objectively reasonable and based on specific articulable facts.¹¹⁶

An arrest can only occur upon “probable cause” that a crime has been committed.¹¹⁷  When an encounter with the police becomes too intrusive to qualify as an investigatory stop, as described above, the encounter may be deemed a full scale arrest and must be justified by probable cause.¹¹⁸

What can I do if I believe the police have treated me improperly?

Complaints may be made to any individual police department for matters concerning its officers.  Many departments have their own Internal Affairs Divisions that receive and investigate civilian complaints against police officers. 

Complaints to the Vermont State Police may be made to:
The Office of the Director
Vermont State Police Headquarters
103 South Main Street
Waterbury, VT 05671
(802) 244-7345

In addition, complaints about police harassment based on sexual orientation or gender identity may also be filed with the Vermont Human Rights Commission.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals.

Footnotes

⁸⁶13 V.S.A. § 1455. 
⁸⁷13 V.S.A. § 1466. 
⁸⁸13 V.S.A. § 1455. 
⁸⁹ http://www.state.vt.us/atg/hate%20crimes.htm.
⁹⁰13 V.S.A. § 1457. 
⁹¹13 V.S.A. § 1461. 
⁹²13 V.S.A. §§ 1461, 1465
⁹³See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111X7TYvf:e1999565:
⁹⁴See State v. La Forrest, 71 Vt. 311 (1899).
⁹⁵13 V.S.A. § 2601. 
⁹⁶State v. Benoit, 158 Vt. 359 (1992). 
⁹⁷See State v. Franzioni, 100 Vt. 373 (1927) (sexual conduct on fairgrounds grandstand at night was not “open and gross” because it was concealed from everyone else).
⁹⁸For a full list of the offenses, see 13 V.S.A. § 5401.
⁹⁹13 V.S.A. § 5405.
¹⁰⁰Public Act 124, § 3 (1995).
¹⁰¹13 V.S.A. § 5403.
¹⁰²13 V.S.A. § 5404.
¹⁰³13 V.S.A. § 5407 (a). 
¹⁰⁴ 13 V.S.A. § 5411.
¹⁰⁵13 V.S.A. § 5407 (e).
¹⁰⁶13 V.S.A. § 5407 (f). 
¹⁰⁷13 V.S.A. § 5411.
¹⁰⁸13 V.S.A. § 5402.
¹⁰⁹13 V.S.A. § 5411.
¹¹⁰13 V.S.A. § 5413.
¹¹¹13 V.S.A. § 3252. 
¹¹²In re G.T., 170 Vt. 507, 518 (2000).See also 13 V.S.A § 3252(c) (No person shall engage in a sexual act with a child who is under the age of 16, except: (1) where the persons are married to each other and the sexual act is consensual; or (2) where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.)
¹¹³See Kent v. Dulles, 357 U.S. 116, 126 (1958); see generally Vt. Const. Ch. 1, art. 11 (search and seizure regulated).
¹¹⁴State v. Schmitt, 150 Vt. 503, 507 (1988); State v. Phillips, 140 Vt. 210, 215 (1981) (police can make brief investigatory stop based on reasonable suspicion to ask a few questions, but further detention must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 16 (1968). 
¹¹⁵State v. Marcello, 157 Vt. 657, 658 (1991). 
¹¹⁶State v. Burgess, 163 Vt. 259, 262 (1995
¹¹⁷Vt. R. Crim. P. 3(a)
¹¹⁸State v. Chapman, 800 A.2d 446, 449 (Vt. 2002).

Questions & Answers (Accurate as of May 26, 2011)

Marriage and Civil Unions

Can same-sex couples marry in Vermont?

Yes, beginning September 1, 2009.  On April 7, 2009, Vermont became the fifth state to allow same-sex couples to marry (Massachusetts, Connecticut, Iowa and California are the other four, but the right to marry in California was rescinded by a constitutional ballot initiative on November 4, 2008), and, since Vermont, New Hampshire, Maine, and the District of Columbia have passed marriage equality laws, but the Maine law was overturned by a voter referendum in November 2009.

Vermont was the first state to obtain marriage rights for same-sex couples through a legislative process rather than a court case.  The bill, S.115 An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage⁴² (hereafter referred to as the “Marriage Act”), was passed by the legislature on April 3, 2009, vetoed by the Governor on April 6, 2009 and the veto was overridden by the Senate (23-5) and the House (100-49) on April 7, 2009.

After nearly 15 years of relentless work, Vermont Freedom to Marry, under the leadership of Beth Robinson, succeeded in reaching its goal of marriage equality.  GLAD congratulates Vermont Freedom to Marry on their ground-breaking victory and was pleased to have been able to provide some assistance and support. The “Marriage Act” was implemented on September 1, 2009.

The process for getting married in Vermont basically requires the following basic steps:

1. an eligible couple submits an application for a license in either the town or city in Vermont where one of the parties lives (out-of-state couples can go to any town or city clerk);⁴³
2. the couple must pay the applicable fee and receive a marriage license from the clerk;
3. the couple must have the marriage solemnized (i.e., have a ceremony) within 60 days of filing the application;⁴⁴
4. once the ceremony has been performed, the person who performed it has 10 days to send the license back to the city or town where it was issued; and
5. the clerk will then file the original and the couple can receive an official certificate of their marriage.⁴⁵

The detailed process for getting married in Vermont, whether you should enter a marriage, and what it all means are questions that are addressed in GLAD’s publication, How To Get Married In Vermont.

Can Vermont same-sex couples get married anywhere else?

Yes.  Within the United States, it is now possible for same-sex couples to legally marry in Massachusetts, Connecticut, New Hampshire (beginning January 1, 2010) and Iowa. GLAD has publications with detailed information about how to get married in any of the New England states where same-sex couples can marry see www.glad.org/rights/publications/c/marriage, and Lambda Legal (312-663-4413) has information about getting married in Iowa at Iowa Marriage FAQ.

Canada allows same-sex couples to marry and has no residency requirement.  For information about Canada see GLAD’s publication, What Do I Need to Know About Getting Married in Canada?

In addition, the Netherlands, Belgium, Spain, South Africa, Norway, Sweden, and Portugal allow same-sex couples to marry, but some of these countries have requirements that make it difficult for non-citizens to marry.

How will the marriage of a same-sex couple be respected?

Vermont will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a Vermont marriage will be respected as a marriage in Massachusetts, Connecticut, New Hampshire (effective 1/1/2010), Iowa and the District of Columbia (even though same-sex couples cannot marry there).  A Vermont marriage will be respected as a civil union in New Hampshire (until 1/1/2010) and New Jersey.

On November 19, 2009, the New York Court of Appeals, that state’s highest court, unanimously affirmed the rulings of two lower courts that governmental agencies may continue to offer benefits to the same-sex spouses of public employees who legally marry outside the state.  Over the objection of three of the seven members of the Court, the majority did not rule on the general issue of whether marriages of same-sex couples, valid where performed, are entitled to full legal recognition under New York’s longstanding and expansive marriage recognition rule.  Once again, as the New York court did three years ago in its Hernandez decision denying marriage equality to same-sex couples, the majority expressed its “hope that the Legislature will address this controversy.”  For more information about marriage recognition in New York, contact Lambda Legal at 212-809-8585. 

However, because of the 1996 federal Defense of Marriage Act (DOMA), the federal government will not respect the marriage of any same-sex couple, and so married same-sex couples will not have access to the 1138 federal laws that pertain to marriage.  On March 3, 2009, GLAD filed a federal lawsuit, Gill et al. v. OPM et al., to challenge Section 3 of DOMA; see www.glad.org/doma for detailed information.  Should GLAD succeed in this lawsuit, or should Congress repeal DOMA Section 3, some or all of the federal laws where marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected.

Can same-sex couples obtain any other legal recognition of their relationships in Vermont?

Until September 1, 2009, same-sex couples were able to enter into a civil union in Vermont. However, effective September 1, 2009, Vermont no longer issues civil union licenses, but it will continue to recognize civil unions and provide those couples with all of the protections and responsibilities of marriage under Vermont state law.⁴⁶
 
When the legislature enacted the civil unions law, it also established “reciprocal beneficiary” relationships. These allow people who are at least 18 years old, are not parties to a marriage, civil union or other reciprocal beneficiary relationship, and are related by blood or adoption, to receive the protections and responsibilities granted to spouses in the areas relating to medical decision-making, end-of-life decisions, and abuse prevention.⁴⁷  These protections are extremely limited and do not come close to the scope of a civil union.

People enter into a reciprocal beneficiary relationship by presenting a signed, notarized declaration of a reciprocal beneficiaries relationship to the Commissioner of Health, paying a $10 fee, and receiving a certificate reflecting the filing of the declaration.⁴⁸  This relationship can be terminated either by following the same filing process for entering it, or if one of the parties enters into a civil union or marriage.⁴⁹

Without joining in marriage or a civil union, what steps can a couple take to safeguard their legal relationship in Vermont?

There are far more modest steps available to people who seek certain limited legal protections and do not desire a marriage or civil union.  These include:

1. Relationship Agreement or Contract:  Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation.  This kind of document serves a similar function to a pre-nuptial agreement.  As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid.  Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children.  (See discussion below concerning parenting agreements)
2. Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled. ⁵⁰  If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A person may also indicate his or her preference regarding the appointment of a guardian—a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (court considers preference of incapacitated person in appointing guardian). ⁵¹  The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.
3. Advance Directives for Health Care and Disposition of Remains: Under Vermont law, an individual may appoint an agent to make decisions for him or her upon incompetence, incapacity or death⁵² and provide the agent with an advance directive that, for example, can:⁵³
   • direct the type of health care desired or not desired;
   • direct which life sustaining treatments are desired or not desired;
   • identify persons with whom the agent should not consult or share information;
   • authorize release of health information to other persons in addition to the agent;
   • nominate persons to serve (or not serve) as the individual’s guardian should that be needed;
   • direct the disposition of the person’s remains and the funeral arrangements.

   Without an advance directive, medical providers and funeral directors look to a spouse or next-of-kin to make decisions.  The advance directive can be revoked at any time by creating a new advance directive or by a clear expression of revocation.⁵⁴  People often give a copy of their advance directive to their doctors and sometimes to family members.  In addition, instructions regarding anatomical gifts may be included within the advance directive for health care or on a driver’s license.⁵⁵

4. Will: If a person is neither married, nor joined in a civil union, without a will, his or her property passes to:  (1) his or her children or (2) his or her family.⁵⁶  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child in a will.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although some forms are available, the form may not be suited to your individual needs and wishes.  Moreover, an attorney may be able to help you achieve your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with your specific instructions.

If a couple separates, what is the legal status of a relationship/partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  If a couple has a civil union, divorce laws apply, and any such agreements will be treated the same as agreements between married couples.⁵⁷  Absent a civil union or an agreement, couples can get involved in costly and protracted litigation about property and financial matters, with no divorce system to help them sort through it. 

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status that recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner that were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.” ⁵⁸

Does Vermont provide domestic partner benefits to state employees?

Yes.  The State’s Personnel Policies and Procedures extend domestic partnership benefits to state employees. The benefits include medical benefits, bereavement and visitation rights. State employees interested in receiving health and dental insurance for their partners should contact the Department of Personnel Employee Benefits and Wellness Division at (802) 828-3455 for an application, which can also be found on the state website at http://www.vermontpersonnel.org/employee/pdf/dompartner.pdf.

In addition, Vermont state employees who are spouses in a marriage or civil union are eligible for the same benefits available to different-sex married state employees.  If you have a civil union, you do not need to fill out the domestic partners application.

Can cities and towns in Vermont provide domestic partner health insurance benefits to their own employees?

Yes. Some of the cities that offer medical benefits for domestic partners of municipal employees include Burlington and Middlebury.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. 

Are there differences in treatment of benefits extended to domestic partnership, civil union, and married spouses?

Yes.  Even when employers provide these benefits, sometimes federal laws require different taxation or other treatment of the benefits for domestic partners and civil union spouses as compared to different-sex married spouses.  For example, an employee must pay income tax on the value of his or her partner’s health insurance benefits, but a different-sex married spouse does not.⁵⁹  For pensions and survivor benefits, a domestic partner has no right to sign off if his or her partner decides to name someone other than him or her as the beneficiary of a pension although a different-sex married spouse would have that right.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

No.  Although the non-discrimination law says that an employer cannot discriminate on the basis of sexual orientation, and even though employee benefits are a form of compensation, the law states expressly that the law cannot be construed to change the definition of family or dependent in an employee benefit plan.⁶⁰ Thus, an employer may provide domestic partner benefits if it chooses to do so, but it cannot be forced to do so through the state non-discrimination law.

Adoption

Can a single gay individual adopt a child in Vermont?

Yes.  Vermont law provides that any person may adopt or be adopted by another person for the purpose of creating the relationship of parent and child between them.⁶¹

Can same-sex partners together adopt a child in Vermont?

Yes.  The Vermont Supreme Court allowed a lesbian couple to adopt the biological children of one of the women in 1993.⁶²  Subsequently, the Vermont legislature amended the adoption statute and now it provides, “If a family unit consists of a parent and the parent’s partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent.”⁶³

What is the advantage of doing a second parent or joint adoption?

A joint or second parent adoption is a court judgment that the child has two legal parents for all purposes.  In addition to providing legal and emotional security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization. 

With an adoption, if one parent dies, the other parent will automatically assume custody of the child.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will.  The child could also collect social security survivor benefits based on the deceased parent’s work record. 

Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.

Do we need to do a second-parent adoption if we have a marriage or civil union?

Emphatically yes.  A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple.⁶⁴ While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

• Miller-Jenkins Sidebar: Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt.,2006), cert. denied, 127 S.Ct. 2130 (2007); Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88 (2006), cert. denied, S. Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing. In that case, Janet and Lisa had a child while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. While Virginia is currently deferring to Vermont, legal maneuvering threatens to reopen the issues. For more information, see Miller-Jenkins.  GLAD and local counsel represent Janet in the Vermont proceedings.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

In 2006, in the case of Miller-Jenkins v. Miller-Jenkins, the Vermont Supreme Court rejected an attack on the parentage of the non-birth parent by that parent’s civil union spouse in the context of a dissolution action.  The couple had not adopted, and that gave an opening to the birth parent to argue the issue.  The Vermont court ruled that the civil union, as well as the fact that they had undertaken to form a family together with the assistance of artificial insemination, meant that the child was the legal child of both civil union spouses.

While the result in Miller-Jenkins is a good one, it came only after years of litigation, uncertainty and one parent’s separation from the child that could have been avoided if the couple had adopted in the first place.  Moreover, the circumstances of the Miller-Jenkins case will not apply to everyone:  when one party in a couple relocates, things can change for the worse.  Please call GLAD’s Legal InfoLine for information on these issues. 

In Miller-Jenkins, the Vermont Supreme Court did not discuss its former opinion in Titchenal v. Dexter⁶⁵. In that case, the Vermont Supreme Court ruled that the Superior Court had no jurisdiction to entertain the visitation claim of a lesbian parent who had not adopted the child in a conflict between former lesbian partners. That case did not address the jurisdictional power of the Family Court to decide such cases.

With Miller-Jenkins in place, it now seems likely that the Vermont Family Court, (rather than the Superior Court whose jurisdiction was at issue in Titchenal) determines custody, visitation and support issues upon the dissolution of a civil union or marriage, as confirmed in Miller-Jenkins.  The reasoning in the Miller-Jenkins opinion might also support the possibility of the Family Court having jurisdiction to hear a de facto parenting case in circumstances where a couple has jointly decided to and in fact has parented a child together even though they did not adopt⁶⁶. This is a developing area of law and you should contact GLAD and Vermont-based practitioners.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offers the security of an adoption decree.

• Co-parenting Agreement: Couples may enter into an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability or death.  While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
• Wills: The legal parent may nominate a guardian of the child upon the parent’s death. ⁶⁷ These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
• Power of Attorney:  This document is signed by the parent and authorizes another person (the attorney-in-fact) to make a wide variety of decisions and arrangements for the child, including matters related to health care, school and finances. Although these authorizations have been generally respected by schools and pediatricians, among others, their validity has not been tested in court.

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

The Vermont Supreme Court has not yet addressed a case like this directly, but as a practical matter, one’s sexual orientation in itself is not used as grounds for denying a person custody or visitation.  Evidence of a parent’s conduct can only be introduced if the conduct affects the parent’s relationship with the child.⁶⁸

The few lower courts that have addressed the issue have required the parent raising another parent’s sexual orientation as an issue to demonstrate that the parent’s sexual orientation has an adverse effect on the child’s best interests.⁶⁹

What are the factors for making custody determinations generally?

Upon divorce or civil union dissolution, a court makes an order concerning parental rights and responsibilities of any minor child of the parties based on the best interests of the child.⁷⁰ If the parties make an agreement about custody and visitation, the court will presume that agreement to be in the best interests of the child.⁷¹ If parents cannot agree, the court determines the way that parental rights and responsibilities will be divided or shared between them.  In considering the best interests of the child, the court examines the following factors⁷²:

• the relationship of the child with each parent and each parent’s ability to provide the child with love, affection and guidance;
• each parent’s ability to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
• each parent’s ability to meet the child’s present and future developmental needs;
• the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
• each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
• the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
• the relationship of the child with any other person who may significantly affect the child;
• the parents’ ability to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
• evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent.⁷³

How is “sexual orientation” used in custody proceedings?

In a divorce or parentage proceeding, a parent might argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons could be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent might argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody.  People can seek to modify court orders for custody when there has been a real, substantial and unanticipated change in circumstances.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew.  Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁷⁴

Can a court keep my kids from visiting when my partner is present?

The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults.  Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.

Domestic Violence

What is domestic violence?

Under the laws of domestic relations, “abuse” includes causing or trying to cause physical harm; causing fear of imminent serious physical harm; or abuse to children, which includes physical injury, neglect, emotional maltreatment or sexual abuse.⁷⁵

Do the domestic violence laws apply to people in same-sex relationships?

In most situations, yes.  These laws apply to abuse between family members, which includes civil union spouses, as well as between “household members,” which includes people who are living or have lived together, but also those who have or had a sexual relationship, or who are dating or have dated.  To determine whether a dating relationship exists or existed, the court looks to whether the relationship is/was of a romantic nature, how long it has been/was going on, how often the parties interact/ed, and, if the parties have broken up, how long ago the relationship ended. ⁷⁶

How do I get a court order protecting me from an abusive partner?

You can file a complaint seeking relief from abuse with the district, superior or family court in the county in which you live, or, if you have just fled your home, in either your new or old county. There is no fee. ⁷⁷ 

If you are in immediate danger from harm, you can file an application for a temporary order.⁷⁸  All of the courts are required to have procedures for people to file these applications after regular court hours, or on weekends and holidays.⁷⁹ Temporary orders are generally issued upon request, based on the existence of a relationship between victim and offender that is covered by the law and a credible allegation of abuse or threats of abuse.  The order can include:

• an order restraining the defendant from abusing you and from contacting you in person, by phone or by mail,
• prohibiting the defendant from coming within a fixed distance of you, your residence, or other designated locations where you are likely to spend time, and
• assigning child custody and requiring child support.

The order, a copy of which must be given to the abuser, will state a time within ten days of its being issued for the defendant to contest it.  At the hearing, if the victim proves the abuse, the court will keep the order in effect and make other orders it deems necessary to keep the victim safe.⁸⁰  Once an order is issued, it is filed with the Department of Public Safety’s abuse database.  Police and sheriff’s departments, as well as state police district offices are also required to maintain procedures to make personnel aware of the existence and contents of abuse prevention orders.⁸¹ 

The order will stay in effect for a fixed period of time, at the end of which the court may extend it for as long as it deems necessary to protect the victim.  The court does not have to find that abuse took place during the time covered by the order to extend it. ⁸² 

You don’t need a lawyer to get the temporary order, but it may be helpful to have one for later hearings if you think the abuser will contest the order.  The court administrators may be able to connect you with agencies that help victims seek relief and gain access to the courts. ⁸³

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed.  Failure to show up might make the court think you are unreliable if you need legal help in the future.

Violation of an abuse order is a criminal offense and can result in the immediate arrest of the abuser, as well as imprisonment of up to six months and a fine of up to $1000.⁸⁴  It is worth noting that restraining orders do not restrict the abuse victim’s activities or contacts.

A victim may participate in an address confidentiality program, through which the Secretary of State gives the victim another address to use in order to keep the actual address confidential from the public.⁸⁵ 

There are other laws that prohibit stalking, harassing and trespassing that may also apply to your situation, but are beyond the scope of this document.  For more information, you may wish to consult the Vermont Center for Crime Victim Services at 1-800-750-1213 or http://www.ccvs.state.vt.us/.

If I go to court, will I “out” myself for all purposes?

Not necessarily.  The courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship that they do not want revealed.  A relief-from-abuse order is a public record, however. 

Where can I go to get help?

In addition to the local police and district attorney, you can contact the Vermont Network Against Domestic Violence and Sexual Assault at vtnetwork@vtnetwork.org or 1-800-228-7395.  They can provide you with information and assistance and connect you to resources in your area.

Does domestic violence play a role in custody decisions?

Yes.  Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child. ⁸⁶

Footnotes

⁴² See An Act Relating to Civil Marriage at:  http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf .
⁴³ 18 V.S.A. § 5131 (a) (1).
⁴⁴ 18 V.S.A. § 5131 (b).
⁴⁵ 18 V.S.A. § 5131 (c).
⁴⁶ It is not clear what respect Vermont gives to comprehensive domestic partnerships from California, Oregon, Washington and Nevada.  If you have a registered domestic partnership from one of these states, you should seek advice from a Vermont attorney or seek a ruling from the Vermont Department of Health about whether your rerlationship will be recognized as equivalent to a Vermont civil union.
⁴⁷ 15 V.S.A. §§ 1301, 1303. 
⁴⁸ 15 V.S.A. § 1304. 
⁴⁹ 15 V.S.A. § 1305.
⁵⁰ 14 V.S.A. §§ 3501-3516.
⁵¹ 14 V.S.A. § 3072 (consideration of ward’s preference in appointing guardian). 
⁵² 14 V.S.A. §§ 9700-9720.
⁵³ 18 V.S.A. § 9702. 
⁵⁴ 18 V.S.A. § 9704.
⁵⁵ 18 V.S.A. § 5239.
⁵⁶ 14 V.S.A. § 314.
⁵⁷ 15 V.S.A. § 1205. 
⁵⁸ For additional information regarding Domestic Partnership Benefits, please see the Human Rights Campaign website’s Workplace Project at http://www.hrc.org/issues/workplace/benefits/4814.htm; see also HRC website at http://www.hrc.org/issues/marriage/domestic_partners.asp for general information about domestic partners.
⁵⁹ See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996). 
⁶⁰ 21 V.S.A. § 495 (f). 
⁶¹ 15A V.S.A. § 1-102
⁶²In re B.L.V.B., 160 Vt. 368 (1993).
⁶³ 15A V.S.A. § 1-102.
⁶⁴ Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, para. 45-46 (the non-birth parent has standing as a step-parent); para. 47 (as a step-parent by virtue of the civil union); para. 48-56 (based on the circumstances of undertaking to be a family together).
⁶⁵ 693 A.2d 682 (Vt. 1997).
⁶⁶ 15 V.S.A. § 1206; Miller-Jenkins, 912 A.2d at para. 55-56
⁶⁷ 14 V.S.A. § 2656. 
⁶⁸ 15 V.S.A. § 667. 
⁶⁹ Medeiros v. Medeiros, 8 Fam. L. Rep. 2372 (Apr. 8, 1992) (mother’s lesbian relationship did not present substantial risk of harm to children); Barker v. Rawson, No. F108-5-91 AnDmp (Addison Fam. Ct. Nov. 27, 1991) (grandmother’s lesbianism in no way affects her visitation rights). 
⁷⁰ 15 V.S.A. § 665. 
⁷¹ 15 V.S.A. § 666. 
⁷² 15 V.S.A. § 665. 
⁷³ 15 V.S.A. § 665.
⁷⁴ 15 V.S.A. § 668.
⁷⁵ See 15 V.S.A. § 1101.
⁷⁶ 15 V.S.A. § 1101.
⁷⁷ 15 V.S.A. § 1103.
⁷⁸ 15 V.S.A. § 1104. 
⁷⁹ 15 V.S.A. § 1106.
⁸⁰ 15 V.S.A. § 1104. 
⁸¹ 15 V.S.A. § 1107.
⁸² 15 V.S.A. § 1103.
⁸³ 15 V.S.A. § 1106.
⁸⁴ 15 V.S.A. § 1108. 
⁸⁵ 15 V.S.A. § 1152. 
⁸⁶ 15 V.S.A. § 665.

Questions & Answers (Accurate as of December 10, 2009)

Sexual Orientation Discrimination

Does Vermont have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes.  Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992.¹

Does it also protect people perceived of as gay, lesbian, and bisexual?

Maybe. Although the anti-discrimination laws themselves do not distinguish between actual and perceived sexual orientation, the questionnaire used by the Civil Rights Unit of the Attorney General’s Office allows people to complain of discrimination on account of both sexual orientation and perceived sexual orientation.  However, the Human Rights Commission does not make this distinction in its employment complaint form.There is no case law on this. (Note: the school harassment law, which is discussed in the Students’ Rights Section, does explicitly provide protection for students and their family members who are or are perceived of as gay, lesbian or bisexual.)

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Probably not, but there is no case law on this.  The one exception is the school harassment law mentioned in the question above which extends to family members associated with the student.

Transgender/Gender Identity Discrimination

Do protections exist for transgender people under state anti-discrimination laws?

Yes.  In May, 2007, Vermont became the third state in New England (and one of 12 states and the District of Columbia nationally) to explicitly prohibit discrimination on the basis of gender identity. The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.”²Thus, in the case of gender identity discrimination, there is explicit protection both for transgender people and for people who are perceived as transgender.

Prohibited Areas of Discrimination

Vermont law prohibits discrimination in employment, places of public accommodation, housing, credit, and a variety of services, each of which is addressed below.

Employment

To whom does the non-discrimination law apply and what does it forbid?

The non-discrimination law prohibits any employer, employment agency or labor organization from discriminating against any individual because of his or her sexual orientation or gender identity.³  This applies to both private and government employers and covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers.⁴  Note that these protections cannot be used to compel an employer to provide health insurance or other employee benefits to an employee’s domestic partner.⁵

In addition, employment agencies may not participate in discrimination by refusing to classify or refer their customers for employment or otherwise discriminate because of sexual orientation or gender identity.  Unions may not deny union membership or otherwise discriminate against its members because of sexual orientation or gender identity.⁶ 

The law also forbids these entities from advertising in such a way as to restrict employment or membership because of sexual orientation or gender identity.⁷

Does the law apply to every employer in Vermont?

No. As broad as the law is, there are exceptions to its application.

• An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-gay or has a traditional gender identity.  There are no general occupational exemptions from the reach of the non-discrimination law, however, and this defense is very rarely successful.
• Religious institutions and their charitable and educational associations are sometimes exempt from the law.⁸  Where an employer is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may take employment actions that it “calculate[s will]  ... promote the religious principles for which it is established or maintained.”  This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against persons because of their sexual orientation or actual or perceived gender identity.

Does the Vermont law prohibit sexual harassment?

Yes.  Sexual harassment is specifically prohibited under the law. Vermont law defines sexual harassment as a form of sex discrimination that means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• submission to that conduct is made either explicitly or implicitly a term or condition of employment;
• submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual;
• the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.⁹
 

Because sexual harassment is a form of sex discrimination, a claim of harassment can be pursued in the same ways as other discrimination claims, as discussed below.

In addition to prohibiting sexual harassment, Vermont law requires all employers, employment agencies and labor organizations to ensure a workplace free of sexual harassment by adopting a policy against sexual harassment, posting a notice outlining that policy, and providing all employees an individual written copy of the policy.¹⁰

It is as unlawful to sexually harass a gay, lesbian, bisexual or transgender person as it is to harass anyone else.  Some harassment is specifically anti-gay and may be more fairly characterized as harassment on the basis of sexual orientation.  Other harassment is because of the person’s actual or perceived gender identity and may be characterized as harassment on the basis of gender identity.  Still other harassment is sexual in nature and more appropriately categorized as sexual harassment.  All these types of harassment can happen to the same person, and all are forbidden under Vermont state law.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.¹¹

Does Vermont law prohibit discrimination on the basis of a civil union status?

Yes. Vermonters who enter into a civil union with a same-sex partner will be treated as married for the purposes of the laws of Vermont. Accordingly, the protection from discrimination on the basis of marital status is extended to couples who enter into a civil union.¹²

Public Accommodations

What is a “place of public accommodation”?

A place of public accommodation means “any school, restaurant, store, establishment or other facility at which services, facilities, goods, privileges, advantages, benefits, or accommodations are offered to the general public.”¹³

What does the law say about discrimination in places of public accommodation?

Such places may not, on account of a person’s sexual orientation, gender identity, marital status, or other protected characteristic, “refuse, withhold from or deny to that person any of the accommodations, advantages, facilities and privileges of the place of public accommodation.”¹⁴

The protections based on marital status mean that a place of public accommodation may not discriminate against parties to a civil union.¹⁵

There is an exception to this rule, stating that this law does not prohibit an establishment that provides lodging to transient guests (i.e. hotels, inns) with five or fewer rooms from restricting its accommodations based on sex or marital status.¹⁶

Public schools in Vermont are considered public accommodations and so students are protected from discrimination on the basis of sexual orientation and gender identity.  See the section on Students’ Rights for further information about the rights and protections for public school students.

Housing

What is prohibited by the housing anti-discrimination law in Vermont?

The housing laws prohibit discrimination based on sexual orientation or gender identity in transactions relating to residential housing—including buying, selling, renting, negotiating, listing, advertising, inspecting, or financing—and in the terms, conditions, privileges, services or facilities connected to those transactions.¹⁷

This law also prohibits discrimination based on marital status, and therefore applies to discrimination against parties to a civil union.¹⁸

In addition, it is unlawful to coerce, intimidate, or threaten a person regarding a housing matter, or interfere with a person’s ability to exercise their rights to be free from discrimination in housing.¹⁹

Are any landlords exempt from the housing anti-discrimination law?

There are two main exemptions from the law.  One allows owners to disregard the law when the owner or a member of the owner’s immediate family resides in the building and the building has three units or less.²⁰ 

The other exemption applies to religious institutions and the nonprofit institutes they operate, supervise or control.  When such religious entities own or operate a dwelling for non-commercial purposes, they may give preference to persons of the same religion.  These kinds of religious restrictions or preferences must be stated in the written policies and procedures of the religious entity.²¹

Credit and Insurance

Financial institutions and insurance companies are places of public accommodation and so the protections listed above under Public Accommodations apply.  The following questions and answers provide information about further specific protections that exist in credit and insurance.

How does Vermont anti-discrimination law protect people with regard to credit and loans?

Vermont law prohibits a financial institution from discriminating against an applicant for credit services on the basis of sexual orientation, gender identity, marital status or other protected characteristics.  This applies to applicants for credit cards, personal loans, mortgages and commercial loans.²²

In addition, Vermont law provides specific non-discrimination provisions with regard to the issuance of bank credit cards,²³ retail installment contractsor retail charge agreements (i.e. in-store credit cards),²⁴ motor vehicle retail installment contracts,²⁵ and agricultural finance leases.²⁶

Example: GLAD brought and won a claim against a credit union that refused to allow a feminine appearing man to apply for a loan until he came back looking more masculine.  A federal court ruled that this constituted a claim of sex discrimination in violation of the credit non-discrimination laws.²⁷

How does Vermont anti-discrimination law protect people concerning insurance purchases?

Vermont law prohibits discrimination against an applicant for insurance or an insured person based on sexual orientation, gender identity, marital status, or sex with regard to underwriting standards and practices, eligibility requirements, and rates.²⁸

Insurers are also prohibited from directly or indirectly investigating or inquiring as to an applicant’s, insured’s or beneficiary’s sexual orientation or gender identity in an application for insurance coverage or in connection with an application, as well as from using information about sex, marital status, medical history, occupation, living arrangements, beneficiaries, zip codes or other territorial designations to determine sexual orientation.²⁹ 

Insurers may not use sexual orientation, gender identity, or beneficiary designation in the underwriting process or in determining eligibility for insurance.³⁰ 

In addition, state-regulated insurers may not discriminate between married couples and parties to a civil union with regard to offering insurance benefits to a couple, a spouse, a party to a civil union, or their families.³¹

Pursuing a Complaint

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency.  Sometimes you have more than one option about where to file. This chart provides a quick guide, and the details are discussed afterwards.

Types of Claims:

• Employment claims against the state

• Public Accommodations

• Housing

Where to File:

•    Human Rights Commission

•    Superior Court

Type of Claim:

•    Employment claims against parties other than the State of Vermont

Where to File:

•    Civil Rights Unit of Attorney General’s Office

•    Superior Court

Types of Claims:

• Credit Services

• Retail Installment Contracts

• Insurance

Where to File:

•    Department of Banking, Insurance, Securities & Health Care Administration

•    Human Rights Commission

•    Superior Court

Type of Claim:

•      Agricultural Finance Leases

Where to File:

•      Consumer Protection Division of Attorney General’s Office

•      Superior Court

 

State Employment, Public Accommodations, or Housing

• If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:  The Vermont Human Rights Commission, 14-16 Baldwin Street, Montpelier, VT 05633-6301, (800) 416-2010, (802) 828-2480, human.rights@state.vt.us.  A complaint may be filed under oath in person, by telephone, in writing or by e-mail stating the facts concerning the alleged discrimination.
• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

 

General Employment

• If you believe you have been discriminated against by a party other than the state (for example, a private business or a town), you may file a complaint under oath with the: Civil Rights Unit, Office of the Attorney General (CRU), 109 State Street, Montpelier, VT 05609-1001, (888) 745-9195, civilrights@atg.state.vt.us.  Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can print this Employment Discrimination Complaint Form.
• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

 

Credit or Services

• If you believe you have been discriminated against in the provision of credit services, retail installment contracts, or insurance, you may file a complaint in writing with the Department of Banking, Insurance, Securities and Health Care Administration, 89 Main Street, Drawer 20, Montpelier, VT 05620-3101.  You can contact the Banking Division for complaints involving credit services or installment contracts at (802) 828-3307, and the Insurance Division for complaints involving insurance at (802) 828-3301.  In addition, you may want to contact the Vermont Human Rights Commission since these entities are also places of public accommodation.  You may also file your case directly in Superior Court of the county where the alleged discrimination occurred.
• If you believe you have been discriminated against with regard to an agricultural finance lease, you may file a complaint with the Consumer Protection Division of the Office of the Attorney General, Consumer Assistance Program, 206 Morrill Hall-UVM, Burlington, VT 05405, (802) 656-3183, (800) 649-2424 (Toll-Free in Vermont Only), consumer@uvm.edu, or with the Superior Court of the county where the alleged discrimination occurred.

Do I need a lawyer?

Not necessarily.  The processes at all of these agencies are designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court.  Not only are there many legal rules governing these processes, but employers and other defendants are likely to have legal representation. 

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts.³²  The CRU also has a policy of requiring complaints to be filed within one year.  If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time.  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the Commission or the CRU?

If you file with the Human Rights Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim.  If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed—the respondent—who has to respond to the allegations within ten days.  The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against.  In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses.  The five Commissioners appointed by the governor then decide whether there are reasonable grounds to credit your allegations.³³ 

If you file a complaint with the CRU, the process is very similar, and is described in detail on the CRU’s website: http://www.atg.state.vt.us.  Look under the “How do I…” section.

The Human Rights Commission and the CRU both allow the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process.  If these efforts fail, at the end of the investigation the Human Rights Commission or CRU issue findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency.  If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations.³⁴

Similarly, if the CRU finds a violation of law, the respondent will be asked to engage in settlement negotiations to try to resolve the case.  If these negotiations fail, the CRU may file a complaint against the respondent in Superior Court.

If reasonable grounds or a violation of law are not found, the case is over within the Commission³⁵ or the CRU. 

At this point, or at any point in the process at the Commission or CRU, you may decide to file a case in court.  It is crucial to always keep in mind the deadlines for filing such a case, as discussed above.  If you do so while an investigation is pending at either of these agencies, the agency may close the investigation, unless it determines that there is good cause to continue it and make a final determination.³⁶  If the agency continues its investigation and finds reasonable grounds, the agency may try to intervene in a case you have filed in order to pursue the state’s interest in enforcing the antidiscrimination laws.

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

 

Employment

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, back pay, front pay, restitution of wages or other benefits, damages, including those for emotional distress, civil penalties (where applicable), and punitive damages.³⁷ 

Public Accommodations and Housing

In public accommodations and housing cases, remedies may include injunctive relief, compensatory damages (expenses actually incurred because of unlawful action), and punitive damages. ³⁸  In addition, criminal penalties of fines up to $1000 may be imposed.³⁹ 

In all of these cases, the court may grant attorney’s fees, costs and other appropriate relief that is consistent with the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person non-discriminatory access to and use of public accommodation).

Are there other ways to pursue a complaint for discrimination?

Possibly, depending on the facts of your particular situation.  This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

1. Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Get and read a copy of your contract and contact a union representative about filing a complaint.  Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes federal anti-discrimination law applies as well as state law.  For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation or gender identity.  Thus, a gay person with HIV who is fired from a job can file with the Commission or CRU (for sexual orientation and disability discrimination) as well as the federal Equal Employment Opportunity Commission (EEOC) (for disability discrimination only).  You do not have to file separately at the EEOC because filing a complaint with the Human Rights Commission or CRU initiate the process under federal law as well.  The Human Rights Commission or CRU investigate federal claims under the parallel state laws and then makes a recommendation to the EEOC at the end of the investigation.  Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if the person initially institutes his or her claim with the Human Rights Commission or CRU then the time limit is extended to the earlier of 300 days or 30 days after the Human Rights Commission or CRU terminate the case.⁴⁰  For more information, see the EEOC website available at http://www.eeoc.gov/
.
3. State or Federal Court: After or instead of filing with the Commission, CRU or EEOC, you may decide to file the case in court.  You may file in state court at any point within the time limitations, as discussed above.  In order to file in federal court, however, you must remove your case from the EEOC, and there are rules about when and how you must do this that the EEOC can explain. In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies, such as when a person is fired in violation of a contract, fired without the progressive discipline promised in an employee handbook, or fired for doing something the employer doesn’t like but that the law requires.  Also, if a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate against someone for filing a discrimination claim, and you could file an additional complaint against the employer or landlord for retaliation.  “Retaliation” protections cover those who participate in proceedings, or otherwise oppose unlawful conduct.  If the employer or landlord takes action against an employee or tenant because of that conduct, then the employee or tenant can state a claim of retaliation.⁴¹

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD Legal InfoLine at 800-455-GLAD (4523) any weekday between 1:30 and 4:30 p.m. to talk about options. 

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences.  Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim.  This is an individual choice, which should be made after gathering the information and advice to make an informed decision. 

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case.  It is always helpful if you bring to the attorney an outline of the problems you experienced on the job, organized by date and with an explanation of who the various players are (and how to get in touch with them).  Make it as factual as possible, focusing on specific actions, events and exchanges that illustrate the discrimination.  Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.  If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes.  The state anti-discrimination laws for employment forbid taking an action against someone because of sexual orientation and gender identity as well as race, color, religion, national origin, sex, ancestry, place of birth, age, disability, HIV-related blood testing, family leave, and workers’ compensation.  In public accommodations, the employment criteria are expanded to include marital status, but do not include age, ancestry and place of birth.  In housing, the employment criteria are expanded to include intending to occupy a dwelling with one or more minor children and receipt of public assistance, but do not include ancestry and place of birth.See also the exceptions discussed above.

Footnotes

¹Public Act 135, An Act Relating to Discrimination on the Basis of Sexual Orientation. The specific laws at issue are addressed in this publication. Vermont laws are available at http://www.leg.state.vt.us/statutes/statutes2.htm.
²Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007). See also, 1 V.S.A §144. http://www.leg.state.vt.us/database/status/summary.cfm?Bill=S%2E0051&Session=2008.
³21 V.S.A. § 495 (a)(1). 
⁴21 V.S.A. § 495 (a)(3).
⁵21 V.S.A. § 495 (f). 
⁶21 V.S.A. § 495 (a)(4).
⁷21 V.S.A. § 495 (a)(2).
⁸21 V.S.A. § 495 (e).
⁹21 V.S.A. § 495d (13).
¹⁰21 V.S.A. § 495h.
¹¹Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998) (man can sue for sexual harassment by other men under federal sexual harassment laws).
¹²15 V.S.A. § 1204 (e) (7)
¹³9 V.S.A. § 4501.
¹⁴9 V.S.A. § 4502 (a).
¹⁵15 V.S.A. § 1204 (e)(7) (prohibitions against discrimination based on marital status apply equally to parties to a civil union).  See also discussion of civil unions below.
¹⁶9 V.S.A. § 4502 (d).
¹⁷9 V.S.A. § 4503 (a).
¹⁸15 V.S.A. § 1204 (e)(7).
¹⁹9 V.S.A. § 4503 (a)(5).
²⁰9 V.S.A. § 4504 (2).
²¹9 V.S.A. § 4504 (5).
²²8 V.S.A. § 10403.
²³8 V.S.A. § 14303.
²⁴9 V.S.A. § 2410.
²⁵9 V.S.A. § 2362.
²⁶9 V.S.A. § 2488.
²⁷Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
²⁸8 V.S.A. § 4724 (7)(B). 
²⁹8 V.S.A. § 4724 (7)(C)(i). 
³⁰8 V.S.A. § 4724 (7)(C)(ii).
³¹ 8 V.S.A. § 4724(7)(E).
³²Vt. Code R. 80 250 001, Rule 1. 
³³9 V.S.A. § 4554 (a) – (c). 
³⁴9 V.S.A. § 4554 (e).
³⁵9 V.S.A. § 4554 (d).
³⁶Vt. Code R. 80 250 001, Rule 23.
³⁷21 V.S.A. § 495b.
³⁸9 V.S.A. § 4506. 
³⁹9 V.S.A. § 4507.
⁴⁰United States Code 42 sec. 2000e—5(e)(1).
⁴¹9 V.S.A. § 4503 (a)(5) (retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495 (a)(5) (retaliation prohibited in employment).  See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998) (upholding federal retaliation claim of gay man).

Questions & Answers (Accurate as of December 8, 2010)

Harassment and Discrimination at School

Are there any laws protecting gay, lesbian, bisexual and transgender students in Rhode Island?

Yes. Although there are no statewide laws that explicitly address discrimination or harassment based on sexual orientation or gender identity and expression in schools, several provisions provide students with protections against violence, bullying, and hazing.

First, state law says that students, staff members and teachers all have the right to attend or work at a safe school, whether elementary, secondary or post-secondary. ⁹⁴ These provisions empower schools to suspend or expel disruptive students.

Second, all school districts are required to establish policies prohibiting harassment, intimidation and bullying, and addressing prevention of and education about those prohibited behaviors. “Harassment, intimidation and bullying” is defined as:

an intentional written, verbal or physical act or threat of a physical act that, under the totality of circumstances:

1. A reasonable person should know will have the effect of: physically harming a student, damaging a student’s property, placing a student in reasonable fear of harm to his or her person, or placing a student in reasonable fear of damage to his or her property; or
2. Is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for a student.⁹⁵

The Rhode Island Department of Education’s guidance and model policies on bullying, teen dating violence and sexual violence explicitly acknowledge the role that sexual orientation, sex, disability, appearance, and clothing may play in bullying, and make clear the applicability of provisions relating to dating and sexual violence to students regardless of sexual orientation.⁹⁶

Are there other sources of protection for LGBT students in Rhode Island?

Yes. A Board of Regents Policy adopted in 1997 provides in part as follows:

... Certain students, because of their actual or perceived sexual orientation, have been subject to discrimination through abuse, harassment, or exclusion from full participation in educational activities. . . . The Board also recognizes that all students, without exception, have the right to come to school and feel safe.

Therefore, it is the Policy of the Board of Regents that no student shall be excluded from, discriminated against, or harassed in any educational program, activity or facility in a public school on account of sexual orientation or perception of same. The policy shall apply to admissions, guidance, recreational and extra-curricular activities as well as all public educational programs and activities.

Each local school district is urged to review programs, services and activities to assure that such offerings are conducted in a manner that is free of inadvertent or intentional bias. Each local school district is also urged to prohibit harassment based on sexual orientation through the development and enforcement of appropriate student and staff behavior and disciplinary policies…

The Board of Regents policy is available from GLAD or from the Department of Education, Chief Legal Counsel (401) 222-4600 x 2507.

What kinds of conduct does the policy cover?

Technically, the policy covers exclusion from a public school or discrimination in taking advantage of school programs. A school may not be so bold as to say, “Don’t come here,” or “You can’t take track,” but if they fail to redress pervasive harassment against you at school or in a particular class or activity, they may have said so in effect. It does not provide any mechanism for court or administrative enforcement of the policy.

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

In some cases, other laws may help you to combat harassment. Under federal law, public schools which receive federal funds may not discriminate on the basis of sex. Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX. Complaints can be made to your school Title IX coordinator, as well as to the federal Department of Education, Office of Civil Rights, in Boston.

A student’s constitutional rights under both state and federal constitutions may be violated by some kinds of discrimination and harassment as well.

In addition, under state law, every post-secondary school is to establish a written policy concerning sexual harassment. ⁹⁷ Also, post-secondary schools that have received internal complaints of harassment based on sexual orientation or gender identity and expression are required to disclose to the complainant in a timely manner how the complaint was addressed and what actions, if any, were taken to resolve the matter. ⁹⁸ Neither of these laws provides a mechanism for court enforcement.

As well, state law prohibits hazing, subjecting both the perpetrators of hazing and school officials who knowingly permit hazing to criminal liability. Hazing is defined as “any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person.” ⁹⁹

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing. Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

If all of these steps fail, you may also wish to consider legal action against the school district. Contact GLAD for attorney referrals.

Other Rights of Public School Students

In addition to the right to attend school in safety and free from discrimination and harassment based on your sexual orientation or gender identity or expression:

• LGBTQ youth must have equal access to and be allowed to participate on equal terms in all school programs, including extracurricular activities.
• Schools must respect the gender identity of transgender students, including using appropriate names and pronouns, and allowing transgender students to wear clothing consistent with their gender identity.
• LGBTQ youth have the right to be open about their sexual orientation and gender identity and expression.
• Students have the right to form extracurricular groups, such as Gay-Straight Alliances, on the same terms and with the same privileges and resources as all other extracurricular groups.
• LGBTQ students have the right to express themselves on issues relating to sexual orientation or gender identity and expression.
• Students have the right to learn about LGBT issues and have access to information and resources about LGBT issues and people, regardless of objecting school officials or parents.

For additional information see GLAD’s publication, Rights of LGBTQ Youth in Rhode Island.

Gay/Straight Alliances

Do students have the right to form Gay/Straight Alliances in their schools even if the principal or community opposes it?

Students have several legal tools available if they wish to form a Gay/Straight Alliance or club in their public school. A federal law known as the “Equal Access Act” provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. According to both this law and general First Amendment principles, school administrators must respond consistently to all requests for the formation and funding of extracurricular clubs, even if they do not agree personally with the content or have concerns about the community’s reaction to its formation. A school cannot, on those bases, condition a club’s formation on the students’ willingness to change the club’s name, restrict the club’s access to school facilities that all clubs may access (i.e., meeting space, bulletin board or website space, yearbook entries, ability to announce activities), or establish different requirements for funding or staffing. GLAD successfully intervened on behalf of students seeking to form a GSA at South Kingston High School on this very basis.

Resources

In addition to the resources listed above, you may wish to contact:

• Youth Pride, Inc. at (401) 421-5626 or http://www.youthprideri.org
• Youth Talkline at (800) 96YOUTH
• Parents & Friends of Lesbians and Gays (PFLAG)
• Greater Providence Chapter: (401) 751-7571, http://www.pflagprovidence.org
• South/Central Rhode Island Chapter: (401) 219-0265, http://www.pflagscri.org
• Rhode Island Department of Education at (401) 222-4600
• GLSEN (Gay, Lesbian & Straight Education Network) to find out more information about local Rhode Island resources: (212) 727-0135 or glsen@glsen.org

Footnotes

⁹⁶ R.I. Gen. Laws, §§ 16-2-17, 16-81-1.
⁹⁷ R.I. Gen. Laws § 16-21-26.
⁹⁸ See Guidance on Developing Required Policies Against Bullying; Guide to Preventing Bullying, Teen Dating Violence, and Sexual Violence.
⁹⁹ R.I. Gen. Laws, §§ 16-76-1, 16-76-2.
¹⁰⁰ R.I. Gen. Laws, § 16-76.1-1.
¹⁰¹ R.I. Gen. Laws, §§ 11-21-1, 11-21-2.

Questions & Answers (Accurate as of December 8, 2010)

Hate Crimes & Violence

Does Rhode Island have a hate crimes law?

Yes, Rhode Island law establishes additional penalties for crimes committed because of hatred or animus toward the victim’s actual or perceived disability, religion, color, race, national origin or ancestry, sexual orientation or gender.⁷⁸

In order to track hate crimes, the State has also set up a reporting system so that incidents alleged are centrally recorded.⁷⁹ All police departments within the state are required to have training on identifying, responding to and reporting hate crimes,⁸⁰ and must report monthly the occurrence of such crimes to the state police, who must maintain a permanent record of the offenses, categorized by community of occurrence, type of offense, and target.⁸¹

How does the law define what is a hate crime?

In Rhode Island, a hate crime is “any crime motivated by bigotry and bias, including, but not limited to threatened, attempted, or completed acts that appear after investigation to have been motivated by racial, religious, ethnic, sexual orientation, gender or disability prejudice.”⁸²

Where can I call if I think I’ve been a victim of a hate crime?

Begin by contacting the local police. Police officers do not actually charge people with hate crimes, but will need to provide the prosecutor with evidence that the crime was motivated by bias, so be sure to explain all of the factors that make you think this was a hate crime. You may also contact the criminal division of the Attorney General’s office at (401) 274-4400.

For support and advocacy, contact: GLBT Victim Assistance, (401) 222-2620 or Day One, Sexual Assault and Trauma Resource of Rhode Island, (401) 421-4100 or (800) 494-8100.

What other options do I have if I think I have been a victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, you can contact the Office of the Civil Rights Advocate of the Attorney General’s Office at (401) 274-4400. The Civil Rights Advocate is authorized to receive complaints, to conduct investigations, education and training, and to bring civil actions for injunctions or other equitable relief to address physical threats, trespassing, property destruction, or harassment that interfere “with the exercise or enjoyment by any other person of rights secured by the United States Constitution or the laws of the United States or of rights secured by the Constitution of Rhode Island or laws of the state.”⁸³ In addition, a fine of up to $5,000 may be imposed.

An injunction under this provision does not prevent you, depending on the circumstances, from seeking monetary damages for harms you experienced from the crime committed against you.

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act⁸⁴ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does Rhode Island have a sodomy law?

Rhode Island repealed its sodomy law in 1998. All of the criminal laws dealing with forcible sex, sex with minors, or public sexual activity apply equally regardless of the sex of the parties involved.

Does Rhode Island have any other criminal laws which are applied to gay people?

No. All laws apply equally to gay and non-gay people.

Most people arrested for sexual activity are arrested for activity occurring out of doors. The disorderly conduct law is a misdemeanor and forbids (a) intentional, knowing or reckless (b) exposure of the genitals to the view of others (c) under circumstances where the person’s conduct is likely to cause affront, distress or alarm to other persons.⁸⁵

Note that the offense has several elements. First, the exposure must be intentional, knowing or reckless in the mind of the perpetrator. Second, it must occur in circumstances where another person would likely be alarmed or distressed. Thus, the law should not be applied to consensual sexual activity.

This law has been applied to people having sexual encounters in “public.” Bear in mind that sexual activity involving exposure of the genitals should not be illegal simply because it takes place outdoors, in parked cars, or on public lands. Instead, a great deal depends on the time of day, the level of seclusion (e.g., behind remote bushes or beyond fences) and the overall circumstances.

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex — whether the sex is between people of the same sex or of a different sex. But socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs. No one should be arrested or hassled for hand-holding, cruising, talking, flirting, foot-tapping, or non-sexual touching.

As a practical matter, regardless of one’s rights, having sex outdoors is risky business. For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas — sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with the disorderly conduct law and have the report of his or her arrest printed in the local newspaper.

Does Rhode Island have a “sex offender registry” type of law?

Yes. Every state now has such a law, although the terms differ from state to state. In Rhode Island, the law does not specify as registrable offenses any statutes of particular concern to gay people, such as the disorderly conduct law.

What types of crimes are deemed to be “sex offenses”?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve convictions for violent sexual offenses or offenses involving children. For a full list of sex offenses, see R.I. Gen. Laws, §§ 11-37.1-2, 11-37.1-3.

How can I find out what charges I have been convicted of?

You can contact the Department of the Attorney General, Attn.:  Bureau of Criminal Identification, 150 S. Main St., Providence, RI 02903, or call (401) 421-5268. You can send a signed and notarized release for information along with a copy of your identification, self-addressed stamped envelope, and a check or money order for $5. You may also obtain a BCI printout by visiting the BCI at the Dep’t of the Attorney General and possessing proper identification and $5 check or money order.

What obligations are imposed on “sex offenders”?

Most sex offenders will have to register annually with the local law enforcement agency and provide personal data, work information, and other identification. ⁸⁶ All offenders required to register must do so for ten years following their release from confinement or placement on parole, supervised release or probation and must update their information on a quarterly basis for the first two years. Those determined to be sexually violent predators or recidivists, and those who have been convicted of certain aggravated offenses on the other hand, must register and provide updated information on a quarterly basis for life.⁸⁷

Information in the registry can be freely shared with law enforcement agencies, but is generally not made available to the public.⁸⁸ When dealing with an offender who is determined to have a moderate or high risk for re-offense, the community must be notified affirmatively and identifying information about the offender will be made available on the websites of the state police and court system, although there is a legal procedure whereby the offender can seek to block release of the information.⁸⁹

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.⁹⁰

Police Harassment

I am often told by police to “move along” from public areas. Is that legal?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are not engaged in any unlawful activity. Public places belong to everyone, and are likely also places of public accommodation to which anti-discrimination rules apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.⁹¹

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgender — whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason — should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other person.

Police may, of course, approach a person, and make inquiries. If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.⁹²

Police sometimes detain a person whom they believe has committed or is about to commit a crime. If the person is not charged with a crime, he or she must be released after two hours.⁹³

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers. Many departments have their own Internal Affairs Divisions which receive and investigate civilian complaints against police officers.

Complaints concerning the State Police in Rhode Island should be made to the Rhode Island State Police Office of Professional Standards, which you can contact at in writing at 311 Danielson Pike, North Scituate, RI 02857, or by phone at (401) 444-1004. Citizen complaint forms are also available on the State Police website. Complaints should include as much information as possible about the incident, including your name and contact information; the name, rank and badge number (if known) of the officer; the location, date, time and details of the incident; and the names and contact information of any witnesses. Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit — because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also attempt to seek help from the Attorney General’s Office, Criminal Division at (401) 274-4400.

Footnotes

⁸⁰ R.I. Gen. Laws § 12-19-38 (a).
⁸¹ R.I. Gen. Laws § 42-28-46 (b).
⁸² R.I. Gen. Laws § 42-28.2-8.1.
⁸³ R.I. Gen. Laws § 42-28-46 (b).
⁸⁴ R.I. Gen. Laws, § 42-28-46 (a)(2).
⁸⁵ R.I. Gen. Laws, §§ 42-9.3-1; 42-9.3-2.
⁸⁶See H.R. 2647 at http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111X7TYvf:e1999565:
⁸⁷ R.I. Gen. Laws, § 11-45-1 (a)(8).
⁸⁸ R.I. Gen. Laws, § 11-37-1.3 (a).
⁸⁹ R.I. Gen. Laws, §§ 11-37.1-4.
⁹⁰ R.I. Gen. Laws, § 11-37.1-11.
⁹¹ R.I. Gen. Laws, §§ 11-37.1-12, -13.
⁹² R.I. Gen. Laws, § 11-37-6.
⁹³ Kent v. Dulles, 357 U.S. 116, 126 (1958).
⁹⁴ State v. Abdullah, 730 A.2d 1074 (R.I. 1997); State v. Bennett, 430 A.2d 424 (R.I. 1981); Terry v. Ohio, 392 U.S. 1, 16 (1968).  An arrest can only occur upon “probable cause” that a crime has been committed.  R.I. Const., Art. I, § 6.
⁹⁵ See R.I. Gen. Laws, § 12-7-1.

Questions & Answers (Accurate as of December 8, 2010)

Marriage & Civil Unions

Can same-sex couples marry in Rhode Island?

No. Bills to end the exclusion of same-sex couples from marriage in Rhode Island have been introduced in the General Assembly for the last several years. GLAD has been working closely with Marriage Equality Rhode Island on these bills and other protections.

Some religious faiths, including some in Rhode Island, perform marriage ceremonies for same-sex couples within the rules of their faith, but these marriages are not in and of themselves recognized by any state if they are performed without a marriage license.

Can Rhode Island same-sex couples marry anywhere?

Yes. Rhode Island same-sex couples can marry in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia.  All of these locations have no residency requirement. GLAD has publications about how to get married in the New England states that permit same-sex couples to marry at www.glad.org/rights/publications/c/marriage. For information about getting married in Iowa, see this information put out by Lambda Legal:  http://data.lambdalegal.org/publications/downloads/fs_iowa-marriage-faq.pdf.  Also contact Lambda Legal for information about getting married in the Districit of Columbia.

In addition, Canada does not have a residency requirement for marriage and permits same-sex couples from anywhere to marry, see Canadian Marriage FAQ.

The Netherlands, Belgium, Spain, South Africa, Norway, Sweden, Portugal, Iceland, Argentina and Mexico City also allow same-sex couples to marry, but some of these places have requirements that make it difficult for non-citizens to marry.

Because of the 1996 federal Defense of Marriage Act (DOMA), the marriages of same-sex couples are not respected by the federal government, and so same-sex couples are not allowed access to the 1,138 federal laws that deal with marriage.

On March 3, 2009, GLAD filed a lawsuit, Gill et al v. OPM et al, in the Federal Districit Court of Massachusetts to challenge this discrimination.  On July 8, 2010, that court ruled that DOMA was unconstitutional, and on October 12, 2010 the United States Department of Justice appealed this decision to the United States Court of Appeals for the First Circuit.  It will still be many months before there is a decision from the 1st Circuit.  In the meantime, there is a stay in place, and so DOMA continues to discriminate against married same-sex couples. 

On November 9, 2010, GLAD filed its second lawsuit against DOMA, Pedersen v. OPM, in the Federal District Court of Connecticut.  It will be many months before there is a decision in this case, and whatever that decision is, it will most likely be appealed to the United States Court of Appeals for the Second Circuit.

Should GLAD succeed in these lawsuits, or should Congress repeal DOMA Section 3, some or all of the federal laws for which marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected. 

Should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce. In a recent 3-2 decision by the Rhode Island Supreme Court, the Court ruled that the Family Court does not have the jurisdiction to hear the divorce case of a same-sex Rhode Island couple who was legally married in Massachusetts. While this decision is limited to an interpretation of the Rhode Island divorce jurisdiction statute and does not broadly disrespect the marriages of same-sex couples, as was stated in the dissenting opinion, this ruling “places the parties, and all those similarly situated, in an untenable position. They are denied access to the Family Court and thus are left in a virtual legal limbo ...”

If my partner and I marry, will our marriage be respected in Rhode Island?

Rhode Island has a longstanding rule of recognizing marriages validly performed in other jurisdictions. In keeping with this enduring marriage recognition rule, Governor Chafee has issued an Executive Order directing all state departments, agencies, and offices to recognize the lawful marriages of same-sex couples as valid for any purpose arising in the execution of their duties and to review their operations and take all actions necessary to extend respect to these marriages to the fullest extent permitted by law. This Order is consistent with the opinion issued by the Attorney General in 2007 stating that recognizing the valid marriages of same-sex couples furthers Rhode Island public policy. ⁴⁴

Our publication, Rhode Island: Your Government Repects Your Marriage offers some examples of the many protections, obligations, and responsibilities that are likely to come with state agency recognition of the marriages of same-sex couples, as well as information about outstanding tax issues. As state agencies conduct the review required by the Executive Order, we will have more information about the exact protections and obligations this recognition entails.

Are there other ways that Rhode Island same-sex couples can obtain legal recognition of their relationship?

Adult same-sex couples can enter into civil unions in New Jersey and can register as domestic partners in California, Oregon, Nevada and Washington State. Either of these institutions will give the couple a legal status equivalent to a civilly married couple under the law of that state.

What protection will my partner and I gain if we get a civil union or comprehensive state domestic partnership?

We hope civil unions and comprehensive state domestic partnerships will provide many protections, but other states are just beginning to decide how to treat these relationships. Civil unions or comprehensive domestic partnerships are intended to be parallel to civil marriage in all respects under state law. So we think they should be treated like marriages for all state law purposes, but it will take time for that state of affairs to evolve in Rhode Island.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  This recognition may be given by a state or municipal governmental entity or by private businesses and organizations.

In the workplace context, employers may set criteria for domestic partnership as a way for employees to obtain certain fringe benefits for their partners and families which were previously limited to married spouses.  The State of Rhode Island, some Rhode Island cities and towns and many private employers in Rhode Island offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan. 

In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.”  See GLAD’s publications on Domestic Partnership for further information. 

GOVERNMENTAL DOMESTIC PARTNERSHIP RECOGNITION IN RHODE ISLAND

Although Rhode Island does not have a statewide domestic partnership registry like some other states, the Rhode Island legislature has enacted several laws that provide certain benefits to same-sex couples.

In order to qualify, both partners must certify by affidavit that (1) both partners are at least 18 years old and mentally competent to contract, (2) that neither partner is married to anyone, (3) that the partners are not related by blood to a degree that would prohibit marriage in the State of Rhode Island, (4) that the partners live together and have lived together for at least one year, (5) that the partners are financially interdependent as evidenced by at least one of the following: (a) a domestic partnership agreement or relationship contract; (b) a joint mortgage or joint ownership of a primary residence; (c) two of (i) joint ownership of a motor vehicle; (ii) a joint checking account; (iii) joint credit account; (iv) joint lease and/or the domestic partner has been designated a beneficiary for the employee’s will, retirement contract or life insurance.

What domestic partner benefits does Rhode Island offer to state employees?

In the summer of 2001, the Rhode Island legislature made domestic partner benefits available to state employees with respect to health insurance. It did so by changing the definition of “dependent” in state insurance laws. In 2006, Rhode Island extended these benefits to include family and medical leave to care for an ill partner ⁴⁵ and COBRA health benefits for a state employee’s domestic partner, ⁴⁶ and in 2007, the legislature extended pension benefits managed through the Employee Retirement System of Rhode Island, to surviving domestic partners with whom the employee had lived for at least a year and were “financially interdependent.” ⁴⁷

To qualify, a same-sex couple must certify by affidavit to the benefits director of the division of personnel that the couple meets the requirements listed above.  Misrepresentations of information in the affidavit will result in an obligation to repay any benefits received and a fine up to $1000.  Employees are further required to inform the benefits director at their place of employment if and when their relationship ends.

Are other benefits available to domestic partners of public employees?

A one-time benefit is available to the domestic partners of police officers, firefighters, corrections officers, or other emergency workers killed in the line of duty.  Surviving partners have to certify by affidavit to the Board of Police Officer’s and Firefighter’s Relief that they were in a relationship meeting the criteria set forth above.

Some Rhode Island cities and towns offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan. 

What other protections does state law provide to domestic partners?

In January 2010 the Rhode Island legislature passed a law⁴⁸  that gives a domestic partner control over the remains and the funeral and burial arrangements of his/her partner provided: (1) the partner meets the definition of domestic partner defined above, and (2) the deceased has not designated another person as his/her “funeral planning agent” as described below in the section “Legal Protections for Same-Sex Couples—Funeral Planning Documents.”⁴⁹  The law was championed by a gay man, Mark Goldberg, who had a five-week battle to claim the body of his partner of 17 years.  Despite near unanimous passage, it took a legislative override of the Governor’s veto to finally enact the law.

Although it is an important step forward to have this protection for domestic partners, it does require that you prove that your relationship meets certain criteria at a time of tragedy.  The better way to achieve this protection is to name your partner as your “funeral planning agent,” as discussed below.  That agent takes precedence over everyone—spouse, domestic partner, and blood relatives. 

DOMESTIC PARTNERSHIP RECOGNITION BY PRIVATE COMPANIES AND ORGANIZATIONS

What kinds of domestic partner benefits may private employers and organizations provide?

Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.  Private organizations, e.g. a gym, country club, etc., can extend family membership or other family benefits to domestic partners.

DIFFERENCES IN BENEFITS PROVIDED TO DOMESTIC PARTNERS VERSUS DIFFERENT-SEX SPOUSES

Are there any tax consequences associated with receiving domestic partnership benefits?

Yes. Even when employers provide domestic partner benefits, in most instances federal laws require different tax treatment of the benefits for domestic partners as compared to different-sex spouses. An employee must pay a federal income tax on the “fair market value” that the employer is paying for his or her domestic partner’s health insurance benefits unless the domestic partner qualifies as a tax dependent of the employee for health insurance purposes. (An employee who has a same-sex spouse must also pay this federal tax, but not an employee with a different-sex spouse). In most states, employees must also pay a state income tax on these benefits, but Rhode Island exempts employees from state income tax on health benefits extended to a domestic partner or same-sex spouse.⁵⁰

What other differences exist for domestic partners versus different-sex spouses?

For pensions, a domestic partner has no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a different-sex spouse would have that right. In addition, a domestic partner has no right comparable to that of a different-sex spouse to sign off on their partner’s designation of another person for survivor benefits.

Legal Protections for Same-Sex Couples

What steps can a couple take to safeguard their legal relationship in Rhode Island?

1. Relationship Agreement or Contract: Cohabitation agreements regarding property and finances are a good way for couples to sort out their affairs in writing before a separation. As long as the contract is not about sexual services, it has a good chance of being upheld as valid as long as it complies with the requisites for a valid contract. ⁵¹ Bear in mind that as in any state, specific provisions concerning children may or may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements.)
2. Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled. ⁵² If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.
3. Durable Power of Attorney for Health Care: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care agent if he or she wishes another person to make those decisions instead of the family member. Under R.I. Gen. Laws, § 23-4.10-2, a person may appoint a health care agent to make decisions — whether for a limited amount of time or indefinitely. The attorney-in-fact may then make decisions for you — either immediately or upon your becoming incompetent to make decisions. Even after you give another person a health care power of attorney, you may make decisions for yourself if that is what you wish and as long as you are competent to do so. The power of attorney can specify the authority of the agent to make decisions on your behalf, and also state what kinds of treatments you do not desire, including treatments which might keep you alive. You can also specify your wishes regarding organ and tissue gifts after death. The power of attorney must be signed by two witnesses, at least one of whom is not related to the principal, and neither of whom is the agent of a health care provider or their employee. The power of attorney can be revoked at any time by creating a new power of attorney or by a clear expression of revocation. People often give a copy to their doctors and sometimes to family members.
4. Will:  Without a will, a deceased unmarried person’s property passes to:  (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state.⁵³  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child in a will.⁵⁴
5. Funeral Planning Documents:  Rhode Island permits a person to name another as his or her “funeral planning agent” with sole responsibility and authority to make any and all arrangements and decisions about funeral services, and burial or disposition of remains, including cremation.⁵⁵  The document must be signed and notarized by the individual.⁵⁶  To prevent any disputes with family members, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members.  Even absent these documents, a surviving same-sex partner who can prove that their relationship satisfied the state criteria for being “domestic partners” (read the “Domestic Partnership” section above) can also assume control of the funeral and burial process.  However, this requires proving certain facts about your relationship at a time of tragedy and does not control if someone else has been appointed as the “funeral planning agent.”  The best way to ensure that your partner is able to make these decisions is to name your partner your “funeral planning agent.”
6. Living Will:  Within a durable power of attorney for health care, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.⁵⁷

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although some forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a durable power of attorney for health care with specific instructions about the types of treatments to which you do and don’t consent, and the exact scope of the agent’s authority.

If a couple separates, what is the legal status of a Relationship/Partnership Agreement/Contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it.  The Rhode Island Supreme Court has recognized that, under some circumstances, contract theories and equitable principles may apply to address the property and financial matters of a separating same-sex couple even without a written agreement.⁵⁸  Written agreements offer vastly greater security, however, providing the court with a roadmap as to the intentions of the parties.

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planning agent, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Adoption

Can a single gay individual adopt a child in Rhode Island?

Yes.  Rhode Island law provides that any person may petition to adopt another person who is under age 18.⁵⁹

Can same-sex partners together adopt a child in Rhode Island?

Though the question of joint adoption by an unmarried couple is not addressed expressly by the Rhode Island statutes on adoption or by any authoritative ruling by the State Supreme Court, joint and second parent adoptions have routinely been granted at the Family Court level.  Feel free to contact GLAD for more information, or if you encounter any difficulties.

What is the advantage of doing a second parent or joint adoption?

A joint adoption means that the child now has two legal parents for all purposes.  The law will reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization. 

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits.  Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

The rights of a co-parent were addressed by the Rhode Island Supreme Court in a ruling handed down in September, 2000.  When such a person can show she is a de facto parent, then she is entitled to a court hearing to address what custody, visitation and support arrangement is in the best interests of the child.⁶⁰  To be qualified as a de facto parent, the legal parent must have consented to and fostered the relationship between the child and the de facto parent; the child and de facto parent must have lived together; the de facto parent must have performed parental functions for the child to a significant degree; and the child and de facto parent must have developed a parent-child bond. 

One other helpful point about the Rubano case is that it clarifies that a parenting agreement can be used to bar a parent from claiming that his or her former partner has no grounds for making a custody or visitation claim.  In some cases, parties to the agreement may also seek to enforce the agreements in court.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged.  See GLAD’s publication:Protecting Families:  Standards for Child Custody in Same-Sex Relationships.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offer the security of a second parent adoption.

1. Co-Parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death.  While these agreements will likely not be enforced by courts per se, they very well could be by other entities in Rhode Island, and they are also important and potentially influential indicators of what the couple believed was in the best interests of the child.
2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death.⁶¹  These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
3. Power of Attorney and Temporary Guardianship: This document is signed by the parent and authorizes another person (the attorney-in-fact and temporary guardian) to make a wide variety of decisions and arrangements for the child, including matters related to school, medical care and finances.
4. Co-guardianship: While there is no express provision in the law allowing for appointment of co-guardians, and although the practice varies to some degree across the State, some probate courts allow a parent to name the other non-legal parent as a co-guardian so that the other parent may secure medical attention for the child and act as a parent.⁶²  This status is not permanent, and may be terminated by a court.⁶³

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

In Rhode Island, the question should turn on whether there is evidence of direct harm to the best interests of the child, although there has been no reported case on the subject.  As a general matter, “(i)n any proceeding or suit in any court, neither parent shall have any natural priority or preference in any matter relating to their minor children.”⁶⁴  Specific acts of parental misconduct are relevant to determinations of child custody.⁶⁵

What are the factors for making custody determinations generally?

In Rhode Island, the leading case regarding the best interests of the child is Pettinato v. Pettinato.⁶⁶  The Rhode Island legislature has not statutorily defined the factors that comprise a child’s best interests, but in the Pettinato case, the Rhode Island Supreme Court listed eight factors that should be considered by courts to determine the best interests of the child:

• The wishes of the child’s parent or parents regarding the child’s custody;
• The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference;
• The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest;
• The child’s adjustment to the child’s home, school, and community;
• The mental and physical health of all individuals involved;
• The stability of the child’s home environment;
• The moral fitness of the child’s parents; and
• The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.⁶⁷
 

In addition, Rhode Island Law requires courts to “consider evidence of past or present domestic violence, if proven, as a factor not in the best interest of the child.”⁶⁸

As to visitation, the law provides that whichever parent does not have primary physical custody of the child shall be granted a reasonable right of visitation, unless there is a showing of cause why the right should not be granted.⁶⁹

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent may argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.⁷⁰  Contact GLAD for further resources.

Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?

It can make a difference with respect to future modification of court orders for custody.  People can seek to modify court orders for custody when there has been a substantial change in circumstances.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew.  Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁷¹

If circumstances have changed so that a modification complaint is appropriate, then the standard once again is what arrangement is in the best interests of the child.

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.⁷²

Domestic Violence

What is domestic violence?

Under the laws for the Family Court and the District Court, “domestic abuse” means the occurrence of one or more of the following acts between people who are family members, parents, or persons who are or have been in a substantive dating relationship within the past year, or against the minor child of one of the parties:

• attempting to cause or causing physical harm;
• placing another in fear of imminent serious physical harm;
• causing another to engage involuntarily in sexual relations by force, threat of force, or duress; and
 
• stalking or cyberstalking.⁷³

Note that the District Court rules also prohibit abuse between cohabitants and apply to substantive dating relationships regardless of the age of the parties, and are thus broader than the Family Court provisions.

Do the domestic violence laws apply to people in same-sex relationships?

Not explicitly, but some same-sex relationships are covered under the definition of “substantive dating relationship.”  This includes relationships which are “significant and personal/intimate” based on the length of time of the relationship, the type of relationship, and the frequency of interaction between the parties.⁷⁴  Other relationships may be covered if partners or former partners share legal parentage of a child.⁷⁵  As well, in the District Court, partners who live together or have lived together within the past three years may be considered “cohabitants.”⁷⁶

How do I get a court order protecting me from an abusive partner?

The process is intended to be simple.  You may go to the District Court or Family Court where you live, or if you have just fled your home, in the town where you used to live.  You will need to fill out a complaint alleging “abuse” as defined above.  The complaint is under oath, so everything you say must be true.  Try to put in as much detail as possible demonstrating why you feel threatened. 

If you are in danger of harm, the Court can grant you a temporary protective order for not more than 21 days, which can include an order restraining your abuser from hurting you, barring him or her from entering your home, assigning child custody and requiring payment of child support.  If the courts are closed (nights, holidays, weekends), you can contact the local or state police, who will be able to contact a judge on call to handle these matters.

The defendant/abuser must be served with (given a copy of) the court order and notified of his or her right to contest the order in court. Once the order is issued, it is filed with the state Bureau of Criminal Identification and is effective state-wide.  Violation of a court order of which an abuser has notice is a criminal offense.⁷⁷

The Court will also assign a date for another hearing at which the temporary order will either be extended or dismissed.  At that time, both parties often have attorneys.  You should bring with you any witnesses who can substantiate the abuse, as well as copies of threatening letters, medical records, or any other documents which can show how you have been harmed and why you are afraid.  Expect to be asked questions by both the judge and the attorney(s) for the abuser/defendant.  You have the same right to ask questions.

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed.  If you don’t show up, it is possible that the court will think you are unreliable and may hold that against you should you need legal help in the future.

There are other laws which prohibit stalking, harassing and trespassing which may apply to you, but are beyond the scope of this document.

If I go to court, will I out myself for all purposes?

Not necessarily.  Some courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship which they do not want revealed.  If you proceed in the District Court rather than the Family Court, you do not have to claim that you are in a “substantive dating relationship,” but only that you are cohabitants to get a protective order, and thus you may be able to conceal your sexual orientation if you choose.⁷⁸

Where can I go to get help?

In addition to the local police and district attorney, you can call the Rhode Island Coalition Against Domestic Violence at (401) 467-9940, www.ricadv.org, or Day One, the Sexual Assault and Trauma Resource Center, at (401) 421-4100 or (800) 494-8100, www.dayoneri.org

Does domestic violence play a role in custody decisions?

Yes.  Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child.⁷⁹

Footnotes

⁴⁴ See Opinion of Attorney General Patrick Lynch to R.I. Board of Governors for Higher Education, 2/20/07, available at http://ri.glad.org/News_Room/RIAttorneyGeneral_Statement.pdf (citing Ex Parte Chace, 58 A.978 (R.I. 1904)).
⁴⁵ R.I. Gen. Laws, § 28-48-1 (5).
⁴⁶ R.I. Gen. Laws, § 36-12-2.4.
⁴⁷ See R. I. Pub. Laws. 2007, ch. 510.
⁴⁸ House Bill 2009-H 5294 which amends R.I. Gen. Laws, §§ 5-33.2-24 & 23-4-10.
⁴⁹ R.I. Gen. Laws, § 5-33.2-24(2)(i).
⁵⁰ R.I. Gen. Laws, § 44-30-12(c)(6).
⁵¹ See Doe v. Burkland, 808 A.2d 1090, 1094 (R.I. 2002) (allowing contract claim by former same-sex partner; “The mere existence of a sexual relationship between two parties does not impair the right to contract with each other for consideration independent of the relationship.”).
⁵² R.I. Gen. Laws, § 18-16-1 et seq.
⁵³ R.I. Gen. Laws, § 33-1-1 et seq.
⁵⁴ R.I. Gen. Laws, § 33-5-1 et seq.
⁵⁵ R.I. Gen. Laws, § 5-33.3-3.
⁵⁶ R.I. Gen. Laws, § 5-33.3-4.
⁵⁷ R.I. Gen. Laws, § 23-4.10-2
⁵⁸ See Doe v. Burkland, 808 A.2d 1090 (R.I. 2002).
⁵⁹ R.I. Gen. Laws, § 15-7-4 (a).
⁶⁰ Rubano v. DiCenzo, 759 A.2d. 959 (2000).
⁶¹ R.I. Gen. Laws, § 33-15.1-7
⁶² R.I. Gen. Laws, § 33-15.1-5.
⁶³ R.I. Gen. Laws, § 33-15-18 (“The court shall remove any…guardian…upon finding that the [guardian] has not fulfilled, or is no longer able to fulfill, the duties of the appointment as set forth by the order itself and/or the limited guardianship and guardianship law.”).
⁶⁴ R.I. Gen. Laws, § 33-15.1-3.
⁶⁵ R.I. Gen. Laws, § 15-5-3.1(b).
⁶⁶ 582 A.2d 909 (R.I. 1990).
⁶⁷ Pettinato 582 A.2d at 913-914.
⁶⁸ R.I. Gen. Laws, § 15-5-16.
⁶⁹ R.I. Gen. Laws, § 15-5-16(d)(1).
⁷⁰ Compare Suddes v. Spinelli, 703 A.2d 605, 607 (R.I. 1997) (visitation rights only denied “in an extreme situation in which the children’s physical, mental or moral health would be endangered”).
⁷¹ See King v. King, 114 R.I. 329, 330, 333 A.2d 135, 137 (1975)(changed circumstances shown when four years passed and boy passed from childhood to adolescence); Kenney v. Hickey, 486 A.2d 1079, 486 A.2d 1079, 1082 (R.I. 1985).
⁷² Compare Seravo v. Seravo, 525 A.2d 922 (R.I. 1987) (father’s visitation rights terminated where he sexually assaulted his child and the child was still traumatized from the abuse).
⁷³ SeeR.I. Gen. Laws, § 15-15-1 (2) (family court); 8-8.1-1(3) (district court).
⁷⁴ R.I. Gen. Laws §§ 15-5-1 (5); 8-8.1-1(3).
⁷⁵ R.I. Gen. Laws § 15-5-1 (3).
⁷⁶ R.I. Gen. Laws § 8-8.1-1 (1).
⁷⁷ See generally, R.I. Gen. Laws, §§ 15-15-1 et seq.; 8-8.1-1 et seq.
⁷⁸ R.I. Gen. Laws, § 8-8.1-1.
⁷⁹ R.I. Gen. Laws, § 15-5-16.

Questions & Answers (Accurate as of December 8, 2010)

Sexual Orientation Discrimination

Does Rhode Island have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes. Rhode Island has enacted a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations.¹

Does it also protect people perceived to be gay, lesbian, and bisexual?

Yes. The anti-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality.” ² Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically. But in some situations, if a person is fired from a job or evicted from his or her home because he or she hangs out with someone who is gay or lesbian, it may be possible to show that the person was fired or evicted because the employer or landlord thought he or she was gay or lesbian as well.

Transgender/Gender Identity Discrimination

Do protections exist for transgender people under state anti-discrimination law?

Yes. In May, 2001, Rhode Island became the second state in the country to explicitly prohibit discrimination on the basis of gender identity or expression, thereby protecting transgender people from discrimination in employment, housing, credit, and public accommodations.³ The law defines gender identity or expression as including a person’s “actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression, whether or not that gender identity is different from that traditionally associated with the person’s sex at birth.”⁴

Employment

What does the law forbid? To whom does the law apply?

The anti-discrimination law applies to employers (government-based or private) who have at least 4 employees (not including the owner, certain family members, or domestic servants).⁵

It forbids employers from refusing to hire a person, or discharging them, or discriminating against them in compensation, in terms, conditions or privileges of employment or in any other matter directly or indirectly related to employment because of sexual orientation or gender identity or expression.⁶ Beyond hiring and firing, this covers most significant job actions, such as failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers. It also prohibits an employer from inquiring about a person’s sexual orientation either during a job interview or after hiring.

The law also applies to employment agencies and labor organizations (e.g. unions), ⁷ as well as state employment-related activities, programs and services.⁸

As broad as the law is, there are several exemptions.

• Employers with fewer than 4 employees are exempt.⁹
• While there are no general occupational exemptions from the reach of the anti-discrimination law, an employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular position is that it has someone in it who is non-gay or non-transgender.¹⁰ While that defense is allowed in the law, it is strictly applied and very rarely successful.
• The employment discrimination statute does not apply “to a religious corporation, association, educational institution, or society with respect to the employment of individuals of its religion to perform work connected with the carrying on of its activities.” ¹¹ This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discrimination.

It is important to note that unlawful employment practices in Rhode Island also include practices which have a “disparate impact” based on sexual orientation or gender identity (or other characteristics) when the respondent is unable to show that the practice or group of practices in question is required by “business necessity.” ¹² This can be important to combat discrimination based on policies or practices that are not LGBT-specific but harm gay or transgender people more than others.

Does the Rhode Island law prohibit sexual harassment?

Yes, by case law, sexual harassment is forbidden as sex discrimination.¹³

In addition, employers with at least 50 employees and employment agencies must develop and disseminate to their workers anti-sexual harassment policies in their workplaces.¹⁴ The law also strongly encourages employers to train employees on the scope of the policy.¹⁵

For purposes of the latter law, Rhode Island law defines “sexual harassment” as any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:

• Submission to such conduct or advances or requests is made either explicitly or implicitly a term or condition of an individual’s employment; or
• Submission to such conduct or advances or requests by an individual is used as the basis for employment decisions affecting such individual; or
• Such conduct or advances or requests have the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.¹⁶

Can a gay or transgender person be sexually harassed?

It is as unlawful to sexually harass a gay, lesbian, bisexual or transgender person as it is to harass one who is not. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Similarly, some harassment may be specifically anti-trans and may be pursued more appropriately as discrimination based on gender identity or expression. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.” Each type of harassment can happen to the same person, and all are forbidden.¹⁷

Moreover, that the sex of the harasser and the victim is the same does not defeat a claim of sexual harassment. Same-sex sexual harassment has been held to violate both state and federal anti-discrimination laws.¹⁸

Can I use the state anti-discrimination law to force my employer to provide benefits to my same-sex partner?

Although the anti-discrimination law says that an employer cannot discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, in many, if not most circumstances, that law probably cannot be used to compel an employer to provide benefits to an employee’s same-sex partner.

Under R.I. Gen. Laws, § 28-5-7 (1)(ii), even if an employer provides benefits to some employees, “nothing herein shall require those benefits to be offered to unmarried partners of named employees.” As a result, the anti-discrimination cannot be used to compel an employer to provide domestic partner benefits. Note that nothing in the law forbids an employer from providing domestic partner benefits if it chooses to do so. As discussed below, the state and several municipalities have already equalized some benefits like health insurance.

When an employee has a legal spouse, however, under some circumstances the anti-discrimination law may be a means to ensure equal treatment of same-sex spouses as different-sex spouses. The availability of such a claim depends on the type of benefit sought (i.e., family or medical leave versus health insurance) and on the type and terms of the particular benefits plan. This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.

Public Accommodations

What is a “place of public accommodation”?

Places of public accommodation are places that are open to the public and include, but are not limited to, stores, restaurants, bars, public transportation, garages, hotels, hospitals, clinics, rest rooms, barber shops, salons, amusement parks, gyms, golf courses, swimming pools, theaters, fairs, libraries, public housing projects, and so on.¹⁹

What does the law say about discrimination in places of public accommodation?

Such places may not refuse, withhold from or deny any person any of the accommodations, advantages, facilities or privileges of that public place, nor may they advertise or state that their accommodations are so limited, because of a person’s sexual orientation or gender identity or expression.²⁰

Housing

What is prohibited by the housing anti-discrimination law in Rhode Island?

The housing laws are intended to prohibit discrimination by owners and their agents from refusing to sell, rent, lease, let or otherwise withhold housing accommodations based on sexual orientation, gender identity or expression, marital status, or familial status.²¹ In addition, those who accept applications for loans or financial assistance to acquire, build, repair or maintain housing accommodations — i.e., those involved in financing — may neither inquire about sexual orientation, gender identity or expression, marital status, or familial status, nor discriminate on those bases.²²

Are any landlords exempt from the housing anti-discrimination law?

The main exemption to the law allows owners who live in 3-, 2-, or 1-family units to disregard the law if the owner lives in one of the units.²³ In addition, a religious organization or non-profit institution run by a religious organization can limit its non-commercial sales and rentals to persons of the same religion unless membership in the religion is restricted on account of one of the protected categories, including sexual orientation and gender identity or expression.²⁴

Credit

What protections exist under Rhode Island anti-discrimination law with regard to credit?

Financial organizations such as banks, trust companies, savings banks, loan and investment banks, savings and loan associations, credit unions and any other commercial credit institution may not discriminate in granting or extending credit because of sexual orientation, gender identity or expression, or marital or familial status.²⁵

Pursuing a Complaint

How do I file a complaint of discrimination?

You may file in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY).

The complaint must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the RICHR within one year of the discriminatory act or acts.²⁶ There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state anti-discrimination laws for employment forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex, disability, age, or country of ancestral origin.²⁷

In housing, the criteria are expanded to include marital status, familial status, and whether any member of the household has been a victim of domestic violence.²⁸

In places of public accommodation, the other protected characteristics are race, color, religion, country of ancestral origin, disability, age, sex, but not marital or familial status.²⁹

What happens after a complaint is filed with the RICHR?

The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR sends for “conciliation” or settlement proceedings in which the offender agrees to cease its unlawful practices and the complainant may be given an additional remedy.³⁰

If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her complaint with the RICHR.³¹

After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court.³²

There are a few times when the case can be taken from the RICHR and filed in court. For example:

• Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR. That request should be granted, and the complainant then has 90 days from when he or she receives a “right to sue” letter to file the case in Superior Court.³³
• After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules.³⁴
• In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending.³⁵

If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly.³⁶

What are the legal remedies the RICHR may award for discrimination if an individual wins his or her case there?

In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws.³⁷

In addition, in employment cases, a successful complaint may be entitled to a remedy involving hiring, reinstatement or upgrading of employment, back pay, and admission or restoration to union membership.³⁸ If the adverse job action was taken against the individual for a variety of reasons, and sexual orientation or gender identity or expression was not the sole motivating factor, the RICHR may limit the damages awarded.

In housing cases, the RICHR is also empowered to impose civil fines, with increasing severity depending on whether the offender has committed other discriminatory acts in the past.³⁹

When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others.⁴⁰ The only exception is that punitive damages may not be awarded against the State.

Are there other agencies at which I can file a complaint for discrimination?

You may be able to file complaints at other agencies depending on the facts of your particular situation. This outline concerns only Rhode Island anti-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Obtain and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law. For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation or gender identity or expression. Thus, a gay person with HIV who is fired from a job can file with the RICHR (for sexual orientation and disability discrimination) as well as the Equal Employment Opportunity Commission (for disability discrimination). Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act, but if a person initially institutes his or her complaint with RICHR, then the time limit is extended to the earlier of 300 days or 30 days after RICHR has terminated the case.⁴¹ (People who work for federal agencies are beyond the scope of this publication and should contact GLAD’s Legal InfoLine.)
3. State or Federal Court: After filing with the RICHR or EEOC, or both, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. An individual can request a right to sue letter from RICHR after a complaint has been pending for at least 120 days but not more than 2 years as long as RICHR has not secured a settlement or commenced a hearing on the case; the right to sue letter must be issued within 30 days after receiving the request, and the Superior Court complaint must be filed within 90 days of when the right to sue letter was issued.⁴²

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation. If an employer, employment agency or labor organization discriminates against a person in any manner because he or she has opposed a forbidden practice or has made a charge, testified or assisted in a complaint filed under the anti-discrimination laws, then the employee can state a claim of retaliation.⁴³

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD Legal InfoLine at 800-455-GLAD any weekday between 1:30 and 4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering the information and advice necessary to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them), what happened, who said what, and who else was present. Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

¹ R.I. Pub. L. 1995, ch. 32.
² R.I. Gen. Laws, §§ 28-5-6 (employment); 34-37-3 (housing); 11-24-2.1 (public accommodations).
³ R.I. Pub. L. 2001, ch. 340.
⁴ R.I. Gen. Laws, §§ 28-5-6 (employment); 34-37-3 (housing); 11-24-2.1 (public accommodations).
⁵ R.I. Gen. Laws, § 28-5-6 (6), (7). 
⁶ R.I. Gen. Laws, § 28-5-7 (1).
⁷ R.I. Gen. Laws, § 28-5-7 (2), (3).
⁸ R.I. Gen. Laws, ch. 28-5.1.
⁹ R.I. Gen. Laws, § 28-5-6(7)(i).
¹⁰ R.I. Gen. Laws § 28-5-7 (4) .
¹¹ R.I. Gen. Laws, § 28-5-6(7)(ii).
¹² R.I. Gen. Laws, § 28-5-7.2.
¹³ See, e.g., Iacampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996).
¹⁴ R.I. Gen. Laws, §§ 28-51-1; 28-51-2 (a), (b).
¹⁵ R.I. Gen. Laws, § 28-51-2 (c).
¹⁶ R.I. Gen. Laws, § 28-51-1.
¹⁷ See R.I. Gen. Laws § 28-5-7 (recognizing need for response to complaints of harassment on the basis of sexual orientation and gender identity or expression in addition to that based on sex).
¹⁸ See Mann v. Lima, 290 F. Supp. 2d 190, 194 (D.R.I. 2003);  see also R.I. Gen. Laws, § 28-44-17 (sexual harassment against members of either sex may constitute “good cause” for quitting job under unemployment laws).
¹⁹ R.I. Gen. Laws, § 11-24-3.
²⁰ R.I. Gen. Laws, § 11-24-2.
²¹ R.I. Gen. Laws, § 34-37-4 (a).
²² R.I. Gen. Laws, § 34-37-4 (b).
²³ R.I. Gen. Laws, §§ 34-37-4.4, 34-37-4.5.
²⁴ R.I. Gen. Laws, § 34-37-4.2.
²⁵ R.I. Gen. Laws, § 34-37-4.3.  See R.I. Gen. Laws, Title 19 for a list of additional financial organizations included within the scope of the non-discrimination law.
²⁶ R.I. Gen. Laws, §§ 28-5-17(a); 34-37-5 (b).
²⁷ R.I. Gen. Laws, § 28-5-7 (1)(i).
²⁸ R.I. Gen. Laws, § 34-37-4 (a).
²⁹ R.I. Gen. Laws, § 11-24-2.
³⁰ See generally, R.I. Gen. Laws, §§ 28-5-17, 34-37-5.
³¹ R.I. Gen. Laws, §§28-5-18; 34-37-5.
³² R.I. Gen. Laws, §§ 28-5-28; 34-37-6.
³³ R.I. Gen. Laws, §§ 28-5-24.1(a); 34-37-5(l).
³⁴ See R.I. Gen. Laws, §§ 28-5-24.1(c); 34-37-5(n).
³⁵ R.I. Gen. Laws, § 34-37-5(m).
³⁶ R.I. Gen. Laws, §§ 28-5-28; 34-37-6
³⁷ R.I. Gen. Laws, § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases).
³⁸ R.I. Gen. Laws, §§ 28-5-24 (a)(1).
³⁹ R.I. Gen. Laws, § 34-37-5(h)(2).
⁴⁰ R.I. Gen. Laws, § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing). 
⁴¹ United States Code 42 sec. 2000e-5(e)(1).
⁴² R.I. Gen. Laws, §§ 28-5-24.1; 34-37-5(l).
⁴³ R.I. Gen. Laws, §§ 28-5-7 (5); 34-37-4(m).  See also R.I. Gen. Laws, § 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man).  The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws.  See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Questions & Answers (Accurate as of December 15, 2009)

Harassment and Discrimination at School

Are there any laws protecting gay, lesbian and transgender students in Maine?

Yes. The state anti-discrimination law specifically protects students from discrimination based on sexual orientation, including gender identity and expression, in any academic, extracurricular, athletic, research, occupational training or other program or activity. It also protects students during the admissions process and in obtaining financial aid. The law defines “educational institution” as:

“any public school or educational program, any public post-secondary institution, any private school or educational program approved for tuition purposes if both male and female students are admitted and the governing body of each such school or program. For purposes related to disability-related discrimination, ‘educational institution’ also means any private school or educational program approved for tuition purposes.”¹²⁵

The complainant must file a complaint with the MHRC within 6 months. The MHRC will conduct the same type of investigation as it does in other types of discrimination cases.¹²⁶ See the employment section in this booklet for more information about this process.

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

Under federal law, public schools which receive federal funds may not discriminate on the basis of sex. Sometimes, the harassment of a LGBT student will be sexual harassment forbidden by this federal law, known as Title IX. Complaints can be made to your school Title IX coordinator, as well as to the federal Dept. of Education, Office of Civil Rights, in Boston.¹²⁷ In addition, inaction in the face of pervasive harassment or discrimination can violate a student’s rights under the state and federal constitutions.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing with at least the date and time. Once you meet with the right officials, write yourself notes about what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

At the same time, or after contacting the administration as set out above, you may contact the State Dept. of Education for further information at (207) 624-6747 (ask for the Affirmative Action Officer). If this fails, you may also wish to consider legal action against the town. This is a complicated area of law as well as being emotionally challenging. Contact GLAD for further information and attorney referrals.

Rights of Public School Students

In addition to the right to attend school in safety and free from discrimination and harassment based on your sexual orientation or gender identity or expression:

• LGBTQ youth must have equal access to and be allowed to participate on equal terms in all school programs, including extracurricular activities.
• Schools must respect the gender identity of transgender students, including using appropriate names and pronouns, and allowing transgender students to wear clothing consistent with their gender identity.
• LGBTQ youth have the right to acknowledge their sexual orientation and gender identity and expression.
• Students have the right to form extracurricular groups, such as Gay-Straight Alliances, on the same terms and with the same privileges and resources as all other extracurricular groups.
• LGBTQ students have the right to express themselves on issues relating to sexual orientation or gender identity and expression within constitutional limits.
• Students have the right to learn about LGBT issues and have access to pedagogically and age appropriate information and resources about LGBT issues and people, regardless of objecting school officials or parents.

For additional information and resources see GLAD’s publication, Rights of LGBTQ Youth in Maine.

Gay/Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

Most student-initiated groups should be allowed to form. A federal law known as the Equal Access Act provides that secondary school students in schools that 1)receive federal funding, and 2)have extra-curricular groups, must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. GLAD brought and won a case for students seeking to form a Gay Straight Alliance at West High in Manchester, New Hampshire on this very basis.¹²⁸ PFLAG estimates that over 20 Southern Maine high schools have GSAs.

In addition to GSAs, more than 150 elementary, middle level, and high schools have student civil rights teams that work to increase school safety by reducing bias behaviors and harassment.  These civil rights teams are supported by the Civil Rights Team Project in Maine’s Office of the Attorney General.

For a list of Maine schools with active civil rights teams click here. For more information on civil rights teams and the Civil Rights Team Project, visit: www.maine.gov/ag/civil_rights.

Footnotes

¹²⁵ 5 Me. Rev. Stat. sec. 4553 (2) (A) (definition of “educational institution”).
¹²⁶ 5 Me. Rev. Stat. sec. 4611.
¹²⁷ Office for Civil Rights, Boston Office, U.S. Department of Education, 33 Arch Street, Suite 900, Boston, MA 02110-1491, (617) 289-0111; FAX# (617) 289-0150, http://www.ed.gov/about/offices/list/ocr/docs/howto.html?src=rt .
¹²⁸ Available at: http://www.glad.org/work/cases/west-high-gsa-v-manchester-school-district/.

Questions & Answers (Accurate as of February 1, 2010)

Hate Crimes & Violence

Does Maine have a hate crimes law?

Maine has a hate crimes law that permits consideration of the nature of the crime during the sentencing phase.¹⁰⁷ If the defendant selected a person or his or her property for criminal activity because of, among other things, sexual orientation, then that fact can be taken into account. The law, however, does not include gender identity or expression among the factors to be taken into consideration upon sentencing.

Where can I call if I think I’ve been a victim of a hate crime?

In addition to the local police, you may contact the Attorney General’s Civil Rights Unit at (207) 626-8800, or online at http://www.maine.gov/ag/civil_rights/index.shtml.

What additional protections against hate crimes and harassment exist in Maine law?

1. General Criminal Laws: Hate crimes are prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, and so on. These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for criminal accountability, and the selection of a person (or his or her property) because of sexual orientation can then be considered in the sentencing phase.
2. “Civil Rights Law”: On the civil side, Maine law provides for civil remedies when a person violates another person’s state or federal rights in certain circumstances.¹⁰⁸ This provision, known as the “Maine Civil Rights Act” specifically states that a “person has the right to engage in lawful activities” without being subject to the infliction or threat of physical force or violence or the damage, destruction or trespass of property, motivated by reason of sexual orientation.¹⁰⁹ Contact local law enforcement or the Attorney General’s office if you have been a victim under this law as the State is the primary enforcer of this statute. More specifically, the law allows a person to bring a private action against someone who uses or threatens physical force or violence, damages, destroys or trespasses on property, or threatens to damage, destroy or trespass on property in a manner that intentionally interferes or attempts to interfere with another person’s exercise or enjoyment of their rights under state or federal law.¹¹⁰ If those elements are met, then a person may bring an action for legal and equitable relief. Aside from the possibility of recovering money damages, equitable relief means that the person suing can obtain an order forbidding the attacker from coming near him or her, whether at home, at work, in school, or even from telephoning him or her. Actions must be brought within 6 years, although moving promptly is always an advantage.¹¹¹ In addition to whatever relief a restraining order may provide, it is also important that violation of a restraining order is a criminal offense that can be prosecuted. You should report any violations of a restraining order to local police, and keep careful records of any and all violations. The Attorney General’s Office also has the power to bring civil rights actions on behalf of people who are harassed or threatened.¹¹² The contact information is listed above.
3. Harassment Law: Maine law permits people to petition the District or Superior Court for an order preventing harassment.¹¹³ “Harassment” is defined as “any repeated act of intimidation, harassment, physical force or threat of physical force directed against any person, family, or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by” the Constitution or laws of Maine or the United States. Under this law, a person may seek emergency orders, and later seek temporary orders, and ultimately seek final orders of protection. In addition, with final orders, a successful plaintiff may be awarded damages for direct losses caused by the harassment (e.g., lost earnings, property repair or replacement), reasonable moving expenses and court costs and attorney’s fees.¹¹⁴ Violation of a court restraining order is a criminal offense.¹¹⁵

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act¹¹⁶ was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

• investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
• grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
• grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

• where the offender(s) has committed crimes in more than one state, or
• that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles.  This is the first federal law to explicitly extend legal protections to transgender persons.

Criminal Sex Laws

Does Maine have a sodomy law?

No, Maine long ago repealed its sodomy law. Moreover, in Lawrence v. Texas (2003)¹¹⁷ , the U.S. Supreme Court struck down all sodomy laws, making clear that private, adult sexual conduct cannot be criminalized.

Why do some gay people get arrested?

All people are subject to the criminal laws. Sex in public, or with underage persons, or without consent, or with force, are illegal. Sex for pay—as the customer or the provider—i.e., prostitution, is also illegal.

There is also an “indecent conduct” law that targets sexual activity or exposure which

1. occurs in a public place (including motor vehicles on public ways), or
2. occurs in a private place with the intent that it be seen from another public or private place, or
3. occurs in a private place with the intent that it be seen by others and where the actor knows observation will cause affront or alarm.¹¹⁸

The penalties may be increased under the law if a person has two or more convictions for this offense.

The State has a legitimate law enforcement interest in protecting the general public from open displays of sexual activity—whether the sex is between people of the same sex or of different sexes, but socializing and expressions of same-sex affection are not illegal, regardless of where they occur. No one should be hassled or arrested for foot-tapping, handholding, talking, flirting, or other non-sexual touching.

Sexual activity is not illegal simply because it takes place outdoors, in parked cars, or on public lands. However, as a practical matter, regardless of one’s rights, having sex in a public venue or outdoors is a risky business. Based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring in a public setting, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in parklands and rest areas—sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with indecent conduct.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.¹¹⁹ School teachers and other school employees may be charged with sexual abuse of minors if they have sex with a student who is under age 18.¹²⁰ A person who is at least 19 and has sex with a 14 or 15 year old can be charged with sexual abuse of a minor if the adult is at least 5 years older than the minor.¹²¹

Does Maine have a “sex offender registry” or “Megan’s” law?

Yes. Every state now has such a law, although the terms differ from state to state. Many states, including Maine, initially included as registrable offenses crimes for which gay men have been unfairly targeted. However, this is no longer the case in Maine. For example, violation of the Indecent Conduct law is not considered a registrable offense under Maine law.

How can I find out of what charges I have been convicted?

To find out your criminal record, you can contact the State Bureau of Identification at (207) 624-7270 (voice) or (207) 287-3659 (TDD). You can also request information by mail if you send a check for $8 payable to the Treasurer of State along with a written request, your name, date of birth, and any aliases. The address is State Bureau of Identification, 45 Commerce Drive, Suite #1, Statehouse Station #42, Augusta, ME 04333. The website is http://www.informe.org/PCR/.

Police Harassment

Is it legal for the police to tell me to “move along” from public areas?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct¹²².

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgender—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may of course approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone is not grounds for the person to be arrested.

Brief intrusions upon a person are permitted if an officer can say why he or she is concerned and that concern is reasonable. For example, if an officer is concerned about someone’s safety, or suspects the person may have committed a crime, or suspects the person has committed a traffic infraction, then a stop is reasonable.¹²³

An arrest can only occur upon “probable cause” that a crime has been committed.¹²⁴

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers, and complaints to the Maine State Police may be made to the commanding officer of the alleged harasser. The contact person is Lieutenant Luce, Director of Internal Affairs (207) 624-7290. The State Police have a toll-free number at (800) 452-4664. The complaint should specify the name or badge number of the officer, and state whether the complaint is for actual misconduct, harassment or discrimination.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can provide you with attorney referrals. People can also register serious complaints with the Attorney General’s Office, Investigations Unit at (207) 626-8800.

Footnotes

¹⁰⁷ 17-A Me. Rev. Stat. sec. 1151 (8)(B).
¹⁰⁸ 5 Me. Rev. Stat. sec. 4682. 
¹⁰⁹ 5 Me. Rev. Stat. sec. 4684-A.
¹¹⁰ 5 Me. Rev. Stat. sec. 4681.
¹¹¹ 14 Me. Rev. Stat. sec. 752.
¹¹² 5 Me. Rev. Stat. sec. 4681. 
¹¹³ 5 Me. Rev. Stat. sec. 4652.
¹¹⁴ 5 Me. Rev. Stat. sec. 4655
¹¹⁵ 5 Me. Rev. Stat. sec. 4659.
¹¹⁶ See page 646 of H.R. 2647 at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.pdf.
¹¹⁷ 539 U.S. 558 (2003)
¹¹⁸ 17-A Me. Rev. Stat. sec. 854.
¹¹⁹ 17-A Me. Rev. Stat. sec. 254.
¹²⁰ 17-A Me. Rev. Stat. sec. 254 (1)(C).
¹²¹ 17-A Me. Rev. Stat. sec. 254 (1)(A).
¹²² Kent v. Dulles, 357 U.S. 116, 126 (1958); State v. Aucoin, 278 A.2d 395, 397 (Me. 1971)(striking down former version of Portland’s loitering ordinance).
¹²³ State v. Gulick, 759 A.2d 1085 (Me. 2007), *2; State v. Connors, 734 A.2d 195 (Me. 1999)(investigatory stop justified when officer has articulable suspicion of civil violation or criminal activity and such suspicion is objectively reasonable in the totality of circumstances).
¹²⁴ State v. Boylan, 665 A.2d 1016 (Me. 1995)(probable cause to arrest where officer has reasonably trustworthy information that would warrant an ordinarily prudent and cautious officer to believe the subject did commit or was committing a crime).  See also Terry v. Ohio, 392 U.S. 1, 16 (1968).

Questions & Answers (Accurate as of May 25, 2011)

Marriage, Civil Unions and Domestic Partnerships

Can same-sex couples marry in Maine?

Note: the information below is now out-of-date based on the passage of ballot Question 1 on November 6, 2012, which made marriage between same-sex couples legal in Maine.  The law will go into effect sometime in the next 30-60 days.  Stay tuned for more information. Contact the Legal InfoLine if you have questions now: 800-455-GLAD.

No.  Even though the Maine legislature passed a marriage equality bill, and Maine’s governor signed it into law, a voter referendum repealed the law.  Here is what happened.

On May 6, 2009, former Governor Baldacci signed into law LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom.  The bill had passed the Maine Senate on April 30, 2009 by a vote of 21-14 and the Maine House on May 5, 2009 by a vote of 89-57.  “In the past, I opposed gay marriage while supporting the idea of civil unions,” Baldacci said in a written statement. “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”  GLAD and its partners, EqualityMaine, the Maine Civil Liberties Union, and the Maine Women’s Lobby, worked hard for several years to make the passage of this law a reality. 

However, Maine has a process whereby a law can be held in abeyance if enough signatures are obtained to have a voter referendum on the law.  Immediately after the signing, opponents from the right announced they were organizing a people’s veto campaign.  To help accomplish this goal, they contracted with Schubert Flint Public Affairs group, the California based PR firm that lead the successful Prop 8 ballot initiative that stripped same-sex couples in California of the right to marry. 

Pro-equality advocates organized No on 1/Protect Maine Equality, a unified campaign bringing together the field organization and mobilization skills of EqualityMaine, the legal expertise of GLAD, and the public outreach capacity of the Maine Civil Liberties Union.  To spearhead the anti-referendum campaign, No on 1 hired Jesse Connolly, who led the successful 2005 “Maine Won’t Discriminate” campaign where a significant majority of Mainers voted to keep sexual orientation in the state’s non-discrimination policy. 

On November 3, 2009, the voters of Maine, by a margin of 53% to 47%, repealed LD 1020, and so same-sex couples are not able to marry in Maine. The pro-equality organizations are in the process of developing a plan for bringing marriage equality to Maine.  Check GLAD’s website, http://www.glad.org for u,pdates.

Can Maine same-sex couples currently get married anywhere?

Yes.  Maine same-sex couples can marry in Massachusetts, Connecticut, Iowa, Vermont, and the District of Columbia (beginning sometime in March 2010).  All of these locations have no residency requirement. 

Same-sex couples can also marry in New Hampshire.  There is no residency requirement for marriage in New Hampshire, and yet, a complexity is created by a 1979 New Hampshire law that states:  “No marriage shall be contracted in this state by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this state in violation hereof shall be null and void.”⁵⁰  Maine is one of 14 states that have a law which states that the marriage of any same-sex couple is “void.”⁵¹

Therefore, GLAD recommends that residents of Maine consider marrying in Massachusetts, Connecticut, Vermont, or Iowa where there is no such prohibition.  It is not clear how strictly New Hampshire enforces this law, but even if a New Hampshire town clerk issues you a marriage license, this New Hampshire law could be used at some point to challenge the validity of your marriage when you most need its protections.  If, for some reason – such as location of family – New Hampshire is the desired location for getting married, residents of Maine are strongly advised to consult a New Hampshire attorney before getting married there.

GLAD has publications about how to get married in the New England states that permit same-sex couples to marry at www.glad.org/rights/publications/c/marriage/.  For information about getting married in Iowa, see Lambda Legal’s publication Iowa Marriage FAQ. Also, contact Lambda Legal for information about getting married in the District of Columbia.

In addition, Canada does not have a residency requirement for marriage and permits same-sex couples from anywhere to marry, see Canadian Marriage FAQ.

The Netherlands, Belgium, Spain, South Africa, Norway, Sweden, Argentina, Iceland, and Portugal also allow same-sex couples to marry, but some of these countries have requirements that make it difficult for non-citizens to marry.

Because of the 1996 federal Defense of Marriage Act (DOMA), the marriages of same-sex couples are not respected by the federal government, and so same-sex couples are not allowed access to the 1,138 federal laws that deal with marriage. GLAD has filed two federal lawsuits, Gill et al. v. OPM et al. and Pedersen v. OPM to challenge Section 3 of DOMA (see www.glad.org/doma for detailed information).  Should GLAD succeed in these lawsuits, or should Congress repeal DOMA Section 3, some or all of the federal laws where marriage is relevant will be applicable to married same-sex couples who live in states where their marriage is respected. 

Should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce. 

If we are a legally married same-sex couple, will Maine respect our marriage?

The general rule is that marriages are respected if they were valid where licensed and certified. However, the Maine legislature passed a law in 1997 that is an exception to the general rule.⁵²  As a result, there will be no official state recognition in Maine.

Public and private entities alike may nonetheless apply the general rule of validity to these marriages and accord marital benefits, protections and responsibilities to those couples.

Are there other ways that Maine same-sex couples can obtain legal recognition of their relationship?

Adult same-sex couples can enter into civil unions in New Jersey, Illinois (effective June 1, 2011), and Delaware (effective January 1, 2012) and can register as domestic partners in California, Oregon, Washington State and Nevada.  Either of these institutions will give the couple a legal status equivalent to a civilly married couple under the law of that state, but it is not yet clear what will be the effect of those unions in Maine.

Can same-sex couples obtain any legal recognition of their relationships in Maine?

Yes, although at present that recognition is not as complete as the recognition afforded to civilly married couples.

In 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” ⁵³ This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” ⁵⁴ The specific requirements for registration are set out below.

What protections do I obtain by registering as a domestic partner under the state law?

1. Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).
2. Legal Priority: The law provides that a domestic partner:
   • will be treated like a spouse when seeking to be a guardian of his or her partner in the event of that partner’s incapacity;
   • will have the same priority as legal spouses in seeking a protective order concerning the partner’s estate or the welfare of the partner;
   • is entitled to notice of hearings concerning the appointment of guardians in the event of the partner’s incapacity; and
   • is entitled to notice of the issuance of protective orders in the event of death.
3. Survivorship Rights: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)

Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.

Who can register?

Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,”⁵⁵ and they meet the following specific requirements:

• each partner is a mentally competent adult and not closely related (e.g. close relatives);
• the domestic partners have been living together in the state for at least 12 months before the filing;
• neither domestic partner is married or in a registered domestic partnership with another person; AND
• each domestic partner is the sole domestic partner of the other and expects to remain so.⁵⁶

How do you register in a registered domestic partnership?

All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee of $35. Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records website.

Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence.⁵⁷

How do you end a registered domestic partnership?

A registered domestic partnership is ended by:

• the marriage of either registered partner;
• the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
• the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given.⁵⁸ (Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.)

What exists beyond the Statewide registry?

• State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner.”⁵⁹
• Maine’s Family Medical Leave Law was amended in June 2007⁶⁰ to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services.⁶¹
• In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Worker’s Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances.⁶²
• Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot.⁶³

To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:

1. each partner is a mentally competent adult (not required for requesting an absentee ballot);
2. the domestic partners have been legally living together for at least 12 months;
3. neither domestic partner is legally married to or legally separated from another person;
4. each domestic partner is the sole domestic partner of the other and expects to remain so;
5. the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property.⁶⁴

Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).

Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees’ partners?

Yes. State employees can receive health insurance for their domestic partners.

• The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
• Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.

Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?

Yes. Many lawyers also believe this result is required by the non-discrimination law if the city or town provides benefits to heterosexual couples.

It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (sexual orientation is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends.⁶⁵

Some employers provided these benefits before the non-discrimination law was amended to include sexual orientation. For example, the City of Portland extends domestic partner benefits, including health insurance, to qualified domestic partners of City and School Department employees. In order to qualify for such benefits, an employee must have his or her partnership registered by the City and must provide the City or School Department with two or more forms of proof exhibiting that they are jointly responsible for each other’s common welfare and share financial obligations. Examples of such proof include the joint mortgage or ownership of property; the designation as a beneficiary in the employee’s will, retirement contract or life insurance; a notarized partnership agreement or relationship contract; and any two of the following: a joint checking account, a joint credit account, a joint lease, or the joint ownership of a motor vehicle.⁶⁶

Note that municipal domestic partner plans have withstood a court challenge. In 2004, GLAD, together with the Portland City Attorney and cooperating counsel, successfully represented the City of Portland in a challenge to the domestic partnership registry system and benefits offered there. The claim was that the domestic partnership law was superceded by the state anti-gay, anti-marriage law. See Pulsifer v. City of Portland, and GLAD’s press release Maine Trial Court Upholds Portland’s Domestic Partnership Ordinance.

In addition, the cities of Bar Harbor and Camden and the County of Cumberland provide domestic partner health insurance benefits to their employees. Portland also maintains a domestic partner registry which allows people to register their relationships and receive family memberships and rights in city-run facilities.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. While it’s hard to identify all employers providing benefits in Maine, they include L.L. Bean, Care Development of Maine, Fairchild Semiconductor, Idexx Laboratories, Inc., Energy East Corp., The Gale Group, Hannaford, Maine Coast Memorial Hospital, Maine Medical Center, TD Banknorth Group, the University of Maine System, the University of New England, and Bowdoin, Bates, and Colby Colleges.⁶⁷

Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of his or her partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. ⁶⁸ Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.⁶⁹

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on his or her partner’s designation of another person for survivor benefits.

Legal Protections for Same-Sex Couples

What steps can a couple take to safeguard their legal relationship in Maine?

1. Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.⁷⁰
2. Durable Power of Attorney:⁷¹ Any competent person may appoint another person as his or her “attorney-in-fact” for financial and/or other matters in the event he or she becomes incapacitated or disabled.⁷² If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A person may also nominate his or her guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.”⁷³ The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.
3. Durable Power of Attorney for Health Care:⁷⁴  Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than his or her legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence.⁷⁵ It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while he or she is still competent. Otherwise it must be revoked in court.⁷⁶ While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person he or she wants to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” ⁷⁷ can make health care decisions for an incapacitated person. This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her incapacitated partner’s health care decisions absent documentation. Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments.⁷⁸ The Attorney General’s Office has a model advance directive posted on their website, http://www.themha.org/issues/advdirectivesform.pdf . While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members.⁷⁹ Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse.” ⁸⁰ This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her partner’s end of life decision.
4. Will: Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
5. Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.⁸¹ If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place. ⁸² It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.

If a couple separates, what is the legal status of a Relationship/Partnership Agreement/Contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.

Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.⁸³

PLEASE NOTE:  If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Adoption

Can a single gay individual adopt a child in Maine?

Yes.⁸⁴

Can same-sex partners together adopt a child in Maine?

Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple.⁸⁵ In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD’s publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption.

What is the advantage of doing a second parent or joint adoption?

An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent’s work record.

Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offer the security of a second parent adoption or marriage. Among these are:

1. Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be enforceable as a contract, they are important indicators of what the couple’s intent was when they formed their family and what they believed was in the best interests of the child, and thus may be influential on a court’s assessment of who the parents are and their respective parental rights and responsibilities.
2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These “testamentary appointments” are given strong and respectful consideration by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.⁸⁶
3. Co-guardianship: This process allows a biological or adoptive parent to name his or her partner as a co-guardian so that the partner may secure medical attention and health insurance for the child and in most other ways act with the legal authority of a parent. The Probate Court may appoint the legal parent and his or her partner as co-guardians if the legal parent consents to the appointment and the court finds the appointment to be in the best interests of the child.⁸⁷ This status is not permanent, and may be terminated by the court upon a legal petition if the guardianship is no longer in the best interests of the child. Additionally, co-guardianship status ceases to be recognized once the child reaches the age of eighteen.⁸⁸
4. Power of Attorney Delegating Parent’s Rights: This document is signed by the parent and delegates to another adult all powers regarding that parent’s child, except the power to consent to the child’s adoption. It must be notarized, and it must be renewed every six months.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a “de facto parent,” then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation.⁸⁹ Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:

1. the de facto parent must have developed a parent-child relationship with the child;
2. the legal parent must have consented to and encouraged the development of this relationship;
3. the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent.⁹⁰

The Law Court added that a de facto parent “must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life.”⁹¹ This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together. For additional legal information about other states, see GLAD’s Selected Bibliography of Recent Co-Parent Cases.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families: Standards for Child Custody in Same-Sex Relationships.

Custody and Visitation

I am in the middle of a divorce and I am now involved with a same-sex partner. Can my “ex” use this against me to deny me parental rights and responsibilities for my children?

The Maine Law Court has not yet addressed a case like this, but the majority rule in the country is “No.” Most states, and two Maine Superior Court cases, use the “nexus test” under which a parent’s sexual orientation is not relevant unless there is actual evidence of harm to the child. Speculation of harm or teasing is not enough.

In Whitehead v. Black⁹², a case decided by the Superior Court, an ex-husband from Georgia petitioned for a change of custody when he learned that his ex-wife, who had since moved to Maine, was a lesbian. The court ruled that the children had always lived with the mother, that she was otherwise fit, and she “was aware that her homosexual lifestyle could have an impact on her children and was intelligently seeking to minimize, if not totally eliminate, that impact.” ⁹³ That reasoning from a court is good for its time.

Finally, many reputable attorneys have refused even to make the argument that a parent’s sexual orientation — standing alone — should be a factor in child welfare decisions. For more legal information, see GLAD’s Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse.

What are the factors for making parental rights and responsibilities determinations generally?

Courts consider the parents as equals, whether married or unmarried, and make orders based on the best interests of the children.

The permissible factors for consideration are set out by law. The factors focus on child welfare and none automatically advantages a non-gay parent over a gay parent.

The law provides: “In making decisions regarding the child’s residence and parent-child contact, the court shall consider as primary the safety and well-being of the child. In applying this standard, the court shall consider the following factors:

1. The age of the child;
2. The relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare;
3. The preference of the child, if old enough to express a meaningful preference;
4. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
5. The stability of any proposed living arrangements for the child;
6. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
7. The child’s adjustment to the child’s present home, school and community;
8. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
9. The capacity of each parent to cooperate or to learn to cooperate in childcare;
10. Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
11. The effect on the child if one parent has sole authority over the child’s upbringing;
12. The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects: 1. The child emotionally; and 2. The safety of the child;
13. The existence of any history of child abuse by a parent;
14. All other factors having a reasonable bearing on the physical and psychological well-being of the child; and
15. A parent’s willful misuse of the protection from abuse process…”⁹⁴

Are there different kinds of parental rights and responsibilities?

Yes, and the courts may allocate some particular rights to one parent and others to another parent.⁹⁵ The rights that may be divided include primary physical residence, visitation, support, education, medical and dental care, religious upbringing or any other matter. Sometimes a parent will be solely responsible for the child in all aspects; this is called “sole parental rights and responsibilities.” Other times, the parents will share all of these issues; this is called “shared parental rights and responsibilities.”

Is it considered harm to the child if he or she is teased about having a gay or lesbian parent?

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, ⁹⁶ in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”⁹⁷

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It may, but does not necessarily make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a “substantial change in circumstances.” If a spouse did not know of his or her spouse’s sexual orientation at the time of the initial court proceedings, but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be reviewed. There are many cases from around the country rejecting this as a basis for seeking modification. See GLAD’s Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse. Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁹⁸

Can a court keep my children from visiting when my partner is present?

This issue has not been decided by the Maine Law Court, but a Superior Court case, Stone v. Stone,⁹⁹ applied the right test. A mother went back to court seeking a restriction on her ex-husband’s “overnight visitors,” as he was now partnered with a man. The Superior Court struck the restriction imposed by a lower court because the father was discreet and there was no evidence of harm to the children.

Moreover, visitation restrictions are inherently suspect. In Lawrence v. Texas¹⁰⁰, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were. While courts have the power to do this, visitation should not be restricted unless there is actual evidence that the partner is causing harm to the child. The touchstone for these decisions is the best interests of the child.

Domestic Violence

What is domestic violence?

Domestic violence may take many forms. Generally, domestic violence is a pattern of coercive behavior in which one person attempts to control another through threats or actual use of tactics, which may include any or all of the following: physical, sexual, verbal and psychological abuse.

Under the law, “abuse” means that any of the following have occurred between people who are “family, household members or dating partners”:

• Attempting to cause or causing bodily injury or offensive physical contact;
• Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior;
• Compelling, by force, threat of force, or intimidation, a person to engage in conduct, such as causing another to engage involuntarily in sexual relations by force, or to abstain from conduct in which they have a right to engage;
• Restricting another person’s movement, by knowingly removing them from home, work or school, or moving them a substantial distance from where they were found, or confining the person;
• Placing a person in reasonable fear that a crime will be committed by threatening them or another person that they will be committing a crime of violence against the person; or
• Repeatedly and without reasonable cause following a person or being in the vicinity of their work, school or home.¹⁰¹

Do the domestic violence laws apply to people in same-sex relationships?

Generally yes. The definition of “family, household members and dating partners” includes domestic partners or former domestic partners, people who are or have “liv[ed] together as spouses”, people who are sexual partners or are living together (or did so previously), as well as individuals currently or formerly dating each other, whether or not the individuals are or were sexual partners.¹⁰² The law applies equally to all people, but the application depends upon the nature of the relationship of the people involved.

How do I get a court order protecting me from an abusive partner?

To get protection, go to the District Court in the community where you live or where the abuser lives. The court clerk will have a packet of information for you to complete. There is no fee, and there is a means of keeping your address confidential from the public. You will have to allege abuse as defined above, and indicate where you think the abuser/defendant can be found so that he or she can be served with (given a copy of) the court papers. If the courts are closed, contact your local police who will locate a judge to help. On this basis, you may receive a temporary order of protection good for up to 21 days. In order for those orders to be enforceable, the police must serve a copy on the defendant/abuser, and a defendant cannot be arrested for violating orders if he or she has not been given a copy of them. The orders can restrain the defendant from coming near you or your children, keep the defendant away from your home, and/or place of employment or contacting you at all, and determine child custody issues on a short-term basis.

Violation of a protection order is a criminal offense.¹⁰³

The temporary orders will indicate the date set for the court hearing at which you can try to extend your court orders. At this point, the defendant will tell his or her side of the story as well, and you can be called upon to answer questions. At this stage, both parties often have attorneys. If the Court determines the defendant has made a credible threat to the physical safety of you or a child in your household, the relief may be extended for up to two years.

If for some reason you decide not to go through with the order, it is important to show up in court on your assigned date and ask that the case be dismissed.

In addition, Maine’s harassment law described below may be useful for people who are experiencing harassment from a partner of the same sex.  An order preventing harassment can be taken out against anyone.¹⁰⁴

Where can I go to get help?

In Maine, local domestic violence projects across the state provide direct services to victims of domestic violence. The Maine Coalition to End Domestic Violence (MCEDV) is a coalition of the nine domestic violence projects in the state. There is a statewide domestic violence helpline at 866-834-HELP. This number will direct victims to the projects listed below that serve their county. MCEDV maintains information for same-sex partners on their website.

In addition to the local police, there are several other hotlines and on-line resources:

• Maine Coalition to End Domestic Violence, links to domestic violence projects around the state, (207) 941-1194, http://www.mcedv.org/;
• Sexual Assault Support Hotline, (800) 871-7741 (statewide, 24-hours), a complete listing of local member sexual assault centers can be found at http://www.mecasa.org/;
• Office of the Maine Attorney General, 207-626-8800, http://www.maine.gov/ag/
.

Maine Domestic Violence and Sexual Assault Hotline Numbers:

Aroostook County
1-800-439-2323 OR
1-888-568-1112
http://www.amhc.org/

Cumberland & Sagadahoc Counties
1-800-537-6066 or 207-874-1973
http://www.familycrisis.org/

E. Cumberland, Sagadahoc & Lincoln Counties
1-800-822-5999
http://www.sassmm.org/

Hancock & Washington Counties
1-800-315-5579 or 207-667-4606 (Hancock)
1-888-604-8692 or 207-255-4785(Washington)
http://www.nextstepdvproject.org/ OR
1-800-228-2470
http://www.downeasthealth.org/

Kennebec & Somerset Counties
1-877-890-7788 or 207-623-3569
http://www.familyviolenceproject.org/

Knox, Lincoln & Waldo
1-800-522-3304 or 207-594-2128
http://www.newhopeforwomen.org/

Oxford, Franklin, & Androscoggin Counties
1-800-559-2927 or 207-795-4020
http://www.awap.org/

Penobscot County
1-800-863-9909 or 207-947-0496
http://www.sprucerun.net/

Penobscot & Piscataquis Counties
1-800-310-0000
http://volunteer.united-e-way.org/uwgp/org/219178.html

Piscataquis County
1-888-564-8165
http://wmncare.org/

York County
1-800-239-7298 or 207-324-1802
http://www.caring-unlimited.org/

York & Cumberland Counties
1-800-313-9900
http://www.sarsonline.org/

Does domestic violence play a role in parental rights and responsibilities decisions?

Yes. It is a factor the court must consider in allocating parental rights and responsibilities, and courts may provide conditions upon an abuser seeing his or her children.¹⁰⁵

 

Footnotes

⁵⁰ NH RSA 457:44

⁵¹ 19-A Me. Rev. Stat. secs. 701(5) & 751(1).

⁵² 19-A Me. Rev. Stat. secs. 701(1) & (1-A).

⁵³ LD 1579, 2004 Leg., 121st Leg. (Me. 2004).

⁵⁴ 22 Me. Rev. Stat. sec. 2710(2) (establishing Registry); 18-A M.R.S.A §1-201 (defining “domestic partner” for purposes of Registry).

⁵⁵ 18-A Me. Rev. Stat. sec. 1-201 (10-A).

⁵⁶ 22 Me. Rev. Stat. sec. 2710(2).

⁵⁷ 22 Me. Rev. Stat. sec. 2710(3).

⁵⁸ 22 Me. Rev. Stat. sec. 3710(4).

⁵⁹ 24 Me. Rev. Stat. sec. 2319-A; 24-A Me. Rev. Stat. secs 2832-A & 4249 (2).

⁶⁰ 26 Me. Rev. Stat. sec. 843 (4).

⁶¹ “An Act to Assist Maine Military Families” LD 256, 2007 Leg., 123rd Leg. (Me. 2007). See also, 26 Me. Rev. Stat. sec 843 (4).

⁶² 39-A Me. Rev. Stat. sec. 102 (sub-§11) (A) & (B-1).

⁶³ 31-A Me. Rev. Stat. sec. 1 (20).

⁶⁴ 26 Me. Rev. Stat sec. 843 (7); 21-A Me. Rev. Stat. sec. 1 (13-A); 24 Me. Rev. Stat. sec. 2319-A (1)

⁶⁵ 24-A Me. Rev. Stat. secs. 2849-B & C.

⁶⁶ Portland, Me. Code, sec. 13.6-21 (2001). Available at: http://ci.portland.me.us/citycode/chapter013_6.pdf.

⁶⁷ See The Human Rights Campaign’s Employer Database, available at http://www.hrc.org/issues/workplace/equal_opportunity/search_employers.asp.

⁶⁸ See e.g., Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996).

⁶⁹ See Human Rights Campaign, Pension Plans, available at http://www.hrc.org/issues/4821.htm.

⁷⁰ See Wilcox v. Trautz, 427 Mass. 326 (1998); Doe v. Burkland, 808 A.2d 1090 (R.I. 2002).

⁷¹ Maine Uniform Power of Attorney Act, 18-A Me. Rev. Stat. Part 9.

⁷² 18-A Me. Rev. Stat. secs. 5-904, 5-905, 5-909©.

⁷³ 18-A Me. Rev. Stat. secs. 5-908(a)

⁷⁴ Uniform Health-Care Decisions Act, 18-A Me. Rev. Stat. Part 8.

⁷⁵ 18-A Me. Rev. Stat. sec. 5-802(b),(c).

⁷⁶ 18-A Me. Rev. Stat. sec. 5-803.

⁷⁷ 18-A Me. Rev. Stat. sec. 5-805 (b)(1-A).

⁷⁸ 18-A Me. Rev. Stat. sec. 5-802.

⁷⁹ 18-A Me. Rev. Stat. sec. 5-805.

⁸⁰ 18-A Me. Rev.Stat. sec. 5-805 (b)(1-A).

⁸¹ 22 Me. Rev. Stat. sec. 2843-A.

⁸² 22 Me. Rev. Stat. sec. 2843-A (2)(A).

⁸³ Ackerman v. Hojnowski, 2002 Me. 147, 804 A. 2d 412 (2002).

⁸⁴ 18-A Me. Rev. Stat. sec. 9-301.

⁸⁵ In re Adoption of M.A.,—- A.2d——, 2007 WL 2446019 (Me. 2007).

⁸⁶ See 18-A Me. Rev. Stat. sec. 5-301 et seq.

⁸⁷ See 18-A Me. Rev. Stat. sec. 5-204(b).. GLAD’s case, In re Guardianship of I.H., 834 A.2d 922 (Me. 2003), clarified the law in this area. See also http://www.glad.org/current/pr-detail/maine-high-court-affirms-lesbian-couples-right-to-petition-for-full-coguard/.

⁸⁸ A Me. Rev. Stat. sec. 5-212(d).  In addition, a court can order a “de facto” guardianship even if the parents do not consent where the child has lived with another person and the parents have consistently not participated in the child’s life.  18-A Me. Rev. Stat. sec. 5-101.

⁸⁹ See C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).

⁹⁰ See Stitham v. Henderson, 768 A.2d 598, 605-06 (Me. 2001) (Saufley, J., concurring) (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)).

⁹¹ See C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).

⁹² 2 BNA Family Law Rptr 2593 (Me. Super. 1976).

⁹³ Id. at 2594.

⁹⁴ 19-A Me. Rev. Stat. sec. 1653(3).

⁹⁵ 19-A Me. Rev. Stat. sec. 1501.

⁹⁶ 466 U.S. 429 (1984).

⁹⁷ Palmore, 466 U.S. at 432.

⁹⁸ See generally, 19-A Me. Rev. Stat. sec. 1653 (10).

⁹⁹ Stone v. Stone, 1980 Me. Super. LEXIS 30 (1980).

¹⁰⁰ 539 U.S. 558, 574 (2003).

¹⁰¹ 19-A Me. Rev. Stat. sec. 4002(1).

¹⁰² 19-A Me. Rev. Stat. sec 4002

¹⁰³ See generally 19-A Me. Rev. Stat. sec. 4001 et seq.

¹⁰⁴ 5 Me. Rev. Stat. sec. 4651.  See also http://www.courts.state.me.us/publications_other/pa_ph-1207.pdf.

¹⁰⁵ See generally 19-A Me. Rev. Stat. sec. 1653 (6).