Anti-Discrimination Law in Rhode Island
Rhode Island's anti-discrimination law prohibits discrimination based on sexual orientation, HIV status and gender identity or expression.
Questions & Answers (Accurate as of December 8, 2010)
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.
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
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.
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
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
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
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.
- 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.
- 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.)
- 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.
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).