Anti-Discrimination Law in Vermont
Vermont’s anti-discrimination law prohibits discrimination based on sexual orientation, HIV status and gender identity.
Questions & Answers (Accurate as of March 4, 2014)
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.
Do protections exist for transgender people under state anti-discrimination laws?
Yes. In May, 2007, Vermont became the third state in New England 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.
Vermont law prohibits discrimination in employment, places of public accommodation, housing, credit, and a variety of services, each of which is addressed below.
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 Also, because some employer health plans are governed by federal law or the insurance laws of other states, whether an employer is legally required to add a same-sex spouse to a health plan is complicated. However, an employer can always offer coverage to a domestic partner or same-sex spouse if the employer so chooses.
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 conforming 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
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 same-sex couples who are married or in 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, independent, and post-secondary 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 school students.
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 Also, mobile home park owners are prohibited from discriminating on the basis of sexual orientation or gender identity.18
This law also prohibits discrimination based on marital status, and therefore applies to discrimination against same-sex couples who are married or in a civil union.19
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.20
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.21
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.22
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
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
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
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
- You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.
- 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.
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.33 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.34
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.35
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 Commission36 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.37 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?
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.38
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).
Can I also file a complaint a discrimination complaint with a federal agency?
Yes, in many cases. Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). But if you initially institute your complaint with the Commission or CRU and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the Commission or CRU has terminated the case.41 (People who work for federal agencies are beyond the scope of this publication.)
Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law. This is true because there may be overlapping provisions of state and federal law. For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”
Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination. For more information go to: http://www.eeoc.gov/eeoc/publications/upload/Gender-Stereotyping-LGBT-brochure-OLC.pdf.
GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the Commission or CRU first but keep in mind the possibility of pursuing a federal claim as well. If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the Commission or CRU cross-file your complaint with the EEOC.
LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to the Commission. For more information go to:http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination.
Are there other options for filing 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.
- 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 Answers at 800-455-GLAD (4523) any weekday between 1:30 and 4:30 p.m. or by email or live chat at http://www.GLADAnswers.org.
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.
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).
139 V.S.A. § 4501.
149 V.S.A. § 4502 (a).
15 15 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).
18 10 V.S.A. § 6236 (d)(3).
1915 V.S.A. § 1204 (e)(7).
209 V.S.A. § 4503 (a)(5).
219 V.S.A. § 4504 (2).
229 V.S.A. § 4504 (5).
238 V.S.A. § 10403.
248 V.S.A. § 14303.
259 V.S.A. § 2410.
269 V.S.A. § 2362.
279 V.S.A. § 2488.
28Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
298 V.S.A. § 4724 (7)(B).
308 V.S.A. § 4724 (7)(C)(i).
318 V.S.A. § 4724 (7)(C)(ii).
32 8 V.S.A. § 4724(7)(E).
33Vt. Code R. 80 250 001, Rule 1.
349 V.S.A. § 4554 (a) – (c).
359 V.S.A. § 4554 (e).
369 V.S.A. § 4554 (d).
37Vt. Code R. 80 250 001, Rule 23.
3821 V.S.A. § 495b.
399 V.S.A. § 4506.
409 V.S.A. § 4507.
41United States Code 42 sec. 2000e-5(e)(1).
439 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).