Discrimination | Transgender Rights | Vermont

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” (Public 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).

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” (Public 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). Thus, in the case of gender identity discrimination, there is explicit protection both for transgender people and for people who are perceived as transgender.

Not specifically. But in some situations, if a person is discriminated against because of their association with LGBT individuals or causes, it may be possible to show that the discrimination was because their employer or landlord believed that the person themselves was LGBT.  This would count as discrimination based on perception, which is prohibited.

Vermont law prohibits discrimination in employment, places of public accommodation, housing, credit, and a variety of services.

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 that one option about where to file. This chart provides a quick guide, and the details are discussed afterwards.

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) 828-1625
(802) 828-2481 (fax)
human.rights@vermont.gov

A complaint may be filed under oath in person, in writing, by fax 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
Vermont Attorney General’s Office
109 State Street
Montpelier, VT 05609-1001
(888) 745-9195 (Toll Free in Vermont Only)
(802) 828-3657
(802) 828-3665 (TTY)
(802) 828-2154 (fax)
ago.civilrights@vermont.gov

Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can find at www.ago.vermont.gov/assets/files/Employment%20Discrimination%20Complaint%20Form.pdf.

• 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 Financial Regulation
89 Main Street
Montpelier, VT 05620-3101
(802) 828-3301

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 (800) 964-1784.  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

Office of the Attorney General
Consumer Assistance Program
109 State Street
Montpelier, VT 05609-1001
(802) 656-3183
(800) 649-2424 (Toll Free in Vermont Only)
(802) 304-1014 (fax)
ago.civilrights@vermont.gov
http://www.uvm.edu/consumer

or with the Superior Court of the county where the alleged discrimination occurred.

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 riles governing these processes, but employees and other defendants are likely to have legal representation.

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts (Code of Vermont Rules 80-250-001, Rule 2). The Attorney General’s Civil Rights Unit 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.

Yes. The state anti-discrimination laws for employment forbid taking any 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 criteria are expanded to include marital status, but do not include age, ancestry and place of birth. In housing, the criteria are expanded to include intending to occupy a dwelling with one of more minor children and receipt of public assistance, but do not include ancestry and place of birth.

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 fourteen (14) days (Code of Vermont Rules 80-250-001, Rule 10). 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 (9 V.S.A. §§ 4551(a) and 4554(d) – (e)).

If you file a complaint with the Civil Rights Unit (CRU), the process is very similar, and is described in detail on the CRU’s website: www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php.

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 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 (9 V.S.A. § 4554(e); Code of Vermont Rules 80-250-001, Rules 31-32).

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 (www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php).

If reasonable grounds of unlawful discrimination are not found, the case will be dismissed at the Commission (9 V.S.A. § 4554(d)). If the CRU finds no violation of law, the file will be closed (www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php).

At this point, or at any point in the process at the Commission or the 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 the Commission, the Commission will administratively dismiss the investigation although the Commission may file its own complaint regarding the matter or intervene in your court action (Code of Vermont Rules 80-250-001, Rule 27).

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 (21 V.S.A. § 495b).

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 (9 V.S.A. § 4506(a)). In addition, criminal penalties of fines up to $1000 may be imposed (9 V.S.A. § 4507).

In all of these cases, the court may grant attorney’s fees, cost (9 V.S.A. §4506(b)(public accommodations and housing); 21 V.S.A. §495b(2)(employment)) 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).

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 the 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 the CRU has terminated the case. (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:    https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. See also https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the Commission or the 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.

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. State or Federal Court: After or instead of filing with the Commission, the CRU or the 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, you may file a court case to address other claims that are not appropriately handled by discrimination agencies, such as when you are 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.  Similarly, if you have a claim for a violation of constitutional rights – for instance, if you are a teacher or a governmental employee who believes his or her free speech or equal protection rights were violated – then those matters must also be heard in court.

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 (9 V.S.A. § 4506(e)(retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495(a)(8) (retaliation prohibited in employment).  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim by a gay man who had brought a sexual harassment claim under Federal Title VII)).

Contact GLAD Answers at www.GLADAnswers.org or by phone at 1-800-455-4523 (GLAD) any weekday to discuss 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, they 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 to bring the attorney an outline of what happened, 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, as well as any contracts, job evaluations, memos, discharge letters and the like.