Employment | Discrimination | Vermont
Does Vermont have an anti-discrimination law protecting LGBT individuals from discrimination in employment?
Yes. Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).
In May, 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). 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” (1 V.S.A § 144).
Does it also protect people perceived to be LGBT in employment?
As to sexual orientation, 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 below 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. The hate crime law, discussed below, also applies to actual or perceived sexual orientation and gender identity.)
As to gender identity, and as noted above, gender identity is defined as wither “actual or perceived gender identity.” This language includes discrimination based upon perception.
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 (21 V.S.A. § 495 (a)(1)). 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 (21 V.S.A. § 495 (a); § 495d(1) (definition of employer)).
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 (21 V.S.A. § 495 (a)(4)).
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 (21 V.S.A. § 495 (a)(2)).
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 to have a non-LGBT employee fill it (21 V.S.A. § 495(a)). There are no general occupational exemptions from the reach of the non-discrimination law, however, and this defense is very rarely successful.
- As to sexual orientation and gender identity, religious organizations – and charitable or educational organizations operated, supervised or controlled by a religious organization – are exempt from the law to the extent that they give a “preference to persons of the same religion or denomination” or take “any action with respect to matters of which is calculated by the organization to promote the religious principles for which it is established or maintained (21 V.S.A. § 495(e)). 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; or
- submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or
- 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 (21 V.S.A. § 495d (13)).
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 (21 V.S.A. § 495h).
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 (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)).
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 that one option about where to file.
State Employment (as well as 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
(802) 828-2481 (fax)
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.
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) 828-3665 (TTY)
(802) 828-2154 (fax)
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.
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 riles governing these processes, but employees 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 (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.
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 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.
What happens after a complaint is filed with the Commission or the Civil Rights Unit?
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).
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 (21 V.S.A. § 495b).
Can I also file 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 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.
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, 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.
What can I do if my employer fires 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 (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)).
What can I do to prepare myself before filing a complaint of discrimination?
Contact GLAD Answers at www.GLADAnswers.org or by phone at 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.
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