Public Accommodations | Discrimination | Vermont
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” (9 V.S.A. § 4501).
Does Vermont have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?
Yes. Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (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 LGBTQ+ in places of public accommodation?
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 either “actual or perceived gender identity.” This language includes discrimination based upon perception.
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” (9 V.S.A. § 4502 (a)).
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 V.S.A. § 1204 (e)(7) (prohibitions against discrimination based on marital status apply equally to parties to a civil union). Visit also discussion of civil unions below). However, a religious organization or any nonprofit organization operated, supervised or controlled by a religious organization shall not be required to provide services, accommodations, advantages, facilities, goods or privileges relating to the solemnization or celebration of a marriage (9 V.S.A. § 4502(l)).
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 (9 V.S.A. § 4502 (d)).
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. Visit the section on Students’ Rights for further information about the rights and protections for school students.
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.
For Public Accommodations (as well as State Employment 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:
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.
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.
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)).
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).
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 their case there?
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).
Can I file more than one type of discrimination complaint at once, for example, if I believe I was discriminated against 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 or more minor children and receipt of public assistance, but do not include ancestry and place of birth.
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.
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 their free speech or equal protection rights were violated – then those matters must also be heard in court.
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 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).
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