 We'll come back this Tuesday afternoon and we are now here on H3 29, which is only related just by topic, but really quite a different bill than the one that we've been discussing. And so, today I wanted to invite representatives from business organizations who and an attorney who deals with labor and employment. So I think she sees both sides of the coin issue to talk about H3 29 and just as a quick refresher it has several, it has several parts to it. And I may not get them all off the top of my head and one is about extending the statute of limitations on making claims. And one is to say that one that the business can't compare. The severity of cases of or of a claim against another within the same, you know, same context, you know, your case isn't as bad as Jane does was so. The third piece was about giving employees an opportunity to reach out from the organization, if they felt uncomfortable reporting within. And, and then there's the concept of severe or pervasive that we're talking about in this bill. And if I've missed anything else I'm sure our witnesses will remind us so I'll welcome first Karen stack hole welcome Karen. Thank you. Thank you Mr Chairman I appreciate it and thank you to members of the committee some of whom I know well and I appreciate the opportunity to to talk to you folks today about each 329. I've had a chance to review the bill and have a few comments there's some things in here that I think makes sense and there are some in here that I think don't and one suggestion that I'll make off the top if it hasn't already been done is that perhaps judiciary committee, take a look at this too because the ones that don't make sense to me have really specific legal interpretation pieces to them that I think there might be some additional help for. In my way of quick introduction. Let me tell you that I am a labor and employment lawyer licensed in Vermont DC and Maryland. I've been in practice for about 32 years. I have practiced both on the plaintiff side and on the defendant side, in all kinds of discrimination in a and in a variety of jurisdictions state and federal. Many of you know that I spend easily 40% of my practice actually going in house to companies to train people how to act with one another and how to interact with one another in the workplace and specifically training managers. So I think it's important to act in a way that is not only consistent with the law but that is positive and productive. Some of you actually may have may have been there when I had the great privilege of coming into the legislature itself and talking to members about sexual harassment. So, just, you know, in terms of looking at all of this, you know, my goal is always to strengthen that relationship. Really, there's an employer employee relationship. Strengthening that relationship is important, which can be done through training and other things once litigation happens that relationship is busted. And so I think that, and everything goes south it's expensive for all parties litigation is exhausting for all parties in the great state of Vermont it's usually three years to a courtroom from complaint to, you know, to any sort of trial on these things, the vast majority of these types of litigations do not receive summary judgment and I'll talk about that a little bit. And that's because of the standard for summary judgment. So I'll talk about that in a second. But I think to, you know, again there are some good things in here and some things that I think are either not necessary or that because of the language they're so confusing that they could create some issues. As a basic matter I'm sure you all may know or can remember that there's three basic types of discrimination there's disparate treatment disparate impact and hostile work environment. So disparate treatment is I'm treated different than that person inherently it involves some sort of comparison. And this is case law that has been built up. So Civil Rights Act of 1964 was passed on the federal level, and from the 1960s on, there has been federal law, which is primarily what Vermont follows in most instances, as to how to determine these cases. So there are some pretty famous cases the McDonald Douglas case from 1973 sets up a basic burden shift within court cases, as to how you decide whether or not a violation of law has occurred. These are well settled cases. Vermont has followed them very specifically Vermont jurisprudence has grown up basically following these federal standards and some of the things in this bill. And I think unnecessarily mess that up and create potential different standards that I don't think we need. But I just want you to remember that disparate treatment disparate impact, which means, you know, maybe I wasn't treated specific to that person. Hey, I hired a guy and not Karen, I can see that there's a difference in sex in these individuals so that's discrimination disparate impact is something where it may not have been a decision in that moment. But over the course of time you can see that a facially neutral rule or facially neutral standards have the impact of weeding out a certain type of person. So that's a different type of claim, not as impacted by this bill, but something to bear in mind. And last but not least hostile work environment. That was actually a court made standard or cause of action out of the Supreme Court, recognizing that, you know, intent is hard to prove people rarely stand up and say, I'm going to discriminate against you because you are a whatever it is. I just rarely happens does happen occasionally, but it rarely happens. And so instead, sometimes there are situations where you can tell that a person's work environment has been made completely intolerable based on a particular characteristic hostile work environment. There's a very specific standard in that which is actually severe or pervasive, and all through this bill you have severe and pervasive and I think that sounds like a silly difference, but it's huge in terms of how it can be determined so I'm going to talk about that in a second That's an FYI that our attorney has noticed that and has said that that's an error and that we should be reading it as sex has severe. Terrific. Well that's going to shorten up my testimony. So that's actually a really good thing because you have completely in this bill the standard is completely misconstrued and in fact, it would have the potential negative of weeding out claims that might be appropriate claims so thank you if you're if you're going to make it severe or pervasive, follow that standard that's great, but frankly there are pieces in here where you make a big point of that and it's kind of the point of the element so I would be fascinated to see the revised version with that would be would be my thought. In any event when we talk about you know disparate treatment, generally speaking you don't have to prove actual intent, you just have to look at the all of the circumstances that inherently involves some comparison. What you have about comparisons is problematic. And there's a specific burden shift that the Supreme Court in McDonald Douglas set forth in the 1970s and again it's been carried all the way through to the present by basically all 50 states and including obviously and the federal government burden goes something like this. Somebody basically has to show that they're qualified for the job, that they possess a certain protected characteristic race sex national origin sexual orientation whatever it happens to be that some sort of adverse action happens to them. This is also impacted by some of your language adverse action has to happen to them. So not just a trivial slight, but an adverse action something that really impacts their ability to get their job done. And then there has to be evidence that that adverse action happened to them in some way, because of that protected characteristic. Sometimes bad things happen to good people, and it's not always connected to those protected characteristics, but that linkage is really important in the ability to demonstrate discrimination otherwise would everybody would just assume. Oh you didn't give me that promotion, must be because I'm a woman. Oh you didn't give me that promotion must be because I'm over 40. Right just using myself on the easy ones today. You know that that's the kind of thing where as you take a look at that you have to have that linkage because it's a protected characteristic that is the cause of what's going on here. So, you can show that evidence of linkage in a couple of different ways. You can show it by showing the person, you know actually said out loud I don't like you because you're a whatever it is. It doesn't happen in my experience of doing litigation or even trainings that often happens every now and then but not that often, or somebody makes negative comments about either that person based on that personal characteristic or jokes, memes posts on social media about that same type of person so I didn't make it about you, but I can show some animus to that particular type of person. I don't understand that there might be some ability to show motivation there, or you can show that that person, you know makes negative or discriminatory comments, or over time has discriminatory hiring practices. So I always tell employers, look at your patterns. Right, you may, you may say, oh I don't discriminate against men. I definitely don't. I like having met in the workplace. Well how many of you hired lately. Oh, I guess not that many. Right so the impact of that makes a difference to. So when we think about, you know, a prime official case the burden to produce the discrimination evidence is essentially on the plaintiff on the person who brings the suit. That's true if I want to say you breached a contract with me. That's true if I want to say hey you hit me and you hurt me plaintiffs generally bear the burden of proof. But in discrimination cases, the way the Supreme Court has put this together in the McDonald Douglas test is the employee first first has to show a prime official case. Then the employer has the burden of showing not proving but showing some legitimate reason. Why did why I did this. Well Karen you're a performer. Well Karen you keep coming in late. Well Karen, you know there are you stole money from the company whatever it happens to be a legitimate non discriminatory reason for what I did. So that's a that's a kind of a basic piece but you should also know that the law allows for mixed motives. I can have a legitimate motive you kept showing up late, and I also don't like you because you're a whatever it is. And those are also allowed so the burden of proof remains on the plaintiff. There are pieces in this bill where you kind of shift that burden of proof and make it. It looks like it anyway, it makes it hard to understand and certainly goes against this long line of jurisprudence. So I'll point those out to you. And again this is from, from precedent. There are some things I like about the bill one you said earlier it's about establishing a statute of limitations, I would suggest that it's, you've clarified it appreciate that. And you've made it six years. And frankly, in Vermont that's been a question for a while there's a case conglinton versus Fitzgerald, where we've or Fitzgerald versus conglinton camera which that basically we in my practice have assumed that for personal injury type damages. It's a three year statute of limitations. So it's been mixed up and it's been hard for employers to understand. So I appreciate the fact that you've clarified that statute of limitations, not going to argue with six years because I'm pretty much used to that. And that's what we've assumed in those. So I really don't have any problem with that particular piece. You added the word harass to fair employment practices. You know, along with the word discriminate. Frankly, I don't have any problem with that the general definition of harass though we'll talk about that for a second, because I think that where you define harassment, there may be some issues but generally speaking harassment is a form of discrimination. It's well recognized as a form of discrimination. So you're adding that word isn't terribly problematic to me but it is somewhat redundant. You need to pursue an internal grievance that's on page three of the bill. I think you were well intentioned in this, but this is already the law. No one is required to go internally to make a complaint before they bring a suit either under Vermont law, or under federal law, it's not required. And I think that's an important thing. I think it's an important thing that it's not required already because there is fear by some people as to retaliation for doing that. I get that I understand that. I think that's a good protection your language, however, creates a little bit of a problem for me anyway, because it is the way that you've worded this almost looks like somebody can skip this step or encourages them to skip this step. And I disagree with that. And here's why. Employment is a relationship. An employer should create an environment and a process that is fair for resolving disputes. If you think that you've been discriminated against for a particular reason to keep that relationship together and to salvage something, it makes sense for an internal relationship to go forward. You're required to go through it. But I think you should be encouraged to go through it. If you can, because I think in those kinds of situations. I do lots of investigations. And from those investigations, people get fired, because I've done something wrong, potentially, where people get disciplined because they've done something wrong. There are when there are good mechanisms in place. And that's not every place, but I wouldn't want to discourage people from going inside because that breaks that relationship irrevocably, when in fact, it doesn't have to be broken that way, if you have that good internal process. So that's an area where I don't agree with the language that's in there presently on internal processes because I think it's confusing and it can be seen to suggest to people. And I don't think that's a good idea. Another point that I would make is that the point you you just mentioned that sexual harassment need not be severe and pervasive in order to be unlawful as long as you're changing it to or. You know, I think that's an important thing that's a huge change in the law and I would not encourage you at all to do that so I'll wait to see the revived language before I comment further on that. In the language of the bill. There's a little bit of lack of clarity. To me, in the language that says for the burden of proof, the. You're indicating that an employer need not come or an employee need not compare themselves to somebody else. Right in order to show disparate treatment, or even disparate impact. You have to have somebody you have to be able to demonstrate that it was that protected characteristic that was really the reason for the action that is best done by comparison, and I should say one of the ways that's best done is through comparison. And that is looking at somebody who's similarly situated, it doesn't mean exactly the same. In fact, there are plenty of quotes that say you don't have to have somebody who's exactly the same. It's just somebody who's similarly situated somebody in a different department that might do similar things as you do, and they were treated in a different way, or holds a similar, you know, position has been there similar amount of time. I think the current standard is actually good on that. And I'm concerned that the language you have that says somebody doesn't have to compare themselves in order to prove it takes away the McDonald Douglas test, the prima facia case of the McDonald Douglas test, which I think is well settled law, and I think actually works well, because even if I can't show an immediate comparator and I can't show what we would call disparate treatment discrimination might be able to prove disparate impact. Right, that's still a part of the law is that I can show patterns that this employer routinely does this to older workers, or two workers who are a particular sex or a particular sexual orientation. So I think what you're doing is actually undermining the current state of the law. That's when you are suggesting that they don't have to have a comparator so I would not agree with that particular part of the part of the statute. And like I said intent is hard to prove. It's almost impossible to prove, but you can prove it by actions over time that disparate impact, where you can show it by comparator so you're, you're taking away a tool in the toolbox if you will, for somebody to be able to prove discrimination. What I would like is that you say behavior that is that is reasonable. That is a reason that a reasonable employee with the same characteristic would consider a petty slight or trivial inconvenience shall not constitute unlawful harassment or discrimination. The way I read that language is that the employer now has the burden of proof, not the employee. Again, that's a huge shift from, you know, federal precedent and state precedent, the burden of production to show a valid reason is something that the employer has but that's not a burden of proof. The burden of proof under the federal statute and under the statutes of pretty much every state I can't think of one that that's not the case, because they all follow McDonald Douglas in one way shape or form. You know you're taking away, fundamentally changing that burden of proof that could have really huge impacts. Number one, it could subject us to a lot more litigation as people try and figure out if that's really what you meant. Number two, because it's just such a huge change, we would be making new law all the time instead of being able to rely on well established law. And I think it would have a negative impact on businesses where they're deciding, hey Vermont so far out of the realm, do we want to have employees there. And these days a lot of my clients have, you know, one or two or three or four employees in a lot of different states. They could think differently if they think Vermont law is going to apply in a particular situation, and it's going to be so starkly different from every other states law so I think this particular provision. Basically, the language looks like the burden of proof is on the employer. I don't think that's the way it should be that's a stark change. And so I would not, I would not recommend that piece. Adding crime victims, I saw that the laundry list of things that protect that people are protected in terms of characteristics of Vermont law. No problem with that makes sense to me that you apply the anti discrimination statute that way. And last but not least, separate judgment. I note that and I've got my pocket constitutions here and if anybody needs them you'll let me know because you know I buy them by the thousands every year. Bottom line is the legislature has one job, the courts have the other summary judgment is something that you know it's a tool within a court to be able to, if all of the critical facts are established meaning there's no dispute in critical facts. And you win as a matter of law, you can win a summary judgment motion in discrimination cases almost never happens. I've won some, but in 30 some odd years, I haven't won more than 10. Right. So because it's hard to do, it's a hard standard. Many insurance companies who do defense stuff will say to me, that's about, you know, 16% definitely doesn't top 20% that ever gets summary judgment motions. But I think what you've done here with this standard is to say, summary judgment, you know is not applicable and you've stated that you're with all due respect, you're really not in the situation at that moment to make that determination. So if the court is reading depositions, sworn statements, documents that have been exchanged in discovery, there's all kinds of things the court has to read that are really really fact specific to that case to determine whether or not summary judgment is appropriate. So I think there's already significant protection, certainly for plaintiffs, and getting these cases gone in that in that kind of a piece without a full hearing. It's frankly beyond the purview of the legislature. So I think with that, I will close those are my basic thoughts on this bill. I, you know, if I, if you were to ask me what I'd like to see, I'd like to see more money for training. A lot of small businesses can't afford good training. You have in sexual harassment statute, a suggestion of annual training and a requirement of training for sexual harassment specifically. But if you were to really make a difference, make money available for small employers in particular to have good solid trainings done for their managers to educate people to be good managers. It's a great program that I will haunt my friends at the Vermont League of Cities and Towns have have provided scholarships for many of their members to do trainings, and it has very much improved how their labor relations go on on thin budgets so I think it really does make a difference. Anyway, I'll stop there I thank you very much for the privilege of coming to speak with you. And I hope this has been helpful. Well, thank you Karen and as always, you don't mince words and I appreciate that so I have a question and then represent I know represent Toronto has a question. The piece about the piece about when you were saying about, you know, the relationship can get fractured very easily once things get into a litigation stage, and that this this idea that the idea that someone don't should should can bypass internal human resources or whatever. And I think you made a comment that struck me as being like in a well trained company that shouldn't be a problem. I'm just curious, you know, I think one of the reasons that we heard was that some people feel, especially in smaller companies, or nonprofits or in, you know, other places where where there's. It just is really hard for somebody to go inside when they know that the person they're going to works for their boss, or may work for the person that is is perpetrating the behavior. And I'm just, I'm just usually statute gets put forward because what we expect of people may not happen. And I'm just curious to know, I mean, you seem to think that that your opinion here I think was that we do have the protections in place. And that this is this isn't this may not be necessary. Yeah, I guess you know the language that you have is an employee's decision not to pursue an internal grievance complaint or other remedial process with the employer. Employment agency or labor organization shall not be determinative in any claim that an employee employment agency or labor organization violated the provisions of this section. I just think the, I think easier language would be, it's not a requirement for you to sue under this provision that somebody go through an internal process, comma, but people are, you know, are encouraged to seek out a process. If there's one available, and you could take out that little last section if you wanted to, but just to say that it's not required that would just be a statement of the current law. Like the current law is that it's not required. I think stating it this way for me lends a reading that you're encouraging people oh since it's not going to be considered don't do it. You don't have to do it so don't when in fact a relationship. There are a lot of people as was discussed in the last segment. You know there are a lot of people who really like their job. But the relationship has broken a bit because somebody acted badly. If they go internally and there's an appropriate investigation, and the person who engaged in the bad behavior is either disciplined retrained or a combination of both. That relationship could be saved. That person could maintain the employment with the organization that they love. Right. And to me, that's a win win, because the organization learned something managers, you know, learn something, and the person gets to stay where they want to stay. And so I would just encourage an internal process. I just think this language needs needs to be tightened up because I think it can encourage people to skip that process, which I think is a mistake already under the law. I think it's required under state or federal law to exhaust that, you know, to exhaust an internal process in order to bring the suit. It's not required represent a trial. Thank you. And Karen that that was a really excellent run through that you gave us and really covered all the points very well and made everything really understanding. And three points that I do sort of, I think you sort of answered the question that I, what the first question I had was in establishing a hostile work environment. There are oftentimes when employees who work with each other. Their relationship breaks down over time because of personality differences, political ideology, whatever it may be. And the individual who one individual begins to harass another person implicitly or explicitly I should say, not knowing that this is going on. You know, it seems to me that we need to look at that and address that because it's not always over. And it makes it difficult to establish that there is actually harassment going on in that in between those workers. Yeah, I mean, I think to be honest with you the way it mostly gets proven is to demonstrate so harassment is what I would suggest to you is that harassment is just a form of discrimination right, because harassment is I'm actively making your work life difficult. That's different than I refuse to hire you, I fired you or I put you in a disciplinary status. So harassment is just active treating somebody in a way and again that language severe or pervasive. It can be one act that is so severe that it changes how you feel about the workplace, a noose hanging on the locker of a person of color for example, that's not enough that would that one act maybe severe enough under current law to create a hostile work environment, right, to change those working conditions, or it could be a series of small things. Hey, sweet cakes, how you doing. Oh, love lumps you look good, you know, like really just ridiculous sexually, you know, related comments things like that, that none of them in and of themselves is so egregious. And so for the course of time, that person doesn't want to go work anymore, or they don't want to work with that person just makes it miserable. So those protections already exist. Right. And so and that's where the severe or pervasive matters because I don't have to prove both. I don't think there's anything in this bill that advances for me in a positive way how that gets proven right and I think that unfortunately because of this trivial slight language that makes me nervous because it again looks like you're switching the burden of a person to prove on management to prove that a reasonable person over here not the person who's being hurt, but the reasonable person over here. Number one you got to prove that they're reasonable person. Number two that this person wouldn't have been upset by me calling them honey sweetie darling. What's wrong with you. That's just a whole extra level of proof that I think isn't necessarily needed in order to do what it is that we currently are able to do, which has demonstrated hostile work environment by just showing, you know, the types of behaviors that are happening, severe or pervasive. Did I answer your question. Yes, that was that was very good. Yes, that's where I was kind of headed. Also, when you spoke about the burden of proof and an employer having to justify or rationalize, say a termination of an individual by saying they came in late or they, you know, this happened. You know, I was an investigator for 35 years for criminal defense and, you know, so what type of investigation goes on in these cases that would investigate whether that claim is accurate by the employer or not. So just to just to one clarification there that's actually what in the in the McDonald Douglas cast test. That's actually called a burden of production, and not a burden of proof because the employee always retains the burden of proof. But the employer once a prima facie case of discrimination has been made. The employer has to produce some evidence that the reason that they took the action was legitimate and non discriminatory. They have to, they have to say well it was because she was like, I've produced that. And ultimately at trial I would have to have evidence that oh look at Karen's timesheet she keeps coming in late right, but I just have to produce that the burden of proof that the bad thing happened because of sex or because of race or whatever is characteristic always stays with the plaintiff. Right. And so I think the way you get at whether or not there is a legitimate non discriminatory reason is again the type of evidence you know we look at time clocks was this person actually always late, we look at evaluations well if you say this person did really poorly on their evaluations and nobody else did that poorly. Well I got a bunch of people I can compare them to right. Anybody else who's in that position anybody else who has that supervisor. So there's always evidence that one can use, or the absence of evidence, you know somebody can Karen's always late and Karen's always, you know, mouthing off. Well, did you discipline Karen. Well, do you have any notices that you discipline her gun emails where he told her she got to come in, you know so there's really simple stuff that you can use to demonstrate and again it is comparative data that's why I'm troubled by the language in here that talks about, you don't have to compare yourself with somebody else. It's usually the basis of those determinations. People rarely stand up and say, I'm treating you differently because you are X. It's usually circumstantial evidence, and that circumstantial evidence is demonstrated by comparing somebody who's in that claim and their personal characteristics with somebody who doesn't share those personal characteristics, but who's an easy comparator, same position, same length of time of service something along those lines. So that implicitly we can say, Oh, well you didn't say you were discriminating, but gee, look how you're reacting to somebody who doesn't have those characteristics that doesn't seem right. Does that make sense. Yes, just the right intent is very difficult to prove, but it appeared about both criminal and civil statutes. Infant item I mean it's there in so many cases and it's generally established through inference. You know, if you break it to someone's house, the inferences that you did that to steal something, even if you didn't steal anything. Yeah, that's right and in fact that's what's here so you don't have to prove somebody's actual intent already under the under the established law. But if it over time if you're examining it, if it looks like a duck, you know quacks like a duck. At some point somebody's gonna say, I think that's discrimination so yeah it's, it's, you don't have to prove it, you know, I'm intentionally discriminating, you just have to prove that you differentiated this person versus this person because of that protected characteristic you may not even know you were doing it, but you did it. And we get you to it. Going back to the inadvertent. In place of bias. And just the last thing I think, you know, I, I was struck by the same thing that you told us about about summary judgment motions and you know it's really part of a civil practice that they're filed in and almost every case and I think you're right that they rarely prevail. I actually don't file them in every case because they are so hard to win. I'd make a calculated decision in many cases look their facts and dispute I can't win this why would I do that. Why would I try where there is however where the facts do look like they line up specifically and I think I went as a matter of law. Absolutely I will file one. But I think to prohibit it, and or to just say as a legislature, we don't think it's ever appropriate. I just think that's beyond the bounds the court is in the best position to make that determination based based on the facts of the case. Great. Thanks very much Karen. Thank you. Thank you. Representative Blumlee that clocking. Yeah. Hello, counselor. Hello. Hello. I, I had a question about the internal grievance. Clause or provision. And just because statute is silent on requiring some that something be demonstrated. Isn't doesn't offer protection necessarily and for me, the word determinative makes a difference in that sentence, because what it seems to be saying is that, I mean, it's this statute or this bill is being explicit about saying that this isn't that not appealing through your internal grievance process will not be determinative in of your settlement, your case. It won't fully influence, you know, that decision and, and, and I hear you saying that that's, you know, there isn't anything in, in statute that requires that somebody do that, and demonstrate that but, but this is trying to essentially be more explicit in the fact that this cannot be used as a determinant of a decision. I think the way I would do that though would be to word it differently to say that it shall not preclude somebody from bringing a claim. If they go through that process. And maybe that that it doesn't an employer can't use that in a certain way I guess what bothers me is I've looked at this language a bunch of times, and I've talked to a bunch of my colleagues and we're all a little bit confused by it. I think if we're confused by it, you know plaintiffs might be too but I think again, it also says to me that an employee's decision not to pursue an internal grievance complaint, or other remedial process. It's almost like you're encouraging because then you say shall not be determinative so I'm giving you something for not going through the process. I think it has a weird. I think it has a weird negative impact. So instead, I think what I would say is, you know they're not required to go through an internal process before bringing a suit maybe, or isn't barred from bringing a suit if you know regardless of whether or you're in an internal process, but I think the way this is worded is what gets to me and it almost suggests to somebody, hey look there's a bonus round for not going through that process. And I personally think that internal process, if well and appropriately done is a is a way to save that relationship because many times those relationships can be saved, but I appreciate your comments and I understand, I definitely understand the intent of the language. But I think, you know, statute in part is intended to protect those who aren't necessarily protected by good employer relationships and policy. So, anyway, Fair point. Oh, thank you representative clacky. Welcome Karen nice to see you again. Nice to see you. When I was at the Flynn you did terrific training for our staff but I still really appreciate so you're great. I'm, I'm with representative Blumley I'm trying to understand and parse this, because if I read it now is not required to that would be a signal to people that you don't have to do it either. If that was the only language in the bill and I'm really, I'm hearing this issue that it's not clear, but and I want to get it to be fine tuned here and I think you're what I'm hearing. Is that your thing is as muddy to me as what exists right now. Yeah, well, and that may be that so I may not have improved the clarity for you. I guess I can honestly say though that the language struck me as saying that, because of the way you lead with, you know, an employees decision not to pursue it. It essentially says, here's, it essentially says to me, this is what you get if you don't pursue it. And so it's kind of like giving somebody a plaintiff reading this or plaintiff's lawyer reading this saying well, let's not go through that process let's not even try because not only do we not need to do so, but it's not going to be determined if we get a ruling already from the court. You know, for you if you will, if we don't go through that process. That's how it strikes me, I absolutely would be willing to, you know, look at any revisions on that but that's how it struck me and I talked to a couple of colleagues who had a similar reaction to that's why I bring it up. If, if that clause was taken out of this bill language, would it damage any of the issues we're trying to address, because if the law already doesn't require this. Yeah, by saying that I, or would it, do you think something's needed. So I haven't seen so it's a great question that you're asking kind of like what problem are you trying to solve. I actually haven't seen a situation where this has been a huge issue, I think that people often will go through a process I would agree that in smaller companies where you don't have people who are professional HR individuals. There might be more concern about going because they're going right to their boss or they're going right to the owner. So I think in smaller companies that may be less incentive to go through that internal process than a bigger company where you know most bigger and well organized companies will have an anonymous option so they might have an option where somebody can make a phone call and the complaint gets made anonymously and goes to human resources. So as a skilled HR person, that person can take in the claim, or even a skilled manager, you know frontline manager, that person can take in the claim and say, I'm going to look into this, and decide if something bad is happening and if so I'm going to fix it, and I'm never going to identify who that person was that made the complaint. So I guess, I just feel like the way this language reads from the top part of this, then to the bottom, almost gives people an incentive to bypass that process. And I just think it's a process that has value. So, and in your 30 years of law practice here, representing employees now in these issues. Was it an ever an issue that they never that they didn't do an internal process. I can honestly say that with regard to some plaintiffs and not just people I've represented but people who have been on the other side in certain situations, there are legitimate reasons people don't go forward in a in an internal process and fear of retaliation is is clear. You know, I can say that even doing trainings, I have had, you know, people, people of color or people who with disabilities or people who have, you know, a different religious practice who said, I'm already really different. So when internally this, you know, this is intimidating to me, and I totally understand that. I totally understand and appreciate that. I don't know that this language, exactly makes that go away. But I think a reaffirmation to people you don't have to go through an internal process to bring a claim. That's already the law. So I would, I think staying with the current law, to me, make sense and then just making sure that people are aware of that. And it even added to, you know, I actually it's already on the posters, both state and federal, but you know it's an option that people have to go external already and it's on the posters that are in their, their lunchrooms and whatever else, but encouraging people, you know what, if something is broken, bring it to us because we'd like to fix it. I personally think is a good idea. Okay, thank you. Yeah, thank you. Last question. And then we're going to take a break so folks from VBSR and the chambers thank you for waiting we'll be right. We're going to take a five minute break after this last answer and then and then we'll come right back. Karen, but with both age 320 and 329 and these discussions of discrimination in the workplace or sexual harassment we hear loud and clear that litigation is expensive. And that the case itself because of issues surrounding intent and lack of paper trails, usually whatever there's not a lot of evidence. So when someone comes to you as a as an employee, and says, I have this. This is happening to me at work and I think that there's this, this for a treatment I think it's a hostile work environment. So we spend a few hours, however long it takes to do the research on it to depend to determine I mean we're talking at every level, people peel off because they're told that they're that this isn't going to work or this may not happen or. And you know so the percentages of cases that are actually settled or gone to litigation really decrease compared to the numbers where people think that it's happening to them or that it is that they're experiencing it. How do you talk to a client who's come to you with this thinking that this has happened to me and break the bad news that you don't really think that there's a case here that's that we can litigate or even settle. You know, I mean I'm just curious to know like just that just that interaction with with your clients because they have to then go back to or make a decision about whether they have to go back to that work and choose to live through it or try to you know try to live like as you as you've been expressing like fix the relationship if they can. It's really hard. Yeah, absolutely. I mean I don't disagree and I think you know I think I will make the point though that there's a lot more evidence and you think there is. I mean in today's world think about all the electronic devices that we all have sitting in front of us. And so, and people are inherently kind of chuckle heads and will create trails of bad behavior that you don't even think about whether it's a post. A post that says, you know, oh, you know it's a picture of my face on a on a t rex and it says, oh my bosses, you know, you know she's going to, she's going to go to the way of the tar pits, you know she's that old, that stuff gets posted. People post people post ridiculous things and people send texts to one another hey, do you want to see my scar, and then suddenly an employee is getting a text with a picture that shouldn't be on that text to that employee. So there's actually a ton of evidence that definitely shows up. Lots of pockets of evidence actually that that that we find in cases for good that are ugly. So I think more often than not the question is, can somebody tie just poor, ugly, stupid behavior to that protected characteristic. Some of you have heard me kind of do that ring thing which is the law protects, you know certain personal characteristics. That's a pretty finite grouping of things policies that a company has good policies, pretty much take that out of it. And they say, as my mother used to say, you know, yes, I understand that's what they do at their house but that is not what we do here. Right, so here we have a higher standard than just what the law allows you are held to this standard. And then there's that all that other behavior that just ridiculousness that happens in the workplace. So there's all kinds of silliness, stupid comments, you know, tricks that people play on each other just for the heck of it. So the trick is to be able to determine is this really because somebody is just not well informed and kind of acting like a jerk, or is it because of a particular characteristic. Weeding out that stuff is not always easy. That's why using comparators. So it's a really important piece. And you break the news by explaining to somebody, you know, this is what it takes to prove a case. But I'm going to say to you, there's not a lack of claims that are made. We see a lot of this and particularly when there's hard times in the economy in the last two years, we've seen a huge uptick in litigation, no question, and huge uptick in these kinds of claims I don't know if Julio has seen that. Also, in his biz but I would imagine that he's seen some additional activity. And it's partially because people relationships are broken people are feeling vulnerable and so they're looking for for recourse in that. So we have, you know, it. We bring claims, meritorious claims and flimsy claims all the time I haven't seen that flood, you know, slow down in any of the last 10 years for sure. All right, well thank you. Yeah, thank you for spending so much time with us today this has been. Okay, then we're going to take a break now you're free to say, you're free to say to hear the other testimony or if we have questions, or we'll get back to you as well.