 All right, welcome everybody. It is Tuesday afternoon and after a long morning, sorry, here on, we're gonna work first on H244, which is our bill authorizing the natural organic reduction of human remains. And we were just about ready to hope this bill out on Friday before our break. But the way the floor went and everything else, and the weather, I believe is an issue on Friday. And so we've postponed the vote on that till today. We do not have Katie with us. I don't know that we've had any, and we had talked to her and agreed that we were all set on this bill. And I guess the question is, first, is the clerk ready to support the vote? Oh. Almost. Well, she's getting organized. Can I do you have a copy of the, okay, again, for the remains on Friday, because it wasn't a score pile up on our interstate. There's not a 36 car crash in our interstate before, including with the town. And it actually is after my exit, but it is not after Lisa's or other members of our house. I went by about an hour before it happened. Yeah. Because you really, because we were able to leave, we were able to be beyond that moment, which truly was a fear that we were facing. So yeah. Thank you. No, it made a difference. Good. It was having it was gross. Just the, which here in Waterbury was just a struggle. Sad to hear that. Yep. That someone died. Yeah. I don't know. I don't know. Sad to hear about 36. It was frightful. And you can see how easy it happens. Yeah, sure. Yeah. And do they think it was because of squalls or just icy roads? I think a little of both. I don't think they ever came out and said, but I know when I went through, there was enough powdery snow on the. Yeah. That was part of it. And you couldn't see the car ahead of you. And you're going too fast. We're just going, what you think is fine speed, but aren't aware that you need to slow every time. It just, well, if you're under a squall, I was driving down route 12. And people were joking a couple of weeks ago about, oh my God, I got a weather report. It said squall. No, they were outages. They were. And I came across one that could have been more than 50 yards long. But it was on route 12 in Northfield. Just like this going on. It was like, oh, it didn't mean to hold up conversation, but I did want to say it truly made a difference. I'm glad you're going through. Yep. Yeah, I forget how many hours it took me to get home, but it was a while ago. It was visible. There was the right choice, but that leads us to just this work today. Yep. So if the clerk is ready, could we map. Long enough. They're married. Yes. And I just want to verify that as we're doing this, because we don't have our ledge council, we did clarify that. The burial ground language is not part of this, even though it's still a numerous page bill for other. Little edits. We did not change that. Maybe they weren't actually just entered. Wait. Oh, okay. We still long enough for her to. I think the goal of deleting any references to that was. We felt that that was a much more subset issue. Not to be covered just enough. And I'll take very easily. And I appreciate that. Welcome, Katie. How are you? Look at you. You're the bill. Well, how are you? Good. Well, we won't keep you long. We were just about to. We were just about to entertain a motion on 244. And I guess the question was. Right. As you were coming in was just a clarification from representative Murphy that this doesn't. This finished bill that we have does not deal with the burial ground changes that we, that was in the original bill is introduced at all. Correct. Yep. It doesn't change with the burial ground changes. I would know for you that in the past hour, I did just get an email from the health department with a concern. Would you like to hear that concern? I, I emailed it to you, Mr. Can you say it? Yes. Bad news. Right. Okay. There is a concern on page seven line 17. Do you want me to pull up the draft or do you have it in front of you? I know it, but I have it. That would be helpful. Can you make any. So all right. Are you scheduled to head out? Do you have to go to commerce? At four o'clock. So I have plenty of time. Three years. Three years. Seven. Seven. Seven. So. Language in question. This. Subdivision C1 basically says, that the. Office of the medical examiner is to, um, hold on to, roommate's for three years. amount of remains when a body is processed with natural organic reduction that this would be a capacity problem as opposed to the cremated remains don't take that same storage capacity. So if you chose to address it, I could probably pretty quickly just amend this strike all what I would do is get rid of the language or processed so that a funeral director or disposition facility operator if they've cremated remains. So it takes away the option of processing with natural organic reduction and I'd also get rid of as applicable. I guess the flip side of the argument is maybe if there was knowledge that there was nobody to take the remains the option wouldn't be used to use natural organic reduction but cremation would be the option so they don't run into that problem. I'm sorry if you could restate Katie their concern was to their capacity or to the disposition facilities capacity because it's the facility or the funeral director who have to retain and we did have discussion on that we took testimony on that from those. You did okay. Let me look at this more closely. I think their concern was the office of the medical examiner. So let's see if the disposition is determined by A9 which is the funeral director or disposition facility operator with custody of the body after testing and writing good faith so they could make the decision. So if then the funeral director the disposition facility operator has to hold on to their remains. Right. And I hear what you're saying that you took testimony on that. The email from the health department said they were concerned that the office of the medical examiner had to hold on to those. Hold on let me toggle between two screens here. I wonder if it's if they don't accept it for disposition but it would be the body. I mean the medical examiner would have the body. They wouldn't have the remains. Right. And that is the testimony that we received from the advocates was that when a body is brought to an organic reduction facility that there is a contract. Right. That determines the disposition of the remains. Yes. Yeah. No one would get, no one would be, no one would be composted if they were indigent or if they were unknown or so it wouldn't be a situation where this comes into play where where this may come into play then we also took testimony from the learnholder. There were concerns. People just don't come back. Yep. You know, Lisa. Farther on page 9 D1. Is there one for talks about the office medical examiner, the medical examiner. So it says they make contact with a female director or disposition disorder operator to cremate or process the remains of the decedent as a workable. So maybe that's where we remove this option that it it isn't one that the office of chief medical examiner can contract. That might be the one that we want to remove. They do have this where if they contracted they then be stuck with our couples. Yeah. So that might be one to remove. That might be the one we want to edit. That makes more sense than the other one. It does make more sense than the section that he indicated for me. I would say that the same thing sort of applies here in D1 that the office of chief medical examiner has the choice. So you could take away the option that they just have to use cremation and they don't have the option to use NOR because it's not practical or you know you could leave it and then they have the choice and if they don't have the capacity to use it then they don't have to choose it. It says they may contract. So I think it could probably be left as is and I think if you feel strongly that that's going to be problematic it could be changed also. Oh and later on I'm sorry to interrupt it says something about the remains shall be returned to the office of the chief medical examiner who shall then retain the remains for three years. So that's on line 17 page 9. So maybe that's what I think. I think you're right. Line 17. Yep. I think we're looking at the wrong page. Is that just for those that are these paid for by the Department of Children and Families though in that section? No because that's section A. Section B talks about the decedent has not arranged and paid for then the Department of Health shall pay expenses to the funeral home. Oh that is talking about up to the maximum. It's still talking about DCF. Right. I think it needs a little winnowing because I think we don't want to leave those options. It does say cremation or. Right. So it doesn't mean that if the Department of Children so I think the or is. But we're putting all that in so I just feel like maybe we just don't put it there. I mean if the whole goal is just to give someone the opportunity to choose this for their end times then it's not necessary to put it into every instance where you have other options. Particularly if there are no options. Exactly. Hey or pick up. Yeah I think that we need to I'm sorry that it came so I think we poked the health department several times and we'd really like to hear from you and they felt they could deal with it in rules so I am sorry it's so late that we're hearing but I just feel that there is a little bit of culling that we need to give Katie time to just really assess where those spots might be that it isn't practical to have this be an option that it isn't even feasible for it to be an option because of the ramification that your the remains are picked up and you're sitting there with three quarters of a cubic yard of remains. I've got a question for Katie. I'm maybe misunderstanding of the circumstances in which the office is the chief medical examiner would even be involved. Would that only be when the cause of death is questionable no no I think there's a get involved um well we don't have all of the list of a subsection a but it gives a hierarchy of how decision making is made um and I and so I believe it comes into play when we look at that list so I'd have to switch documents and pull up the existing statute because we don't have the whole piece of law shown here um so let me stop sharing so I can pull that out. The issue is an issue for ordinary death with the chief and if the office of the chief medical examiner involved in that. I think always when it's a child and okay there's only one if a DCF case. No any child any child passes away I believe the CMO has to get involved but I could be wrong I'd rather have Katie. Okay that's possible and I would understand you know if the cause of death is questionable and they want to make sure they know why the person passed away but I think as written it's fine because there's an or and why would the office of chief medical examiner choose national organic reduction if they knew they could get stuck with a cubic yard of soil. No I'm not comfortable with that I'm sorry. I'd like Katie's opinion about the before. So I just wanted to answer the question that was just asked about what role does the chief medical examiner play so as I was saying in the subsection A of that section which your bill sort of has the ellipses so it doesn't show everything but it's a list of the order in which somebody has the right to make a decision about the final disposition of a body so the last item on that list is A10 the office of the chief medical examiner when it has jurisdiction and custody of the body after testing and writing good faith effort has been made to contact the individuals described in subdivisions A1 through 8 so everybody else the chief medical examiner has tried to contact everybody else on that list to make a decision nobody has been the appropriate person or has stepped forward then the chief medical examiner gets to make the decision as to the final disposition of the body and A10 if it gets to that point and so then we are looking at B where are we D D 1 if the disposition of the remains of a decedent is determined under A10 so the chief medical examiner is making that determination they may contract with the funeral director or the the new disposition facility to cremate the remains so it looks like the office of the chief medical examiner has the choice of how they want to dispose of the remains in that particular circumstance so if they chose to not use NOR because the of the capacity issue for storing the remains they could make that choice as the language is written now or if you don't want them to have that choice if it is you know obviously going to be a storage problem and they shouldn't have that option and they're operating fine as is with cremation and contacting a funeral director for services then you could remove that option and that would sort of be off the table so they never have to possibly use NOR and have the capacity issue so they're the ones who choose choose as if I were to choose the disposition of family members remains there they become they become the one who chooses between burial cremation or or in this case processing decomposition or composting they could again we don't have an industry here so you don't have anyone to ask the the advocate for this process testified that they work with organizations and talk about war working under these circumstances about what happens with under these circumstances I mean we can keep spinning our wheels and say well who wants to stop the chief medical examiner from contracting with the composting place and donating the donating this the compost the soil when when it's completed it's processing so I just leave it there and just say well what you know what's the pleasure here in terms of in terms of moving forward with this I don't want to spend too much time chasing chasing this if we need to take another whatever whether it's an hour or two or a day then this sort of make that decision hi have you asking for any question yes please I kind of think that if we're offering Germaners this option that it should be consistent that it's offered and so the or is it's comfortable for me because it doesn't eliminate the possibility but doesn't make the office choose this method but I just think if the methods are offered they should be offered so advocating for no language change the language change for me I'm still a little bit unclear but it feels as if what it's saying within the full standing language as well as what we're changing that if it is the choice of the chief medical examiner that they have to hold those remains for three years for them to be claimed if it's being done for someone who is an indigent so they can't donate them they literally have to hold them for those three years no matter if they choose that if they choose that off so I just I'm not comfortable putting it out there as a choice where there isn't a full understanding that it's really not a choice unless we have built a space where these cubic yards can be maintained for three years as separate entities in case someone comes forward to claim it the way a jar of cremains can be put on a shelf for three years it I I just think I would hope that maybe we could give Katie enough time to to disappear for a bit and come back and see if she could laser focus cut out the little bit that gives the choice to the chief medical examiner because I think that's the block that that becomes the issue represent Parsons than I can just kind of go that I guess I'm perfectly fine with the idea that they have the option but the idea that they have to keep it for the three years as the separate part of what they have to do if they didn't have if they weren't obligated to keep it for those three years in waiting I'd be perfectly fine with them choosing that but the idea that that's also attached to it is kind of a hurdle for me so I think it I think it should be changed yeah represent a pack I just want to point out that in other years past when we've discussed burials we have learned that there are a number of unclaimed bodies throughout the state of Vermont and it's a greater number than we ever thought so I think I remember us being a little bit surprised at how many actually exist so I think I would like to agree with represent Murphy on this the order at this point if it's going to be if they're going to be unclaimed I don't think that there should be a choice so what would that require again go back to the beginning of the of the we started off by looking at that they have not been the right section but the idea here is what's the what's the fix if we're going to not have a choice right what is the fix is it one section five sections no if you're not going to have the choice then you're amending d1 on page nine to just maintain the status quo so you well we would still want to call it a disposition facility because we're changing that throughout so you would just not include the words or process and we would remove as applicable to how many sections just one or two as one subdivision so now I'm confused okay okay so if the chief medical examiner chooses to cremate the remains and the current statute whether the remains are cremated or not people even in a buried if they're unclaimed they have to hold on to the remains for at least three years before disposal now are we saying that doesn't apply at all are we saying it doesn't apply only in the case of natural organic reduction it would be only in the case it's it would be returning that section to what now exists which just means that as if natural organic reduction didn't exist so they only so that under these circumstances the that they must cremate I mean it's it's I think that's a standard operating procedure that's what we're reading here and that but that cremation may not include won't include natural organic reduction because of the fear of storage for three years so we so basically we would not be changing the statute in this one instance to accommodate natural or organic reduction we leave the statute as it stands the original statute that's that's with the exception of changing the name so the concept of a chief medical examiner having to choose to read you know having to having to be responsible for disposing remains would only be using conventional or contemporary cremation services and therefore the storage for three years would be inert and not a guardianship well sometimes it's a casket I don't I think this is about cremation I just wonder Katie if we also have to look at the cremation or natural organic reduction in 2a and b on stage 9 lines 8 and 13 where it's arranged by the Department of Health whether that as well gets incorporated into that or whether that's still part of what you were speaking to yeah I was looking at that too um I think it's probably a policy decision um it doesn't look if you look at d3 um is it d3 yeah where they have to hold the remains for three years it right it doesn't look like it looks like that only applies to the office of the chief medical examiner I have to take a closer look at 33 vsa 2301 to see if there's a tie in there between dcf and somehow the remains being held by the office of the chief medical examiner thank you okay so Katie what is your afternoon like let's see I have to be in another committee to mark up a bill at uh two to three and then you're on the floor um and then I have an obligation what four oh no you're not on the floor at three today I'm sorry I have an obligation from three to four so I probably wouldn't sit down to draft it until four o'clock at best okay um tomorrow first thing you did nine yeah just better we just make it 8 30 let's get this why go on and off don't like that's what I'm tired of um may I ask why not for 30 if um if it's well Katie if you're going to take a look at it for a couple minutes and see if it's any more if it's if it's more extensive than just the one change if it's just the one change well let us know if it's just the one change can you please make it and have it ready for us at four o'clock and then um we'll be here so um that would be that would be the best case scenario okay I'll do my best um just text Kira or me let us know if there's a problem um with that okay okay gonna be before 30 anyway so okay I'll let you know if I can get it done thank you so much thank you yeah no problem thank you bye thank you Katie I can't say anything more about that though but I'm sorry I really am sorry that they thought that they could just wait till rules to look at it for us and that was the comment it was repeated to us yep well we're gonna get it right that's the thing I don't think it's it's cross over we just need to tell me the I'm gonna say this but I'm getting it to the floor and then I mean you come up it's in good shape if we don't vote on it today I think we should wait until Thursday to vote on it because of just this requirements okay I actually didn't hear what you said you said if we don't pass it out today then you're gonna have to do it without your glasses on the floor I think we're dealing with a harassment bill next just in case anyone surveys this issue later as we're talking about harassing thank you rubber if we don't pass it if we're not if we can't get it out today I may just hold that off until Thursday morning and just because it's cross over week and maybe we don't want to spend time on the floor with this bill and we'll just like next week we'll do it by the evening we'll see I think we're gonna get it done today um all right Damien hey we're here on um 3 29 it was another bill that didn't we didn't really have time to follow up on at all on Friday last and so Damien had provided us with a document that had um I had asked a lot of the material that we had talked about as being questionable or having questions about and then um I just asked him to provide us with an updated draft that we then emailed to some of the people who have testified and I see that board Yang is here and from the Human Rights Commission and Austin Davis is here at the Lake Shetland Chamber Jordan Gianconia is the building you may try to from BDSR you may try to join us but we shared the draft this draft that we're Damien's going to show us right now and what I did with this was take into account a lot of the comments that we made that people were uncomfortable with and so this is my interpretation of all of those comments based on the conversations that we had so I'll take responsibility if I got if I missed something or if I got something off but I wanted to present this because again I think we're done I don't think we've done until we vote on it but I just think now it's time to just narrow down and present the bill with again taking into account the comments we've heard from different people so and I just heard after dating does this does this walk through if anybody who's here wanted to make a comment about the bill or suggestions just like we're just like when we had 96 we'll have people in the room and open it up for conversation and see if we can see if we can bring it home representing hangover quick question farther along in the bill is are the statutes for schools yeah and did you ever get share web's input on this bill as you yeah so so you'll see when we get through it that we deleted the section we I reached out the share web I also reached out to the school board association principal association what the education calls the these and they their first response yesterday was we could talk to you about this bill on the 14th and I asked them to share thoughts on this bill before that and while they were sort of disappointed that we didn't call them earlier it was like well this was part of an amendment that was offered in mid-february and you know there was no january on this information but I just it is too complex day of course as in the same manner and in the same vein that you were talking about the difficulty of changing language and you know within the school systems is how that works that they presented a they presented a letter I don't know and so but even before getting that you know part of the thinking on this was it was identified as a fairly complex issue and so this proposal deletes that from this version of the bill if the advocates want to bring it forward they can bring it forward in the senate on education or not and then we'll deal with it as but it's the safest thing to do is to is to delete it because it's clear that it would require quite a bit of conversation with with the interested parties okay for the record daniel lennard legislative council this is the most path this room has been I saw your son for the first time in person today for the first time in two years oh my gosh getting the whole family yes yeah I used to seeing everyone over over video uh so as the chair mentioned this is uh this latest draft before the break I sent the committee a highlighted draft which is on today's web page as draft 1.1 this is draft 2.1 which essentially incorporates the removal of things that were identified as uh being uh controversial or or non-starters in the bill that needed to come out for cross over week so um let me share my screen here and I'll walk you through the bill um great thank you so much whoops did I do that okay except on youtube so the first section of the bill here there's no changes on the the first page going on to the second page it's not until we get down to subsection i uh where we get to a change in the language uh so looking at subsection i what we deleted there is the internal grievance language so we're taking out the language there that an employee's decision not to pursue an internal grievance uh would not be determinative in any claim that an employer uh violated a provision of this section against discrimination so what we've left is an employee shall not be required to demonstrate the existence of another employer individual to whom the employee's treatment can be compared in determining whether a violation of the provisions of this section occurred are there questions on that change okay uh in j so that's the next subsection here we have struck out the language saying that the general assembly finds that claims of unlawful discrimination are rarely appropriate for summary judgment so that was taken out uh and so what that leaves us with is notwithstanding uh judicial precedent to the contrary the provision shall be construed liberally to accomplish the section's remedial purpose and any exceptions and exemptions shall be construed narrowly in order to maximize the deterrence of discriminatory behavior and then on the next i just want to put forward that i do appreciate the changes so far but that that first um first j is something that i still have concerns with i think it's a little bit of us telling judiciary telling the judicial system how to behave rather than really saying what we believe is harassment and and i don't think it's appropriate from our committee okay um this is the notwithstanding just provisions of this section shall be concerned liberally that language i think is us telling a judge how to look at something and i think we're we're writing the law that is to be looked at we're not judiciary and we're not okay i was just going to ask for like clarification on what exactly how do you even guide that right like to be considered as you know liberally i mean that's kind of so the the judge still determines what that means this is that language so line 17 is something that is out of the ordinary for us but it's not okay so i'm going to back up here and i'm going to try to phrase everything very carefully because i don't have a position on this language and i'm not here to advocate for or against the language in the bill so line 17 is a line where saying it explicitly like that notwithstanding any precedent to the contrary is not something we do very frequently that said legislatures do from time to time pass a law that overrides a judicial decision because they disagree with the judicial decision so that that's the first piece there so that language is a little unusual the making a change because the legislature doesn't agree with the way the judiciary has been going on an issue is not necessarily unusual i wouldn't say it's it's normal or frequent but it's something that legislatures do from time to time when they believe an adjustment needs to be made typically that gets done through a clarification of a term the elimination of something that's problematic change the language something like that the lines 18 to 21 this is actually fairly common language to the extent that there's about there's several dozen instances of language like this in the dsa understanding that the dsa is there's thousands of sections but there are several dozen instances of this in the vermont statutes and this is basically saying we'd like you to construe this liberally this is a remedial statute we want you to construe exceptions and exemptions narrowly by itself this might not have much effect on judicial rulings it could it depends on the judge with the language in line 17 i think what you're saying here and the way a judge would read this is they're saying look back at the judicial precedent and if it's not construing this section liberally or narrowly construing the exceptions then you need to revisit that and look at it in light of this new language so and that i think is the the effect here that that is is probably that's the policy issue to discuss is are you does the committee want to ask the judiciary to revisit instances when there's an exception that may not have been construed as narrowly as possible and so forth so that's that is that piece there the other piece here is of course the language here harassment and discrimination need not be severe or pervasive so this is again notwithstanding any judicial precedent to the contrary harassment and discrimination need not be severe or pervasive so there's really i would read those as two separate clauses and particularly within the first clause this with line 17 you're saying if there's a precedent that construed an exception look at it to make sure it's being construed narrowly in order to maximize deterrence or that it's being construed if it's another clause is it being construed liberally to accomplish the remedial purposes of the chapter or should you revisit that and construe it more liberally so it still leaves this up to judicial discretion to say we think this is narrow enough but this could be a subject for litigation or or for argument in a case that comes up at some point in the future so i just i think in its entirety the the j1 and 2 just i had spoken before i don't think i'm just bringing this up fresh together and and i think that this the the j2 gives that voice of what we have been saying in these corrections that it may not be severe or pervasive to and i think this is just feeling again more than i'm comfortable saying i guess it's i'm taking it further let's note it okay any other questions or she's there okay so the next change is here going down the so there are some issues or some language in the brass definition that were highlighted for discussion but i wasn't asked to make changes to them so i'm not going to touch on them right now the next is the legislative intent in the fair housing and public public accommodations law so it used to say legislative findings and intent i've taken out the findings because we've removed the language that says the general assembly finds that summary judgment is generally not appropriate uh the section highlighting here or subsection highlighting is just because we didn't need to renumber there we took out a subsection and then again we're back to the language that representative murphy and i were just discussing not with standing any judicial precedent to the contrary the provisions of this chapter shall be construed liberally to accomplish its remedial purpose and any exceptions and exemptions shall be construed narrowly so i might just have to say sir right so representative blomie yeah i am uh so um one of our witnesses Karen Stackpole said that that that it actually did not object to that language and see saw it as helpful to a court um i don't know if that's it you know and i had my intern actually um search statute for that very language to just see how many times it came up and in what context and it's everything from stuff of um rather like affecting the national card to um education law to i mean it it seems to appear in a number of places um which is why i mean it was something i wasn't familiar with so um uh hearing that from from attorney Stackpole helped and it's it's just to to clarify that statement there the the language from here lines 16 to 19 is the language that appears commonly in the vsa um i am not sure how often language not saying notwithstanding any precedent to the contrary appears so those just uh to um clarify that a little bit there but the the language from 16 to 19 is fairly common um um let's see oh well uh it's severe and pervasive severe or pervasive that some courts were now saying it was both right and we're trying to clarify that now that it's neither or right neither severe or pervasive but wouldn't this help because if the court cases have tightened it and we're ruling forces during pervasive and this language would actually help clarify what our intent is and to say to the judiciary you can't really that's how i i'm reading so i i see it um and karen it looks like you're having a reaction to uh the collective nice yes so i have a i have to have a better quote for face is what you're saying we know that's been called a zoom face now so yeah do you have a thought on do you have a thought on this on this language yeah i mean i guess all i would say is that i don't i don't have any general and and and i think that um representative bloomley you know we had definitely had some conversation about this i don't have any basic problem with the expressed intent meaning this is what we intend but i don't agree with the last statement that you know what that means is that it can be interpreted different than the actual words in the statute itself so if the courts then you know the courts are going to look at the words on the page and they're going to interpret from the words on the page but if the if there's variants in the language between you know sections and i didn't see the severe pervasive language in that particular section then i just don't know that it works exactly the same way it was just described my concern was just how it was just described in terms of how courts would look at it court for courts to have some guidance from the legislature saying hey look we want you to do this we want you to take the words that we've put in this statute and uh and apply them liberally you're giving some expression of your intent and expression of intent is looked at by courts sometimes when they are determining a matter what matters to them more frankly is you know the facts and the words in the actual statute but if there is a lack of clarity in the words they will go back to look at the intent for the purposes of defining it so that's my only that was my only thought thank you damian are we are we if you get to all the changes let's take a quick look here so uh the other changes here uh is just the elimination of the title 16 language and then renumbering the remaining sections so those are the other changes in this draft and i just i did a quick search there is no section i was able to find in the vsa that says notwithstanding judicial precedent the contrary uh there was there has been legislative language that says this is just a change in terminology not intended to overrule judicial precedent but i couldn't find the language in a west law search that doesn't mean we haven't done it before in session law somewhere but within the vermont statutes that show up in a west law search that language doesn't appear the language between lines 16 and 19 appears roughly a hundred times but i haven't checked each instance to confirm that it's actually in the statutory language but that's it for me but can you take the notwithstanding line out and have the provision under it still be stand on its own legs yeah that could stand on its own lengths um i think you know as as uh karen was just alluding to here the judges are going to continue reading the words on the page so it may or may not actually affect the way they rule because they're constrained by the language of the statute um and it is already a remedial statute so in many instances they're already going to be you're construing it liberally to accomplish the intent or the apparent intent of the legislature um the the i think that language applies a little bit more uh that notwithstanding judicial precedent has a again i'm trying to be very careful with how i word things here so i don't appear to be putting my finger on the scale um the the notwithstanding language with the severe or pervasive where there is a clear severe or pervasive precedent uh there i think it makes a lot of sense to include the notwithstanding judicial precedent to the contrary even though saying it need not be severe or pervasive would essentially express that but it you know is being extremely clear that your intent would be to override that if you include that language and move forward um with this other other language i'm not sure the extent to which and maybe karen has more thoughts the extent to which it might influence any existing sort of rulings on uh you know in in employment discrimination law whether saying we'd like you to construe this liberally it's through exceptions narrowly would affect existing precedent um i'm not sure i'm not sure if it would or not so um and i think the point well actually karen can i ask you a question sure the point of clarifying this in the way that it's been clarified is to make discrimination claims or the process somewhat more accessible to people i mean it is is that i mean that's i know this you didn't sponsor this bill you you testified on this bill you had some very cogent thoughts on it and and just this this language does what for people who are trying to bring a discrimination case forward in european so i think this particular language that you're just talking about that last that last segment i'm not sure tons and and that very first part of it that isn't commonly in statutes i would agree that's not commonly in statutes and it's probably something i wouldn't um i wouldn't vote for on that i'd be interested to what to see what judiciary committee had to to think about that this interaction between the legislature and the courts you know the courts have a body of law that they're supposed to be dealing with which is precedent right and so it's how they take a statute and then they apply it to the specific facts of that particular case that's not changed really in in this except you're essentially trying to force the court's hand by saying forget about all your prior precedent we want you to just deal with this um for for my money i i don't think that's uh necessarily the the best piece of this legislation because i think the courts work in tandem i think to say this is our broad intent we would like this to be construed as broadly as you can with regard to the words again that's language that appears in a lot of statutes that makes sense right but to go back and say except notwithstanding any precedent i think you're being heavy-handed no offense with regard to the courts in terms of how the courts have to deal with their precedent too they're going to deal with changes in your law they're going to deal with the elements that change but i i'm not a fan of that particular front part and there's a reason it's not commonly found in statutes i just wanted to i as borer gang is on um as well i just wanted to get um her take on this hi borer hello how are you thank you good thank you for joining us again and as um as really a primary voice on this bill i i think you might have some thoughts on what we've been discussing are you like to share them yeah i um and um thank you karen too um it's nice to see you i just want to say in general that we that the anti-discrimination laws are remedial statutes and and and as damien said that we remedial statutes are enacted to fix a problem to fix a wrong and so when we enacted our anti-discrimination laws we already made a decision these are statutes that we are enacting to fix something that we see as a problem so courts already construed these as liberally that's already sort of the way that courts review it so you're not really heavy-handed because you're really just codifying what courts already do with remedial statutes also this if you if you pass this bill you are in effect creating kind of you're saying that the severe pervasive standard that has been used for harassment claims is now going to be different that we're looking at a different set of standard for how we look at harassment so it makes sense then to include that language that says notwithstanding precedent because we are actually moving forward and like sort of in in many ways saying that that precedent was too hard and difficult we are now setting the standard for the way that we look at harassment it makes sense to include that um so that's sort of my position about it i i i don't think that it is should be highly contested um yeah i'm happy to answer any questions representative collecting you know a good representative trial so were we seeing a degree of ambiguity in the arguments that have been in court surrounding this language i mean we're we're courts having a difficult time um coming in on either side's argument as a result of some ambiguity in in severe and pervasive so where that intent language can be helpful is when the courts are not sure when they're reading the plain language of the statue they're not sure which way to go they try to read and interpret the plain language of the statue to effectuate the purpose the intent so they would go back to this intent language and go the legislature intended for us to review the statue liberally and that might lean in favor of the individual who's claiming that there's a violation here that doesn't mean that they win that just means that that whatever interpret if there's confusion in the interpretation a court is going to look at the intent language right but again i think karen said it well is that it doesn't contradict the plain language of the statue they are going to look at the plain language of the statue and if it's clear they follow that only when there's ambiguity or they need to figure out how they should interpret it if there's confusion they go to the intent language to see yeah i think that's true and i think borough also makes the point that you are intentionally changing the standard here in this bill you know by by saying it need not be severe or pervasive so that that is a significant change that you are making already in the standard that exists which is the heart of the bill so the policy change the policy change for us is are we willing to make that change that's really you know that's representative by wrong my question is actually a little bit previous to that it was highlighted on the copy the 1.1 for committee discussion um was it c6 conduct occurred outside of the workplace mm-hmm was highlighted on this but it's not highlighted in here so when i asked Damian to um when i asked Damian to go through the document i asked to keep that in because i don't think we had i wanted to be able to ask these folks about that stand because we heard we heard that the standard is much part of all and and there there was some conversation committee of that it should be deleted or that it's irrelevant or what have you yeah um but i wanted i wanted to keep it in for this conversation where i'm pulling up the language yeah that's just that's that's one of the big boxes for me to check is that one so let's see if i can go you're almost there it's line one on the page you're on correct yeah line one five yeah you just have to scroll us down a little further Damian oh by the way yeah i'm sorry we were talking about all right that was uh i'm sure did she spots at one point i don't know if they still did it's only in one i think now it's in two spots it's in both the public accommodation they go there you go top of that page so let me see it can we hear from um there we go trying to get you more of the text so um so well we have um for a parent here um if you could just take a look at line one at the very bottom of the screen here we had a lengthy conversation and disagreement over whether or not this language was either relevant or was um necessary or um or should be to delete and we um again it was marked in an earlier draft as as a conversation point so we're going to take some time here and just and converse about it and represent it Murphy well i just wanted to say that i i had raised concerns about this and i don't think my concerns were necessarily connected to it being relevant or necessary it was just whether it is proper in my mind to assign an actionable um case however we word it just something that happens outside of workplace to have a workplace owner be responsible for something that occurs outside the workplace that that was the piece it wasn't that i just want to make sure it's described as i had seen it that i if i were an employee employer and my employee attacked another employee employee out in a parking lot after an event or something that had nothing to do with the workplace i don't feel that that should come back on me as the employer but it could and i guess that's a question could it is this saying that if two employees get into it somewhere and and and can i be held responsible for that before we jump the big thing for me with this is i think it's just it's vague words like outside of the workplace and employer has no control over the really has no control over the behavior of their employees when they're off the clock and off-premise so you know if so if this occurred while they were like off-site outside of the work environment but engaged in a work capacity like an event or something off-site totally different story because then they are engaged as they like surrogate for the factory or your entity that's so good now if the conduct when they're outside of the workplace is so extreme that it then creates an on-site issue between the two that's the circle back then it's an on-site but but you just to to say that you have to be reliable for the conduct of somebody's behavior outside of work when they're not on the clock or acting on behalf of the is this i'm not comfortable so just just to provide read-in in case or lead-in language in case Karen Jones have the full document in front of them the lead-in to all of these subdivisions is conduct may constitute harassment regardless of weather and so yeah i can i can just tell you that the current state of the law is that if something happens outside of the workplace but has an impact inside the workplace basically what you just described it can be something that an employer is liable for if they're aware of it and they don't do anything stop it i'll just give you the easiest example as people texting each other you know after hours using their own phones if i'm sending people you know naked pictures in an unwelcome sort of way guess what that may be upsetting to them and it's going to have an impact likely of us in the workplace or it could let me put it to you that way so if it can have and does have an impact in the workplace an employer will have to deal with it in one way shape or form and the employer a is a best practice but b is a matter of law if i'm aware that that out of office behavior is occurring and it has a negative impact in the workplace it's something i have to deal with and it's something for which i can be liable if i refuse to deal with or do you i've assumed born i agree but i'm i welcome her thoughts as well we do and i think what i'm hearing almost as the underlying concern from some committee members is the concern around notice this language does not get rid of the fact that an employer still has to be on notice when co-workers harass each other so the fact that we have this language here doesn't mean that an employer is liable when they don't know what's going on they still have to be on notice an employee would still have to say i notified the employer i followed the rules i i did so forth right so like that is what i'm hearing as the underlying problem about trying to capture things outside the workplace but as karen mentioned the law already covers things that occur outside the workplace so all this language is doing is codifying existing law and um i did listen to some of the discussion that occurred around this and uh representative kalaki did a really great job of talking about how often the case is is that harassment is occurring outside of the workplace through text messages through emails um and and it's not on you like if you think about um harvey weinstein who is what we see as the the worst perpetrator of sexual harassment all of his actions occurred outside the workplace they were in hotel rooms if not at the studio and so it's not unusual for someone who is a harasser to in fact use emails and other circumstances to harass people to pick them up at the airport to do all of those things and it's not actually inside the four walls of a building so i i would just say employers are not held responsible for co-worker harassment on co-worker unless they have notice this does nothing to impact the fact that the court would still require notice okay this is a question for you damien as i read this section i um this puts into law what is essentially in case law um and you know giving clear it clarifies guidance to the courts um in terms of how you know how the courts can view harassment you know what would constitute harassment yeah my understanding is that this is essentially repeating the the standards that are set out in case law um it's it's i think a good way to think of the section is that the it's defining what harassment is based on uh based around existing case law um and it and i i would defer to caron or bore to contradict me if i've misstated that um since they are both much more experienced practitioners in this area um but the the key is that it starts off with its its unwelcome conduct that interferes with the employee's work or creates a work environment that is intimidating hostile or offensive and then in determining whether it constitutes harassment it's going through a b and c is this it may constitute harassment regardless of whether and it then goes through these so first it does have to relate back to the actual work environment so simply the fact that you engage in inappropriate behavior outside of work isn't necessarily action isn't necessarily unlawful employment discrimination or harassment unless it's interfering with the work or creating a hostile working environment and then bore just described the standards for employer liability which gets back to the language that we deleted earlier which would have allowed into uh which would have uh impacted the employer's ability to say i wasn't aware that this was occurring i wasn't on notice so there was nothing i could do about it so i i shouldn't be held liable because i wasn't even on notice that's heard so i see caron has popped back in so um mr chair i would yield to her just in case there's a correction uh that she'd like to make go ahead caron sorry we can't see you while we're screened you're sure you'll screen but but go ahead you'll come up on our little thumbnail here there you are no no i completely i i agree with what was just explained about that particular piece i think all it does is codify what currently exists and i think you read it exactly right it's you know this is this doesn't say that every action outside of work is something that somebody can you know bring a cause of action under the discrimination statute about it's something that may happen outside of the office that may have an impact in the workplace i think i think you did you think you said it right it represented persons um i think i'll just um i don't like having the language in there and it seems like it's kind of a consensus amongst others that this language doesn't really do anything with the way that it's already dealt with meaning that if we take it out of there we are also not doing anything just to change it if the language in there does nothing or and where they're gone but also that's not every center party i i appreciate both karen and board giving giving us their expertise as well as damien on all of this and i had not made all the links back to the first sift of section 16 and then everything being out of that so i appreciate the the tailing back when we see things in their isolation they can look more imposing and i would just say that that codifying something that currently is done actually does have value that that that there is um there is reason to put something in even if it feels like it doesn't make a shift it can just give a thumb approval for something that we are doing so i i appreciate being helped to a comfort level on that but i still really don't like the other section that i've been yammering about a lot today so the section that representative murphy is yammering out which i can't find right now i'm looking at for it but is this bill going to go to judiciary because i've been i think saying that since we started looking at it i just feel like this is so out of my comfort zone um that particular section that representative murphy is talking about i just can't wrap my head around it and maybe it's just me but my conversations with judiciary is that they'd be they would welcome a drive by when we were ready to drive something by that's good thank you representative murphy i i will go back to page five section c etc etc the notwithstanding construed liberally paragraph that does occur twice and i have absolutely no comfort level with it i i would like to see it removed and if it stays i'm not sure i can vote for this at all but i certainly need to see this both fully to judiciary not just the chair of judiciary giving a thumbs up on it i i need to see that committee truly have a moment to take testimony on it so i i don't know what that does to the still in our week that ran well we have to reach out to judiciary and see if they have time i don't know that there's time for them to own it right um but if they have time for a for a walk through and a drive by and an understanding of what the concerns are um you know we could try to arrange that and um i don't know if you want to you know that's sufficient for you but we have to find out what their schedule is well i just i i feel like we're we're not hearing i i don't understand why we need to leave it in i guess i i'm not sure where i hear at this committee that this is language that we feel we fully require and and um which part of the whole thing or or the notwithstanding phrase the piece that's all in the law already or the line that both of them in the in the in the language that were changing because we're adding it to this piece of law so it's not in this section of law it's one that's considered in many areas of law and it sounds like judiciary those those in the judging seats use for their um actions so i i just don't see the the dedication to it being in this bill i think that as you said earlier the the germ of this bill the goal of this bill is truly the the heart of the bill is the harassment and discrimination need not be severe or pervasive or pervasive to constitute the violation of this section i think we're doing several pieces in here that that really do move along we want people not to be harassed and and i just think this piece isn't what i can support and i would like to support this bill could could i i i heard chair ask something else so i i'll ask my virgin are you asking for the one line notwithstanding to say that the president's contract being taken out and the rest stay because that rest isn't the whole the whole paragraph in both instances that appears in this bill because i believe i've heard witnesses speak to the fact that it is practice and i don't feel this is something we need to codify in that manner yes stay me in your um as legislative counsel if if that paragraph was taken out there's a change in any of the intent of the bill so uh getting back to the discrimination section um the employment discrimination section um it's it's a little bit tough for me to speak to intent of the bill since uh i am i'm not the representative for presenting the bill um but so there there are sort of three different pieces here the the first is taking out if we're just looking at subdivision one i don't know that that has a huge effect on the bill that's page five or what yeah so we are on page page two so i'm i'm just in the employment discrimination law this language appears again yes later in the bill but so just looking at subdivision one here uh you know i don't think this has a huge effect because courts do already construe it liberally um that said this provides as bohr mentioned guidance if they get to a point where there's something that they haven't made a determination on yet and they're trying to figure out what the intention of the legislature was this is the legislature saying it's our intent that you do this the second part of this is the notwithstanding any state or federal judicial precedent to the contrary leaving that language in with one indicates that there may be instances where the precedent should be not withstood and that that raises some uncertainty i can't say how the court's going to rule in every instance but that raises basically it raises the argument when a case goes to court that the prior exception was not narrow enough and it should be this exemption or exception should be construed more narrowly or the prior the prior precedent on this issue isn't construing the statute liberally enough therefore we should not withstand that and it should be construed more liberally i can't say how the court's going to rule on that but it does raise uncertainty um with with that the third piece of this is the severe or pervasive so i think you really probably need to look at this as do you want to say notwithstanding any state or federal judicial precedent to the contrary for each both paragraph one which is the construit liberally and paragraph two which is it need not be severe or pervasive and as you've heard severe taking away the severe pervasive standard would be a significant change in the standard so and as i understand it that's sort of the heart of the intent of this bill so taking that language out would would be a significant change in what the what my understanding of the intent of the supporters of this bill is the so and with that i think it's worth saying notwithstanding any precedent to the contrary because that is the precedent um so that i think those questions really should be considered in isolation um i mean you could say let's just take it all out obviously but they are they are different issues so there's first the you know liberal construction the second question is if you're going to keep liberal construction do you say notwithstanding judicial precedent or not and then the third is the severe or pervasive piece which i think uh really should be read with the notwithstanding language because even if that's not there that's what you're implying because we're we're saying that precedent shouldn't apply anymore and i appreciate that David because that's that was what i was trying to lay out is that it's that one number one paragraph that i'm striking that that's a j to go with two because you have heard that two has not been determined in that manner before so we would be asking it to be notwithstood the precedent Mr. Chair that's what i thought you were heading towards here is see you a lot go ahead uh Karen hold on a second yes for just for clarity and this is where i thought you were going with this when i started it's it's keep the j but notwithstanding lose the one yes keep the two yes i got you yeah okay Karen yeah i thank you for the opportunity to just speak on this i do think that there are enough pieces in here in this particular bill um and looking at the markup that change current law not the least of which is the severe or pervasive and that's an area on which reasonable people can disagree and more and i probably disagree on it but i bottom line is that i think these have significant impacts where the either the intent is to change it is to change that current law or the impact may be to significantly change that law and that's why my recommendation is that judiciary take a look at it so that they can figure out where does it go with regard to some of those other pieces that might that might impact it both on the public accommodation side and on the employment side that's just my my basic thought thank you for listening all right to me so where are we on this bill right now from what i understand from what i understand that at least in me you don't barbara murphy you don't care for the liberal the directive to the courts to narrow liberal in both circumstances and that's and your other concerns have been discussed and would i be misunderstanding that earlier on as we've taken testimony on this you said that judiciary has looked at the severe pervasive that is something that's no okay so we've still and i and i think i would use the term drive by i would use you know a walkthrough yeah any i'd like to see them vote on this i'm not sure you'll get a vote on it per se you might get a you might get a consensus or a straw poll on it well yeah that's a straw poll a straw poll time like i guess like yeah i just like i would just like to add like a baseline understanding how they supported this language through their mindset sure i can go hustle down there and try to schedule some time and see if your schedule is like and have them take a look at it so so could you barbara show me the pages and the line numbers that you're talking about so i understand clearly yeah do you have it up i have it up okay page two yes lines 18 to 21 would disappear you would keep 17 it yes okay good and it would tie to what would then just be a complete sentence including that goes to what now is number two on the next page so it would get renumbered because it wouldn't be j2 okay but it would i got it there okay and then the same occurs on page five um but in the sense that it just comes out completely because there's no one and two line 15 on page five 15 through 19 would just disappear 15 you would keep no there's nothing for it not to withstand it the only thing it's notwithstanding is that liberal um narrow language so there's no reason to keep the notwithstanding because there's nothing else that you're notwithstanding so that whole paragraph would be removed it doesn't have that follow-up of harassment and discrimination that may not be severe pervasive that's not part of that one so yeah that's in the definition in section four yeah severe pervasive is on that language appears in section 4501 right under that so it's it's a separate spot yeah lines 11 to 13 on page six and that does still maintain the notwithstanding next to that language so you're still getting that change that we're trying to have occur is still being said to be our intent well i what what i like about what i what i'm hearing is that we're we're really showing that neither severe pervasive is a change and we want to make sure that that's clear and that if that's yeah and that we're changing precedent where that has not been the case yes well i i would i would be good with all of it well so if i bring this to judiciary i guess the question on this language wants more this for my clarity is is this what you wanted opinion to judiciary on what is this what is this that language the request i'm making to have something removed yes is or no it's bill as a whole it's well it's yeah i think that it's the bill as a whole but also i i really am not comfortable with that language so even if they support it doesn't mean i'll be voting for the bill okay representative thank you yeah i i definitely have been wanting since we first saw this bill for them to weigh in on the intent of the bill to begin with the content of it and what's behind it and the change from um to this not having to be severe or pervasive um that the whole bill then damian just for um for purposes of a conversation with judiciary on this bill what i would um understanding that people are opposed to the language the the liberal versus um those two paragraphs um can you present can you provide a draft for us to share with them that will have that language bracketed right because i think it's worth discussing um i mean i think what i would want to hear from them on that language if we were to hear it is to hear how how it may be used in their work understanding why are people feel about the language in the first place and then i'll reach out to the committee or we can reach out to the committee and find if there's a time to discuss it looks like their schedule is more open on thursday they're doing the same thing we're doing which is holding up the next two days on their most important bill so i will reach out to them and find out what their situation is but i am hearing that other than those two paragraphs regardless of what the final vote may be on those two those two paragraphs there's there's i won't say there's a full committee consensus but that there's there's a desire to delete those two paragraphs but the rest of the language that we're talking about after the deletions and we've made um are sufficient at this point to make a decision up and i just want to share that i appreciate the deletions there has been substantial for anyone that has been following all along um if you took the side by side by side home with you there's several that i had marked who's like whoa that wasn't supposed to be there anymore and it's not in this version and so i do appreciate how much has been edited from so and i i you know this is the what this the way it goes you know week before crossover it feels like how did we not do this before but somehow you just don't until it's truly this is it well that's right you know but also as we learned today so far that have we voted on this bill last friday h244 yeah maybe question ourselves you know or you just see this one line and you just roll your eyes again and i mean we just have this experience with 517 where someone you know another committee is going to take a look at the bill with representative hang out because of where where did the list come from which which we do mention i mean these are things that come up but somehow we lose sight of them in the big picture when we think we're just sort of amorphously moving through things and they may have came come from the same place with people described in the different words you know and you know so um representative hang will go at four o'clock on that and and we'll see what happens with you katie i'd like to take i'd like to take a 10 minute break