 All right, welcome everybody it's Friday afternoon and we are picking up testimony on age 329 which is an act relating to amending the prohibitions against discrimination we have taken testimony on the starting in January. And with us today I asked for Yang and Julio Thompson to come back to testify on this they testified on the first day that we took testimony on that and so if Or are you here. I see Julio. Hi. I suppose I have to go hi so you can see us who's talking. So, I assume that you've been following along the testimony that we've heard for the last couple of weeks here and there and I just wanted to come back because your presentations were very thorough and you know under other circumstances we'd say sure let's go for it today. But we've taken testimony from from that have provided different, different views. And I just wanted to come back so that we could hear from you again what what the intent of the bills are and why it was constructed the way it was constructed we've heard We've got a Douglas we've heard about severe pervasive severe and pervasive severe and or you know just we've heard a lot of different things that have that have. So I want to return to the original context. Before we start marking up the bill. And so I just like to start with board and and then we'll come back to Julio after that and we'll have questions so welcome back for Thank you. Yes, thank you for having me back. Just for the record boring executive director and legal counsel for the Vermont Human Rights Commission, and I do want to thank all of you for inviting me back to testify in this bill I have been following the testimony. And I think the thing that I want to address first and foremost is probably the most important part of this bill, and that is addressing the severe pervasive standard that has been used by courts to analyze hostile work hostile school and hostile housing environments. As I shared on my first testimony. This standard has become impossible to me and no longer reflects what your average person would consider a hostile work or a hostile school or a hostile housing environment. I shared stories of women being subjected to unwelcome touches by their supervisors and coworkers in the courts finding that it's not severe because they were unable to show that it had an impact on their performance on the job. I shared stories of women being subjected to weekly comments about their bodies and sexual innuendos and the court finding that it was not sufficiently pervasive, because it had just not occurred frequently enough. The severe pervasive standard is both confusing and too great a burden to bear. Yes, there have been a few courts that have adapted an even stricter standard called severe and pervasive. The courts require that a hostile behavior be both sufficiently severe and pervasive enough. But that is the minority of courts that is not the current legal standard, the current legal standard is severe or pervasive. And it is not necessary for this committee or the legislature to clarify that the standard is not severe and pervasive but instead severe or pervasive. Keeping the word and between severe and pervasive in this bill, because currently the bill by mistake has the word and in it, keeping that word in here would mean that the committee only intends to correct those few courts that have wrongly applied a much stricter standard to hostile housing school and workplaces cases. In doing so, you in fact codify the severe or pervasive standard, which is completely the opposite of what this bill seeks to do. The intent of this bill is not is to address the going current standard of severe or pervasive, because it is too high of a burden to bear. And it is very dangerous to keep the word and in here, because you would then be taking a position that what courts have done in the last so many years it in analyzing hostile environment cases, and finding that those women that I talked about who had experienced a lot of bad places, you would be then taking a position that that is okay, that what has happened to women and minorities and people with disabilities, and people in the LGBTQ community and workplaces housing and schools is acceptable, and therefore not actionable. I just would remind us to go back to the intent of the bill, which is to clarify and address the going and current standard a severe or pervasive and not seek here to codify that instead. I mean, several of us were able to put together a proposed amendment to this bill. And if I may share, can I share my screen. Sure, is she a co host yet. Just a minute. We're going to make you a co host. Yes. Okay, let's see. Yeah, great. So I apologize that this was provided so late, but it took a couple of tries. So these amendments are being presented by me but they are on behalf of the Vermont chapter of the National Association of Social Workers, the Vermont network against domestic and sexual violence, and the National Women's Law Center. I also believe that if we had enough time that many of the witnesses who have already testified and supported this bill would also be signatories to this proposed amendment as well. The first proposed amendment is that we get rid of that word and as I mentioned, and insert the word or between severe or pervasive, and that should be done under the three areas of law here, both the Fair Employment Practices Act, the Vermont Fair Housing and Public Accommodations Act, and the harassment laws in education as well. So the proposal proposed that we delete the language that says behavior that a reasonable employee with the same protective characteristics would consider to be a petty slight or trivial inconvenience shall not constitute unlawful harassment and discrimination pursuant to the section. The proposal is that we delete that so that we can borrow language that comes from the Virginia bill that many of us testified is actually much more comprehensive and helpful to courts in using a new standard if we are dismantling the severe or pervasive standard. But before I get to that I do want to say that we want to also add verbal written visual or physical conduct to the definitions of sexual harassment. The words substantially and the word performance should be deleted from the part of the law with regards to the conduct or purpose or effect. And the reason for that is that what courts have done is they look to see not just whether the behavior that is bad is in itself creates a hospital environment, they look to see the impact of that behavior on someone's educational outcome. They look to see whether that behavior has an impact on someone's performance at work. We have someone who is subjected to a hostile work environment who is still performing well in the job that does not make it okay that they are being subjected to hostility. You can have a kid in school who is being called derogatory words on a regular basis, who is still getting A's in the classroom. That does not make it okay for that child to have to work that much harder to earn those A's. So when we remove substantially and we remove performance from both the definitions and under the Fair Employment Practices Act, as well as in our education laws and in our public accommodations and fair housing laws is that we take away courts looking to see what was the impact of the hostility on you and did you fail at school or did you fail on the job in order for us to find that you have a cognizable claim of hostile environment here. The language that we have for me ask a question on that. Yes, please. Can you, can you make the screen a little bit bigger, the text. Oh yeah yeah let me try. Just reload your. There you go. That's great now I'm at 2020 now thank you. So the words that are deleted here substantially and performance are you. I mean I when I hear you talk about them I view them as much more subjective is that is that because it's it's leaving it up to the court. It's leaving it up to the court to define what substantial or performance is. And that's what I think we're aiming to correct here is that I mean that that's too loose because different opinions can mean different people can mean different things. So the purpose of deleting substantially and performance. The plaintiff still has to show that what has happened to them had an effect, and it interfered with their work, and it created intimidating hostile and offensive work environment. They still have that burden they still carry the burden of having to show that there was some type of interference, and that it created an intimidating intimidating environment. So one is the courts to say, but, but how much did it interfere with your performance. Did you go from an A to would be, did you go from a to a D in the classroom, or did you not pass probation because of the hostility. That's what we're trying to avoid here is having court look at the impact on someone's work performance or the impact on someone's school performance and courts had been doing that. And the goal here is to say that that sort of analysis is not necessarily the best or most appropriate analysis for determining the hostility that this individual has had to go through in order to still achieve those same outcomes. Okay representative person. I said a question with the beginning of that sense there. You're saying that it would, they'd have to show that they were substantial, you know, there's substantial interference with their work and or their performance but doesn't the first section of having the purpose of they wouldn't have to show that there was any substantial interference. There wouldn't even have to be any of just that was the purpose of. Right. Yeah purpose or effect. So we have purpose or effect so can show that the purpose of is to interfere, or did the effect of, but I think the key here is to get rid of the word substantially so we don't have courts weighing how bad was it in terms of the outcome. The outcome of someone's performance in school or in work to determine how much of the interference that occurred. I just want to say we see a lot of cases at the Human Rights Commission, where someone was still able to earn a's in the classroom, even though they were being called a derogatory racial slur or another term related to their disability on a regular basis. And we what we are trying to avoid here is having courts go. Well, you did well. So apparently it didn't substantially interfere with your, your school performance. But in reality, you cannot capture the fact that that kid worked that much harder to earn those a's in that classroom, because of what they were going through. So that's the purpose of getting rid of substantially and getting rid of per performance here. They still carry the burden of showing that the conduct has the purpose for effect of interfering, but that the idea here is to get rid of the analysis that courts have been doing around outcomes. I think that's a good side of Murphy has a question. Yes, thank you so much for being with us and I know that your time is is challenging to share out so I can understand, looking at and I have to admit I've read it had a little bit, but looking at what you're providing to us with a recommendation of amendments, but it amends three different volumes of our statute so so we, and I'm new to the committee this season. Perhaps I'm speaking out of turn but but so now we're doing not just labor but commerce and education with the amendments you're providing so I'm just. I think it's noble to have the broad reach and to have this out here but I'm just curious if, if this is your intention to broaden us and have it become a bigger discussion or if you're just offering us some thoughts. The original bill as introduced already seeks to amend all three areas that my amendments or our amendments today really only creates consistency between all three areas but while the majority of the witnesses that have testified before this committee were relying on workplace harassment. The reality is is that the bill as introduced seeks to change the anti discrimination laws across all three areas. My apologies I see that I grow far enough on my on my copy you're right and thank you for bringing that to light for me that I hadn't seen that. No problem. Like I said, again, I think a lot of witnesses were experts in the workplaces and that they testified to that so the focus has been on that that you may remember that some of your original witnesses were also from legal aid and CEO EO such that I'm not going to say right. I'm going to remember all of that right but I just I meant from CBO EO testified because they also support this in housing as well and the Human Rights Commission has jurisdiction over all 3 areas. Both the harassment laws and in the education laws as well as the Fair Housing and Public Accommodations Act and the San employment practices act as it relates to government employees. I think there makes sense for there to be a commonality of harassment and how we look at it. I don't think it should depend on what silo you're in, whether you're being harassed or not. And I would just say, I'm having a little trouble hearing you periodically too, so I don't know if your microphone can just be brought a little closer to you or if it's... I'll try my best. Thank you. Yeah. Yeah, now you're clear. It's just, it was somehow how you were moving that I was losing you. Okay. Yeah, thank you. I was going to say nobody's ever had to tell me to speak up. So it's new. It's new. Yeah. All right. Thank you. Thank you for you. Let's keep going. Okay. So the other proposed amendment here that I mentioned is instead of the trivial or slight offenses is that we adopt the language that comes from the Virginia bill, which I think is more comprehensive. And I'm happy to answer questions around it too. But here it is underlined and embold. In determining whether conduct constitutes harassment as defined in this chapter, the following rules shall apply. A, a determination shall be made on the basis of the record as a whole according to the totality of the circumstances. And a single incident may constitute harassment. B, incidents that may be harassment shall be considered in the aggregate with a conduct of varying types, including expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation, viewed in totality rather than in isolation, and conduct based on multiple protective characteristics including sex and race viewed in totality rather than in isolation. Conduct may be workplace harassment regardless of whether the complaining party is the individual being harassed. The complaining party at West or otherwise submitted to or participated in the conduct. The conduct is also experienced by others outside of the protected class involved. The complaining party was able to continue carrying out duties and responsibilities of the party's job. Despite the conduct, the conduct caused a tangible or psychological injury or the conduct occurred outside of the workplace. Okay. So these, this what I believe creates a much more comprehensive list of factors for courts to use to analyze harassment than just simply suggesting that they not be trivial slights or petty slights. And this is important because what we do know is that courts have had trouble analyzing hostile environment cases when a plaintive belongs in intersectional identities. So in the past, when a woman is also a woman of color, and she was subjected to racial slurs, plus sexual innuendos, courts would isolate the analysis and say, well, those racial slurs occurred only a few times, not severe. And though that sexual innuendo only occurred a few times, that's also not severe or pervasive. This requires courts look at the totality of the circumstances, the big picture, and look at who is creating the hostility here, who is receiving the hostility here, and is it interfering with or doesn't have the purpose or effect of interfering with their work or their housing or their schooling. And so I think that this is really helpful to courts to set forth a much clearer standard for how to do that. You'll see here under section C, conduct, maybe workplace harassment, regardless of weather. And it lists these factors because different courts have found different required additional factors that creates a lot of confusion in terms of how to analyze it. Some courts have said, well, you need psychological injury. I need to see that you went to see a therapist and there's damages connected to that. Or, oh, it didn't happen within the four corners of the building. And so therefore, it's outside the workplace. Or we know that with kids that harassment is happening on school buses. Harassment is happening on field trips. Harassment is happening on the field, off campus when they are playing games. We know that that is occurring. So we want to also capture the fact that harassment can be occurring in environments that are controlled by schools and housing providers and supervisors and managers, even if that conduct is not within the building specifically or the property adjacent to the building specifically. And then the rest of the amendments seek to do the same thing in the Fair Housing and Public Accommodations Act. You'll see here we're asking that we get rid of the word substantially as well, borrow again from the Virginia law and also same thing with under the Education Harassment Laws also. And so, yes, that is the some of the amendments that our group would like to propose to the committee. I know that there are a lot of other questions regarding other parts of the bill, which of course, to me are very important. But I wanted to make sure that we had enough time to talk about what I believe is the most important part of 329 and answer any questions that you may have about this or any other parts. Senator Murphy. Thank you again. I appreciate the piece where you're removing the word performance. I think that especially when you look at the educational portion, but in any of them, it's it could have interfered with my ability, my experience, but I may have overcome it and perform just as well as anyone might expect. And so it's an outside determination, whether it was a problem, as opposed to just a hurdle I had to get over. So thank you for bringing that forward. Oh, I do have one question because you said the other pieces, would it be okay if you want to finish with this? There was on CHI on page three, the General Assembly finds that claims of unlawful discrimination, a whole piece about the summary judgment. We had several recommendations that we shouldn't be speaking there. Do you feel that it endangers anything by just removing that? Um, I don't let me say that that is a lesser priority for the Human Rights Commission. And if that's the thing that is the barrier to moving this bill forward, then I would understand the committee's position on that. My feeling about that is that when you are creating a new legal standard, that you want to make sure that courts aren't still using this body of law that they've been using for years to say that the law is so clear and someone is entitled to win. The whole purpose of summary judgment is the law is so clear someone is entitled to win. What we're actually saying now the law is not clear. This is new. We're using a new standard here. And so it's not necessarily appropriate to move forward to grant summary judgment. And mind you, the piece around summary judgment is not actually suggesting that courts couldn't grant a motion for summary judgment. It's just saying we don't necessarily think that that's the best approach or most appropriate approach. But I defer to you. I know that there was some arguments that seem to be compelling. Thank you. Representative Fango. Thank you. Section 221, VSA number 13A, which I believe Representative Murphy just referred to. I thought she was going to get this cleared up for me with her question. I don't think she did. So the phrase, the conduct has the purpose or effect of interfering with an individual's work is problematic for me because I don't understand what exactly that could encompass. To me that could encompass just about anything. And there again, the burden of proof would be on the person who is doing the harassment for the discriminatory behavior. And it is up to the victim or the alleged victim to tell, to say what effect it had of interfering with their work. And the alleged perpetrator would have to prove that they did not have an effect. on their work. So that's problematic for me. So the burden of proof is always on the plaintiff. There are a few circumstances in laws that where the burden shifts back and forth. But the burden of proof, improving any kind of discrimination case, including a hostile environment case, is always on the plaintiff. They carried the burden. So they would have to show and prove that what they experienced interfered with their work or had the purpose or effect of interfering with their work. So that could be a kid in middle school who said I was called this derogatory term on a regular weekly and I went home and I cried and I told my mom and my mom spent many hours at night working with me on my homework. And I, yeah, I still got an A, but it did impact me. And they would be testifying to that effect. And it would be up to a judge or a jury to decide whether that person is credible, whether what that person shared was true. Usually mom would probably testify as a witness to say that my kid did come home every night crying because they were called this derogatory term at school on a weekly basis, that this was happening to them. So the burden is still always on them. And they do carry that burden. Thank you. I think I used the wrong term by saying burden of proof. I was more thinking, actually, I was thinking at this from an adult's point of view, not a child. So you do bring up a good point when you talk about children in school being discriminated against. However, I was thinking of discrimination in the workplace. And these are adults who could speak for themselves. So I don't know. I still think it's, it's quite broad, but I'll leave it at that for now. Thank you. 100% of kalaki. All right, Damien, are you able to join us at this? As well. I'm right here. I just want to make sure I understood. And I'm on page three of the bill, line eight, and it's about the decision not to pursue an internal grievance, allowing determinative. Damien, did I understand correctly that you said currently the statutes are silent on this issue? This is yeah, it's not currently addressed in statute. What this addresses is a defense that employers can put forward against liability called the Farragur L earth defense. And this is the second prong of that defense, which in which if the employer can show the employee was unreasonably elected not to pursue an internal grievance process, the employer can succeed on that defense. So it's the basis of the fence and both Julio and Bork can probably state this much more accurately than I can. But the basis of the defense is basically that the employer has an effective, has taken effective measures to prevent discrimination from occurring. And then that the employee unreasonably failed to take advantage of the internal process for addressing the discrimination that occurred. So therefore, the employer shouldn't be liable for the discrimination that occurred. So it's basically what this does is it relates to that and it says that the failure to use that internal grievance process is not determinative. So and I did invite both Bork and Julio who have far more experience in this area than me to correct anything I may have misstated or to add additional detail. Well, I certainly would love to hear from both Julio and Bork. I was intrigued with other testimony about this that, you know, some employees, employers, are trying to set up these systems to make them work and affect change in their organization. So I'm wondering if we were silent on this particular issue if for Bork or Yang, if that would weaken the bill or the attention of the bill. Again, I think this bill, you know, brings up a lot of important parts and the most important is the severe or pervasive piece of it. But having said that, I think we did also hear testimony from several people that suggested that it can be incredibly difficult for an employee to exhaust that internal grievance process and unfair to require them to do so. This language in the bill comes from New York City's statue and what it does is, and Damian, you did a really great job of explaining it, but what it does is it addresses an affirmative defense. I want to clarify that there are defenses and then there are affirmative defenses. Affirmative defenses when they're raised by a defendant says, you lose. You lose if I can show that this happened, that I had this grievance process and you didn't exhaust it, it feels like an automatic lose. And so the idea here is and why the language is not determinative is you may have that, but this lawsuit should still proceed. You may still present that information, but it shouldn't determine the outcome of a harassment claim. That's the idea. Okay, thank you. And William? Yeah, on this, you know, this language was brought from the 2019 New York law. And by its terms, it's not limited to the affirmative defense in a supervisor case. And in my initial testimony, I raised the question of what effect, if any, that section about failure to participate in the complaint process, filing a complaint is part of the complaint process. What would happen in a coworker case where the conduct isn't witnessed and the employee doesn't complain is the employer nonetheless liable, whereas under a current law, they're not liable unless they knew about it and failed to take corrective action. So I think I mentioned in my introductory testimony last time that I was making an effort to talk to the New York agency that's our counterpart the HRC's counterpart for New York State, which has been applying this law since 2019 to ask them what it meant. And I did have that conversation this week with the general counsel for the New York State Commission on Human Rights, which is tasked with enforcing the law. And I put to them the same example I gave you what if it's a coworker or a third party like a customer at a restaurant who routinely harasses the waitstaff but it's not witnessed by the employer or a manager and it's not reported to the employer. What happens then? How do how would you apply the law then? And the answer I was a little surprising. The answer was we don't know. We didn't write that language. No one asked us about it when they added it in the law. I think I don't know. I'm not sure if it was a joke or not, but saying that this law was passed at midnight with a flurry of amendments. And they're not sure. They have only had to apply it in the cases where there is a supervisor who engages in harassment but no other action like they don't reduce wages or increase wages or reassign somebody for which under the existing law there is no affirmative defense. But they haven't had a case where a coworker or a third party is harassing a complainant and the only way the employer could find out about it, management could find out about it, would be through a complaint. So they don't know. They haven't said whether and they said it's too soon for there haven't been cases that have gone to court on that fact pattern because cases may resolve for other reasons unrelated to that legal issue. So I can't tell you what the scope of it is. I think that as it's written, if it were applied to the coworker harasser or the third party harasser, then it basically would be strict liability for harassment that happens at least on the employer's premises and maybe off the employer's premises. You could have guests who come into the establishment and if the employer doesn't have an up, even if the employer credibly presents evidence that had they known they would have taken corrective action. If the law it would be changed here to be that you're liable nonetheless, and it's just a question of damages, then that would be a pretty significant change to tort law. There's nowhere I know in the United States that that's had or proposed strict liability. And like said, my counterparts in New York are not sure that's what was intended here. So the committee and they're looking at this may want to look at the context of the defeating that supervisor exception, that affirmative defense, as opposed to more broadly because I think you want to I think if it's going to be strict liability, that's what the legislature wants to do. They should just say it that an employer is strictly liable for harassment by its employees or people who are on its premises rather than leaving it leaving the uncertainty for the parties there. So I'm sorry, that's an unsatisfactory answer from New York. I perceived it wasn't stated, but I perceived that there was some dissatisfaction from New York about that languages, or at least the enforcement agency about that as well. New York City, who had an ordinance which from which a lot of the New York sorry, New York City, their law from which much of which the New York State law was based, didn't have that provision rather the failure to participate or to report might doesn't affect liability, the same standards still apply, but might, you know, wouldn't limit damages. So it was a different formulation. So I think it's a bit of a question mark for us. I did have some comments about severe and pervasive, but maybe it's not the right time. I'll let the committee decide that. Oh, well, I think, no, I think, let's consider that the baton is the past to you. Okay. Well, thank you. So I haven't the borers memo I didn't receive a copy so I was just looking at it in real time on the screen like the rest of you. But there are a number of things that bore said that I agree with would be sensible. I think a lot of the standards or language that she wants to put in, I think describes the existing case law in Vermont. And in the second circuit where Vermont resides to give an example and I'm not sure what what cases were being referenced but like the factor to give one example like putting in statute that the inch that you don't need to suffer psychological harm in order to make a claim of hostile work environment harassment. That's been the law in the United States since 1993. In a decision, Justice Sandra Day O'Connor, then Justice O'Connor wrote in a case called Harris versus Forklift, the employer's defense in that case was that the the workers failure to show psychological damage defeated her claim. And the Supreme Court ruled in that case that one does not need to show psychological harm. I'm not aware of any case in Vermont at the Superior Court Supreme Court Labor Relations Board District Court or the second circuit that takes a contrary view. So if the legislature wants to put it in a statute, I think that's fine. I mean, Harris was a Title VII case. And we do have Vermont Supreme Court precedent saying we look to Title VII cases for guidance because of our law is patterned after it's not exact it's not exact copy but it's it's patterned after Title VII. So from our enforcement position, we've never turned away a complaint for lack of showing psychological injury. I'd be surprised if the HRC ever has. And I'd be very surprised if a Vermont court did that. And I'm not a fortune teller, but it would be hard for me to imagine the Vermont Supreme Court would come out to that result. So it's in the Virginia bill, but the law in Virginia and its circuit might be different. But I think it describes existing law in Vermont in the second circuit, and certainly in federal courts, because that's the Harris case. I don't have the language available to me on the bill or the amendments in front of me, but in terms of substantial interference with work, I don't know if anyone put it back on there. I think there seem to be, it seemed to me at least as I was hearing the testimony that there wasn't a recognition that the rest of the sentences and or that it said it has the purpose of effect of substantially interfering or creating an intimidating offensive and hostile environment. So as the law exists now, you don't have to show substantial interference and indeed, as the law is written now, you don't have to show any interference. But you would have to go to the second part of the sentence and show that it was an intimidating, hostile, an offensive work environment. So we in the CRU have never seen, we have never used as like the lynchpin test, can you prove that your work has gone down? That might be a factor in assessing, but certainly not a required factor. It might be a factor in determining how offensive was it, how hostile was it to you. And so I'm not sure that substituting substantially interfering or interfering would have that much effect on the cases that we have. I would say substantially interfering, I mean, it gets a little bit like angels on the head of a pen to an extent because even if everyone admits it didn't interfere with my work, the legal question still remains. Was it offensive? Was it hostile? Was it intimidating? Notwithstanding that it wasn't substantially interfering. And our practice that I think Vermont courts, if they find the answers yes to any of those big questions, you could still have liability notwithstanding the lack of substantial interference. So it's not a requirement now. It's one of several doors that a complainant can go through. On the issue of the purpose or effect, in practice that purpose, I'm not aware of any case where, and I'd be interested in hearing one, where the conduct had the purpose but zero effect and was still viewed as a violation of the law. That is, if I'm a harasser that isn't the brightest and I'm hostile to a particular person in my office, and I think that calling someone mediocre is the worst thing that you can call anybody because it was something I was called when I was a kid and it really hurt my feelings. And I quit whatever I quit. And then so I tell someone I call them mediocre. And I have the purpose of creating a hostile work environment for them. But it's undisputed that the person who heard it was not offended by it or thought it was petty, was not intimidated by it. I don't think we or the Human Rights Commission in that case would find that a blow that doesn't land, an offensive letter that gets lost in the mail, is actionable if there is actually no effect on the complainant. So it's a word in the statute that pre-existed all of us I think here in the room and being involved with the bill. But I don't think it's particularly problematic in practice. So we just proceed and say what kind of environment was involved here. One reason that you still need to focus on effect is a reason that no one's mentioned yet, which is that this is a government created sanction. And some of the conduct that's involved here is speech. And so whenever we look at speech, we always have to ask whether the speech is protected or not by the First Amendment or by the Vermont Constitution. Because not all, because not because a single utterance, there are certain political views or religious views that can be uttered by workers in a discussion, which might express views about equality that might prove offensive to other people. You could have at a company picnic, for example, someone who's new to the United States and says, well, where we come from, women don't do manual labor. That's a gender-based statement uttered in the workplace. It has a gender slant to it, but it also might have a religious basis as well. And constitutionally, to punish someone or subject them to suit for making a statement with no kind of impact on anybody else would be difficult. The basis for regulating speech in the workplace comes from the legislature's constitutional authority to regulate business. And that harassment is a form of interfering with someone's ability to participate in the economy. That's not what we haven't really focused on that. But that's where your authority comes from, our Congress's authority to regulate interstate commerce. And so the underlying question in our harassment case, and this will circle around to where I think Boron and I are standing really closely together, which is that the focus really is on whether the conduct is interfering with someone's right to enjoy their employment on equal terms with people who are not subject to the harassment. It's not about like how much you can take, how bad is bad and you can't take it any longer. Fundamentally, the question is whether if we let's use sexual harassment, is your female worker, are they on the same footing with their male workers? Or are they on a lesser feeling? Is the job less welcoming, less comfortable to them? Do they feel like they're equal partners, notwithstanding whatever the conduct is? And that's why it was appropriate, I think, in some of the language here to note that it's not necessarily sexualized, like dirty talk or whatever, but it can also be hostility towards a particular group towards women to use to keep with my example. So someone who expresses in their various different ways that women shouldn't drive big trucks in our organization and there's an express and there are various behaviors that show a hostility towards women working certain jobs, comparing them to men who don't receive those comments or the rolled eyes or the cartoons or whatever it is, that's fundamentally what you're looking at. And I think some of the jurisprudence here has got caught up in this idea of like human endurance, how bad is it have to be before a human being gives up, can't take any longer. And I think part of the focus on the severe and pervasive standard is a recognition that courts have focused more on that rather than on are you enjoying, you know, we would all have no difficulty deciding a case if an employer had a policy that said in our, you know, our lakeside adjacent offices, all the inner offices, the ones without windows go to women and only the outer windows with the view of Lake Champlain in the mountains go to men. If that were the official policy, we would have very little difficulty saying that that is violation of the terms and conditions of employment because you have unequal treatment and it's not, you don't have to prove that you can't endure being working inside of an interior office. It's rather that your participation in the economy is different than people of the opposite gender because of your sex. And I think the idea of zeroing in on that, on workplace economy, you know, is really an appropriate subject for the committee to be discussing because really that's your authority is to regulate the economy. And that's why you have to look at how it affects somebody's ability to work. So I'll stop there. I'm in time for a while. Representative Fango. I think I'm good. Thank you. I'd completely forgotten what I was going to ask Julio. Okay, nice. You got full mastered. All right. Any further questions right now for either for or Julio? Representative Parsons. One quick one was on the suggestions that Morgan had put up on the screen. One of them was about the they're not having to take place in the workplace. I think was the wording. That just seems, I think, taken from Virginia maybe. That just seems the language of it, I guess problematic. I mean, I would imagine that the workplace is, you know, to different for everybody from my workplace. It's the shop, my van, somebody's house. That's all my workplace. I mean, and as far as the schools go, the school is anywhere where the school system is in charge of the children, you know, the bus is included, field trips are included, playgrounds included. Well, I think there's a couple of things and I'm not the expert here on education or public accommodations because the civil rights unit doesn't practice in that space. I will point out, I think Bore made and the Virginia legislation makes quite a good point that especially in the digital age we are now that connecting it to the brick and mortar institution, the employer's premises. I'm talking to you from my house. This is the mudroom behind me. And so we routinely encounter cases where employers or coworkers are sending obscene text messages to subordinates or coworkers, even though they may be in different states or countries. A teacher sending lewd texts while he's on vacation in Venice to a student that is in Rutland is still going to have an effect on that student's educational opportunities, notwithstanding the fact that they're thousands of miles away. So I think that existing case law recognizes that there still has to be a connection to your institution because that's what you're regulating is an equal workplace or equal job or school or enjoyment of a public accommodation. So merely saying that it doesn't have to be on your brick and mortar. I mean, I think that's existing law and codifying it. I don't think it's an issue at all. But there is, I think courts are able to distinguish examples that have come up where a coworker, an employee sees another worker doing something at a mass sports event. There have been cases where people have removed parts of their clothing hundreds of yards away with their group of friends at a sports event and is seen by a coworker who then becomes uncomfortable. Courts would say you need to show more connection that it was directed at you, that it had some effect on you rather than being some happenstance where someone's employed in public doing something that made you feel uncomfortable. So merely saying that it doesn't have to be on your premises, I think I certainly don't think that increases risk or problems to the employers. And I think it's helpful. It's very likely descriptive of the law that's existed in Vermont all the time. And so it wouldn't be something that I think there are other issues here for the committee, I think, to have questions about. I don't consider that like a significant one. I'd be surprised if you heard employers say otherwise. Okay, yeah, that was just one thing. It seemed dodgy. I mean, yeah. Representative Clacky, Julio, I know Representative Murphy had asked for about the subred judgment component. And I'm wondering if you have any thoughts on that piece of the bill. I think I'm with more here, as she said before, I don't think it's very important point. Putting aside, I mean, there are rules about the standards for when to decide summary judgment in civil cases under Rule 56 of the Vermont Rules of Civil Procedure, which are put out by the judiciary. Supreme Court decides what the standard is and puts it in that rule. So there's, you know, this kind of an interesting academic discussion about separation of powers and whether legislature, you know, they can they can say when judges should apply their own rule, their own standard. And it also there's a practical question if, you know, many spirit or judges might get four employment cases a year. And so how a judge is supposed to decide in a given case, I whether it should be rare. So like I decided summary judgment in a different case. And now if I do two in a year, is that rare enough? So I'm not really sure. Articulated in that matter, really, really does much at all. It'd be you may want to hear from Judsoni or others in the judiciary about that. You know, there are other ways there are other aspects that that may be legislated like who has the burden of proof, whether a given issue is a question of fact versus a question of law. So questions of law go to judges questions of fact go to juries. And then there's something called a mixed question of fact and law, which a judge may be able to decide in some circumstances in some circumstances it gets kicked over to juries. But I you know, I think as it's written now, I'm not sure how it would affect judicial behavior because I'm not sure it's efficiently concrete for judges to make much sense of that that the general I mean, the standard is if your facts are not dispute if the facts before the judge are not disputed, and the law says those facts are not sufficient, then you decide for the defendant if they are sufficient you decide for the plaintiff. And so to say it should be rarely applied seems to be I'm not sure how that helps a judge the judge is going to do we have a factual dispute or not. In cases in harassment, facts are often disputed. You said this no I didn't that's a jury question. This this created an intimidating environment for me. We disagree that's a jury question. So I'm not sure it really does a whole lot. I don't think I don't think having any in would likely affect things judges might disagree and I don't think having it out weakens it if you're going to advance the other things that you're going to do. So I agree with for I don't think it's the biggest. It's the biggest asset. Well, thank you for your time and for your for your testimony on this thank you for providing us with these amendments for us to consider truly appreciate that. Okay, we're going to take a five minute break and then we're going to move over to age 244. Again, Julio and board, thank you so much. Have a good weekend. Thank you for seeing you all. Thank you, boy. Thanks. Amen.