 All right, welcome back. It is Thursday afternoon and we are going to be working on two bills before we go to the House floor today and we're going to start with a walkthrough of H329. We heard a number of witnesses on this last week, but I realized that we had not had an actual walkthrough of the text, so I wanted Damien to come in and then after we're done with this walkthrough, we will have testimony from Lauren Hibbert and one of the things to talk about, well to talk about H157, about the changes that the Senate made to it. Lauren is the director of the Office of Professional Regulation at the Secretary of State's office. So let's start with Damien. Damien, welcome back. Long time no see. Yeah, good afternoon, everyone. For the record, Damien Leonard, legislative counsel. So I'll pull the bill up on the screen here and we'll go through it. Feel free to stop me if you have any questions as I go along. There we go. Okay, can everyone see that? The size is okay today. All right, I'll take your silence as acquiescence. Great. So what we're amending here in section one is the unlawful employment practices. This is our anti-employment discrimination law. So the first amendments here are in subdivisions A1, 3, and 4, and we're adding the words harass or before discriminate. And we're going to, in a later section, define what harass and harassment is. So this is prohibiting workplace harassment based on protected characteristic, which are an individual's race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age, and then or harassment or discrimination against a qualified individual with a disability. So basically, this would be harassment or discrimination based on an individual's disability. The qualified individual with a disability term refers essentially to an individual who has a disability or is perceived to have a disability and is qualified to perform the particular job. So it's a legal term of art that incorporates a lot of different factors. For our purposes today, we're not going to be adjusting that, and this is based on the Americans with Disabilities Act and then repeated in our law. But sometimes people trip up on that term and wonder exactly what that means. So again, in three and four, we're adding the words harass or before discriminate. And then in subdivision eight, which is our prohibition against retaliation, we are striking the subdivision heading here because it's not consistent with the rest of the section. So that doesn't affect the substance of the chapter. And then we're adding the words harass or before discriminate. And what this prohibits is harassment or discrimination because the employee complained or participated in an investigation of some conduct that's prohibited by the section here. The next section and this got some discussion earlier this week when we went through the bill is that an employee's decision not to pursue an internal grievance complaint or remedial process with the employer shall not be determinative in any claim that the employer violated the provisions of this section. So one thing I just want to highlight is I'm saying employer to encompass employer employment agency or labor organization. And really what we're looking at here is whether you're an employer or you're an employment agency that refers employees or your union, you can't discriminate in these various areas of employment against an individual based on their protective class. Most commonly we hear this discussed in the context of employers. What this subdivision does is it essentially prohibits an employer from or I'm sorry, no, let me start over what this subdivision does is it says that the employee doesn't have to pursue the internal grievance process provided by the employer to address the prohibited behavior before pursuing a claim. So an example of when this might be important is if you're being discriminated against by your boss and the person you're supposed to report discrimination to is also your boss. So at that point what you have in that situation is this perception by the individual basically that it would be utterly futile to pursue the prescribed internal grievance process because the person who's hearing the grievance is either the person who's engaging in the problematic behavior or is perceived to for some other reason not to be able to address the problematic behavior. Or because of fears that you're going to be retaliated against. I see a question from Representative Kalaki. Go ahead, John. Thank you. Thank you, Damien. On this one, if a claim is found true, the organization is liable versus the person. So the Vermont's law is interesting because you can bring a claim both against the organization and against an individual. So for example, you could file the claim both against your supervisor and also your employer. So the problem for organizations is when they become aware of discriminatory behavior, they have a duty to ensure that it stops. And if they allow it to continue or they basically acquiesce or support its continuance, then they're liable under the statute. By the same token, though under Vermont's law, you could also sue, for example, your supervisor if your supervisor is engaging in that discriminatory behavior. So they could be included in the suit. Realistically, it's really going to depend on the case as to how you're going to pursue that. And in some cases, the liability for your employer, you would need to actually, your employer may not be aware if you don't pursue an internal grievance process. But there may be, you may be able to seek some injunctive relief to get them to change their processes or something like that. This particular clause trips me up a little bit. So I was the head of an arts organization, the Flynn Center. We employed a couple hundred people. I can understand if someone didn't want to file a grievance for their supervisor, that would be complicated. But as head of the organization, if I never heard about this harassment or this treatment happening, I'm not really sure how the organization then would be responsible. So there's also the issue that it's not just the head of the organization, it's the managers within the organization. If you're a small organization and the head of the organization is also the manager, then that could be an issue there where the organization, you know, it may be hard to prove liability for the organization. On the other hand, if, and I'm just use a hypothetical organization here, so I'm not saying if you were doing this, you would be liable. But if, you know, the CEO of a company is not aware that one of their division managers is discriminating against people who belong to a particular protected class, the organization is still liable for that manager's behavior, because the manager is seen to be acting on behalf of the organization. So even if the CEO is not aware or can claim lack of awareness, the behavior can still be imputed to the organization. Even if in that example, even if no one raised a claim against that particular manager. Right, the managers seem to be acting on behalf of the organization. The issue for the organization knowing about it comes when it's a non managerial employee discriminating against other employees. And that employee isn't acting in a supervisory or managerial capacity for the organization. At that point, pursuing the internal complaint or grievance process is really necessary for finding that the organization violated the law or can be because what you need to do is show that first the organization was aware of the behavior, and then second they did nothing to stop it or enable the behavior to continue. So this is a section, this was taken from a change to the New York law, but this is an area here where you may as a committee want to consider whether you want to leave it in or let the existing case law, which already does address this issue to some extent and you'd want to hear from advocates on this, but whether you want to let the existing case law continue to just derive this issue or whether you want to clarify this here to say if the internal grievance complaint or remedial process is seen to be futile. So in other words, if you're having to file your complaint with the individual who's engaging in the harassment or who has explicitly condoned that behavior, then that could be an instance when you say look, you don't have to go through that process in order to pursue a claim, but that's already where the case laws has come out in those cases where there's futility and pursuing the claim. So we're not going to hold it against the individual, but I think what you would want to hear about as a committee is are there instances where it makes sense to extend the existing case law beyond that point and do we need to do that in a statute. So Bo Yang the other day talked about the New York and the Virginia laws. The New York law added that language. The Virginia bill that's been proposed on this does not explicitly add that language. So maybe if we pursue this bill, I'll ask what the case law is or a link to that just so I can understand what our existing case law is. I'd be happy to kind of walk you through some of the Vermont case law that breaks this down. Admittedly, I didn't do a deep dive on that before we started today. Thank you. I'm good. Thank you, Damon. Was there another question that I saw? Okay. So the next piece here and this was another thing that was raised as a question by I believe Julio Thompson the other day. This year provides that an employee shall not be required to demonstrate the existence of another employee or individual to whom the employee's treatment can be compared in determining whether a violation of the provisions of this section has occurred. So this language here, so currently when you're looking at an employment discrimination claim, you've got sort of different ways the claim can go and one of those types of claims Julio brought up is a disparate impact claim. And so that's where you can have a facially neutral employment policy, but it affects certain workers. It affects certain workers in a way that might be discriminatory, even though it's neutral on its face. And so to give you an example of that from a case that went to the Supreme Court a few years back, they're one of the major shipping companies had a policy where it said the only people who can get reassigned to light duty are people who's with a workers comp injury where part of the clearance to return to work requires light duty. The problem with this was was that among their workers you could also have individuals who are pregnant or had another disability who weren't on workers comp but who had medical basically a medical directive from their physician saying they need light duty they can't lift over a certain amount. So even though it wasn't a workplace injury for them, they required light duty and there was a pregnant employee who sued the company because she was put on unpaid leave, if I remember correctly, instead of being given light duty after her doctor said that she couldn't lift more than 20 pounds during the final month or two of her pregnancy. And so in that case, that was found to be disparate impact discrimination there. It was a facially neutral policy, but the problem was is that for individuals who weren't on workers compensation but did belong to a protected class, they were being treated in a way where they weren't they they were basically being discriminated against by the policy because they were forced to go on unpaid leave, rather than being reassigned to light duty as some of the other employees who were similarly situated were allowed to be assigned. So what this says is that an employee shall not be required to demonstrate the existence of another employer individual to whom they can be compared in determining whether a violation has occurred. What Julio raised here was he had concerns about how this might affect disparate impact claims. And so this is something you'll probably want to take more testimony on. Again, this is based on the underlying New York law. But what it basically would allow is for employees not to have to show that there's similarly situated employee who's treated differently. I think what this is getting at or intended to get out is instances not where you're showing disparate impact but where you're showing disparate treatment to prove that discrimination is occurring. So I belong to a particular protected class and then there's an employee who doesn't belong to that protected protected class who's being treated differently for purposes of discipline or something like that. And the discipline I'm arguing is all related to the fact that I'm in that protected class. So I'm arguing discrimination based on that or I was passed over for promotion despite having similar performance to someone else. And this is saying that you don't have to be able to show that in order to argue that you were discriminated against based on your membership in that class. Does that make sense to everyone? Okay, I saw a couple of heads nods. So the next section here, this section is interesting and I'm going to break it into two parts. The first is that the General Assembly finds that claims of unlawful discrimination and violation of this section are rarely appropriate for summary judgment. So to start with summary judgment is essentially it's when you ask the court to rule on the law in a case based on the undisputed facts that are before the court in the complaints in the complaint and answer. So and then you're basically you aren't doing development of the factual background. You're just saying based on the undisputed facts that are alleged in the claim, the plaintiff either can or can't prevail in this case. And what this is saying is that these cases are so fact specific that the General Assembly finds that the claims are rarely appropriate for summary judgment. This isn't saying courts you cannot grant summary judgment on it. It's just saying that the sense of the General Assembly is that these cases are typically not appropriate for summary judgment. This is not really something that we commonly say in the Vermont statutes, but it's also not telling the court how it has to rule or how it has to consider the evidence. It's just saying these are our findings. I see another question from Representative Clacky. Well, thank you Damien. It's our findings, but we don't have any statistics on this. So this is and it says we find this. I don't know how we how we find this. So well, that's that's a question really for the committee to consider if you move forward with the bill is whether you agree with this finding. And you know, you may want to take additional evidence to see to understand why the you know why this language was added to the bill and why the advocates either think it should or should not be in the bill. Great. Thank you. Yep. Yep. So the next piece gets at the question of state and federal judicial precedent. And so it says notwithstanding any judicial precedent to the contrary. So essentially if there are prior court rulings that are contrary to this language, we're asking the courts to ignore them going forward. And then what we're saying first in A is the provisions of this section would be construed liberally to accomplish its remedial purposes. And any except exceptions and exemptions to the provisions would be construed narrowly in order to maximize the deterrence of discriminatory behavior. This is something that we say literally dozens of times in the Vermont statutes. So it's not an uncommon provision in here. And but the question is, do you know, the policy question for the committee is whether you want to include this language in the final bill that goes forward. But it's not an uncommon provision for the General Assembly to include in a law, particularly one that is designed to protect a certain group of people. I see a question from Representative Blumlee. Yeah, thanks, Damien. I'm just wondering if you can give us a couple of examples of where this phrase has been adopted in the past? Sure. So I am looking forward, looking at, let's just see here. So in the workers' compensation law, for an example here, 21VSA 709, we say in construing the provisions of this chapter, the rule of law that statutes and derogation of common law are to be strictly construed shall not be applied. The provisions of this chapter shall be interpreted and construed to affect its general purpose to make the uniform law uniform the law of those states that enact it. So we're saying don't strictly constru it. Constru it to accomplish the purpose of the law in 9VSA 4170, which is the the lemon law there. Nope, I'm sorry, that's a court holding. The search engine that I use for these things pulls up court holdings and statutes at the same time. So if we look at the municipal bond bank statute 24VSA 4553, this chapter shall be construed liberally to effectuate the legislative intent and the purposes of the chapter. Do you want me to keep going or? No, that's great. You just gave me a sense of how it's been used before. Yeah, oh, and then yeah, and then there there are if we go back to workers compensation, there are several court holdings that talk about how courts read liberal construction clauses. So if this is something that committee wants to go into deeper, if you move forward with this bill, we can talk about that a little bit more and how it's been done in other employment laws. Okay, so that's the first piece. The second piece of this is harassment and discrimination need not be severe and pervasive to constitute a violation of this section. First, as I mentioned earlier this week, the and should actually be an or that was an error in drafting. And so that that would actually need to be severe or pervasive, which is the judicial standard. And the severe or pervasive really comes into the hostile workplace analysis where courts are looking at whether the discrimination created a hostile work environment. And board talked a lot about her concerns with the severe or pervasive. This is commonly used as a standard in determining if workplace harassment based on a discriminatory reason created a hostile work environment. And so what this would do is do away with the severe or pervasive standard and leave courts to answer the question of was that discrimination that occurred, not was the discrimination so severe or pervasive that it created a hostile work environment. So it would essentially make it easier to prove unlawful workplace harassment and discrimination. Does that make sense to everyone? Okay. And then this is qualified by the final clause here, line seven to nine, behavior that a reasonable employee with the same protected characteristic would consider to be a petty slight or a trivial inconvenience shall not constitute unlawful harassment or discrimination. And so what this is basically saying is that if it's a petty interaction in the workplace as sometimes occurs, it's not discrimination where what we're looking at is something that's more serious. And it's asking the courts to apply a reasonable person standard, which is something we commonly ask the courts that you know in law school, we talked about how there is this imaginary reasonable person that the courts are often asked to look at and say, well, would a reasonable person standing in that same place say this is, you know, this behavior is extreme or this behavior crosses into discriminatory behavior. And if the answer to that is no. And in this case, you know, they're basically saying, if that reasonable person would say, you know, this is really just a trivial inconvenience, then the court at that point would say this doesn't cross to the level of discrimination. So it's it's qualifying how much easier you would be making it to prove workplace discrimination. Do you have another question representative blimly or is that hand from before? Oh, it's a legacy hand. Sorry. Okay, no problem. Okay, so the now we're moving into the definitions for workplace harassment. And I'm going to just skip ahead here to page five, line four, sexual harassment need not be severe and it should be or pervasive in order to be unlawful pursuant to this chapter. And again, this this gets to really the hostile or offensive work environment, which is the the sort of third category of sexual harassment after that what's commonly known as quid pro quo sexual harassment, where it's, for example, sexually harassing behavior where the acquiescence is in exchange for some sort of benefit like a promotion or job assignment or something like that. And then on line seven through 12, we're defining what harassment is. And this would provide that just harassment as a form of discrimination. And it's unwelcome conduct based on a protected category that substantially interferes with the employee's work performance or creates a work environment that is intimidating hostile or offensive. And so this language is it's actually used in the state house or the house discrimination policy. And so it's a common discrimination of harassment. The key here is that it substantially interferes with work performance, or creates a work environment that is intimidating hostile or offensive. And that's where you would get into again that severe or pervasive question under existing case precedent. And what this is saying is that you would, you wouldn't necessarily have to find that it's severe or pervasive in order to find that it creates an intimidating hostile or offensive working environment. The section three moves us into the public accommodations law. And this would again add that finding language where the general assembly finds that claims of unlawful discrimination within the public accommodations and housing law are rarely appropriate for summary judgment. The next changes are just technical until we get down to subsection D here on page six, where again, we're saying we're adding the shall be construed liberally. And then any exceptions and exemptions would be construed narrowly. So again, adding the construction language to the law here like we did for employment law. In the definitions, we are adding the definition harass. It's worth noting here that harass is engaging an unwelcome conduct based on a protected class that substantially detracts from undermines or interferes with the person's terms, conditions, privileges or protections in the sale or rental of a dwelling or other real estate, or in the provision of services or facilities in connection with the sale or a rental of a dwelling or other real estate. So the harass language is being applied to the housing discrimination law here. It's not being applied to the public accommodations law. And so public accommodations law generally prohibits someone who operates a place of public accommodation, which could be a retail store, it could be a restaurant, it could be town hall from denying someone the services or goods or facilities offered by your place of public accommodation on the basis of a protected class. So there you wouldn't necessarily get into the harassment aspect, whereas you might get into that with the sale or rental of a dwelling unit. And then it adds in the notwithstanding any judicial precedent, it would not need to be severe or pervasive to be unlawful. The final change here is in the education law. So this may need to go to the education committee if you move it forward with this section in it. And what it does, it amends the definition of harassment for purposes of discrimination in school. And it says that notwithstanding any judicial precedent to the contrary, does not need to be as severe and it should be or instead of and pervasive to constitute harassment. The final section in the bill is creating a uniform statute of limitations for actions based on discrimination. So the, as we discussed the other day, currently if you file an action for employment discrimination or housing or public accommodations discrimination, you have a three year or a six year statute of limitations depending on whether your claim is for personal injury or for economic injury. And so what can sometimes happen is that someone files their claim late, so say at four years, and so they can only allege one type of injury and they can't allege both. Whereas if they filed it two and a half years, they could allege both personal injuries and economic injuries such as loss of pay, loss of benefits, loss of other compensation and the employment context. So what this would say is that for everything you're using the longer six year statute of limitation for these discrimination claims. Questions? I know your next witness is here, so. All right. Well, thank you for the walkthrough. I mean, represent a trial. Yeah, I was just going to say that I've never been a fan of a reasonable person because what's reasonable to me may not be reasonable to you. We're leaving it up to a judge to determine what our personal opinions are. So I mean, I've always objected to it and primarily it appears in criminal law relatively often and I've just always had a problem with it, but I don't think it's worth removing it. I think it probably belongs here. We are asking for reasonable people to make reasonable decisions. Mr. Chair, you are muted. Yeah. Zoom is telling me that now. All right. Thank you, Chip. Thanks, everybody. Thanks, Tamion, on this bill. Clearly, there's a lot of questions just about, which I anticipate on this bill just because it's stepping through some interesting language and getting the clarifications on what stuff like reasonable person is or what we've asked is really going to be important to understand the context as we move forward with it. With that, let's take a five minute break and be back at two o'clock.