 Great. Thank you. We're back here now on age 329 and age 329 is an accurate date for many of the prohibitions against discrimination and we have had Mr. Ellis penciled in a while ago to testify on this and couldn't fit it in and he just reminded us of that this week. So I wanted to bring Steve back to testify on 329 and then with the time that we have available and then this afternoon, I really wanted to start. Well, this afternoon we have we have age 96 penciled in, but I also think we can free form on this and have a conversation on this as well. But I really want to start pulling the bill apart in a separate component so that we can really understand and give get back into the context of the bill so that comments by Mr. Ellis or what we've heard previously start to fit back into place. And then we can revisit some of that testimony to just sort of get a clarification. So with that, yes, I did have a couple of. Steve, welcome back. Thank you. And I've got my coffee as well. So hopefully I won't be speaking too quickly. And thank you for for inviting me to offer some comments on this bill, Mr. Chairman and members and Mr. Wild, thank you for marshaling this whole process. I've not yet commented on on this particular bill and I was scheduled to talk to you a week or so ago and actually I'm glad I had a little bit of extra time to study this because having taken made good use of that time. I think I do understand what the bill is attempting to accomplish. And I think by and large, it does that with a couple of of important points that possible exceptions to that that I'd like to talk about. You know, essentially what it does is it codifies existing common law on on a number of issues. It confirms that harassment based on protected criteria is a form of unlawful discrimination that's been the law for decades. It it provides a uniform six year statute of limitations for all claims under the Fair Employment Practices Act, which I think is a very helpful and unnecessary clarification. Presently, there are two different statutes of limitations that potentially apply to discrimination claims. It makes sense that there be one and it makes sense that it be the six year statute rather than the three year statute. The again, the insertion of the words harass into the pertinent provisions of the statute effectively just codifies what's already the law in the common law. And there's another, I think, really, did somebody have a question? No, there's another, I think, really helpful provision in here, which is the clarification that harassment need not be severe and pervasive. This has actually been a source of some confusion in the case law on behalf of both litigants and courts, frankly, for many years, even though the the legal standard under the the controlling original precedents for hostile work environment claim required that the conduct be severe or pervasive. Litigants started arguing and courts started accepting the premise that it needs to be both severe and pervasive. And with that understanding, courts were basically excusing or dismissing claims that alleged, for example, a single incident of unwelcome groping or a single use of the N word on the grounds that, you know, regardless of how severe it may have been, it's not pervasive and therefore it's not a hostile work environment claim and it's not actionable harassment. This bill clarifies that the conduct doesn't need to be severe and pervasive. It can be either. And I think that is a very useful clarification. And on the other side of the equation, the bill provides language in Section J three that provides that a reasonable employee that the act is not intended to cover conduct that a reasonable employee with the same protected characteristics would consider to be petty or slight or trivial. And again, that's consistent with existing case law that conduct that is petty or slight or trivial doesn't rise to the level of actionable harassment. So to that extent, those two provisions in in the bill provide, I think, very useful clarification and codification of the common law on those issues. I I I understand that it may have been suggested to this committee that that language was a mistake. The and that what it should have been that it was intended to mean that the conduct doesn't need to be severe or pervasive. And the suggestion has been made that maybe the word and should be changed to or. I think that would be a huge mistake and it would be actually contrary to what I see as the intention of this bill. It would conflict with four ninety five J three because what does it mean to say it doesn't have to be severe or pervasive, but it can't be petty or trivial. I mean, if you think that kind of legislation is going to eliminate litigation, it's not. It's going to generate lots of litigation over that issue and create lots of confusion. So I think it's fine just the way it is to provide that the conduct doesn't need to be severe and pervasive and to also have this this caveat that are also it can't be slight or trivial. So I do have a couple of concerns about a couple of other provisions in the bill four ninety five. I. I one, I think I'd have to go back and check, but it's the provision that says that an employee's decision not to pursue an internal grievance process shall not be determinative in determining whether there's been a violation. This appears to be an attempt to address the so-called Gallagher, Farith, good faith defense, which is comes out of a couple of United States Supreme Court decisions. And basically, the principle is if you're going to charge an employer with legal responsibility for harassment, the employer needs to have known about it in order to be responsible for. So if you're talking about executive or supervisor harassment, we're going to impute their knowledge to the employer. But if you're talking about non-supervisory behavior, a co-worker, how is it fair to charge an employer with responsibility for that if the employer is not even aware of it? And so under the the Gallagher fair, I may be saying that wrong. It's been a while since I've since I've looked at these cases. The good faith defense provides that if an employer has a policy that permits that provides a procedure for an employee to report the harassment and it's a co-worker and not a supervisor, the employee's failure to report it may constitute a defense if the employer isn't otherwise, if there's no other evidence that the employer is aware of the conduct. So I'm just my problem with this provision is I'm just not sure what it means. And if I'm not sure what it means, then I can guarantee you there's going to be litigation around it. So what does it mean to say an employer's decision not to pursue an internal grievance process? Does the employee have to prove that they actually decided not to pursue that process? Or does the employer have to prove that they didn't actually decide they just failed to do it? So what does that mean? It doesn't mean the same thing as an employee's failure to pursue a grievance process. And what does it mean to say it shall not be determinative? Does that mean that an employer can never argue that because we had a policy that the employee could have followed and it says that there would have been no retaliation. If you did to report this, the employee was aware of that. They signed off on it and they failed to follow that policy. And therefore, the first time we ever found out about this was when the employee sued us for it. Does that mean that the employer can't raise that as a defense? So I think there's issues around that language that haven't perhaps haven't been fully thought through that that needs some more attention. And I'm not sure, frankly, if it's necessary at given what's already in the law. And finally, I have real concerns about the statute about the legislature trying to instruct courts in future cases that FIPA claims are rarely appropriate for summary judgment. That really strikes me as an unwarranted legislative intrusion into both the process of judges deciding individual cases and also the overall management of the docket. Summary judgment is already extremely difficult to get for an employer in a in a discrimination case. There's a very well developed body of case law around this where if the employee can provide a a prima facie case of discrimination, which is not a high hurdle at all. Basically, if the employee is a member of a protected class and has been subjected to an adverse employment action and there's some plausible connection between the two, then the employer has to come forward with a legitimate nondiscriminatory or non retaliatory explanation for the employment action. And if the employer is able to do that, then the employee has the burden of proving that the employer's explanation is a pretext and that the real motivation for the employment action was discrimination or retaliation, some kind of invidious motive. And having been on both sides of summary judgment motions, meaning I represent both employees and employers, I can tell you that it's very difficult for an employer to get summary judgment. And if an employer does get summary judgment, it's because under the legal standard, the judge overseeing the case has determined that based on all of the first, first of all, that the parties have had an adequate opportunity for discovery. And secondly, the based on the undisputed facts that that the employer is entitled to judgment as a matter of law. If there's any dispute about any facts that a reasonable jury could construe in favor of the employee, the employer can't get summary judgment and won't. And so employers summary judgment motions are rarely granted. But what the what the process does is it gives the courts the ability to weed out cases that really shouldn't be going to trial. If, in fact, based on the undisputed facts, the employee can't win. The summary judgment process itself provides a very useful mechanism both for employers and employees from the employee's perspective. If the employer files a motion for summary judgment and the motion is denied, which is what happens most of the time. That means the court has decided that there are issues here that a jury can decide in favor of the plaintiff. At that point, the case often settles because the employer is now getting nervous that if they take this case to trial, they might lose and they're going to be responsible for damages and attorney's fees. So it creates an opportunity for a voluntary settlement without a trial. Um, it also requires it's a way that the employee can make the employer or vice versa put forth their best evidence, because if you're confronted with a summary judgment motion, you'd better put forth your best evidence because if you hold anything back and you lose on summary judgment, you wasted an opportunity to get the case resolved in your favor as a matter of law. So so the summary judgment process really does provide a really helpful and useful mechanism. And my concern is if you put this kind of language in the statute, every plaintiff opposing a summary judgment motion is going to cite it. And they're going to say, look, the legislature has told you that you shouldn't grant summary judgment motions in these cases. And the judge is going to say, oh, OK, well, we'll just let it go to trial. And so what's going to happen is you've lost the opportunity to really flesh out the record that to educate both parties about where this case is going and to give the judge an opportunity to decide whether there's actually a case to be tried here. So that that's my concern is that if there's a statute that instructs judges in advance that summary judgment is rarely appropriate, then the denial of a summary judgment motion simply isn't going to mean anything. You know, it's not going to have the same significance that it has right now that a judge has looked at this, looked at it carefully and decided that there are issues here that need to go to trial. And therefore, the summary judgment motion is denied. If the summary judgment motion is being denied, simply because the legislature has told the judges, we think you ought to deny these motions as a matter of principle, it's simply not going to have the same the same impact. So that's basically all the the the comments I had on this legislation. I'd be happy to answer any questions. I represent a boomer. Yes, hi, thanks so much. I am curious about. I want to go back to the severe or pervasive versus the severe and pervasive because earlier before you got to that, you were talking about. You're talking about, say, an instance, maybe one instance in which somebody had been grote and would that. I think the idea behind what is in age 329 is to enable someone to bring forward a complaint in that instance. But but is that pervasive if it has happened one time? Well, that the way that this legislation is drafted right now, it doesn't have to be it can be severe. It doesn't that the legislation provides that it doesn't have to be severe and pervasive, right? But which means it can be either. So even if even if it's not pervasive, if it's severe, it's still actionable under this statute. And I think that's the purpose of this language, the way it's drafted right now is to make that clarification, because as I said, there has been some confusion in the case law on the part of litigants and courts who have misconstrued the standard to require both severe and pervasive. And this this legislation says it doesn't have to be severe and pervasive. It can be either. Which is something that you support. Absolutely, I support that. And particularly given that there is a floor in this in this bill as well, that it can't be petty or trivial. Right. Thank you. Just want to make sure I understood your point. Yeah, I support that from both the perspective of employers and employees. I think it makes a lot of sense. And as I said, it is, in fact, the law. The case is saying that it has to be both severe and pervasive are mistaken and they get reversed. Represent a final. Maybe that cleared up something for me. But when I first read this, I read it to be that harassment need not to be need not be severe and pervasive. And I. Was thinking. That a case. Didn't have to be severe and or it didn't have to be pervasive. But you say that there is a provision in this that it can't be petty or what was the other term you used? I'm sorry, or trivial. So where could you point me to that, please? That that is in 495, J3, page four, one, so. Thank you. Thank you. Right. And so my concern is that I heard somebody suggest that you ought to change the language in this bill to say that the harassment need not be severe or pervasive. I think that would be a huge mistake. I think it accomplishes the intended purpose by saying that it need not be severe and pervasive. What is telling us is it doesn't have to be both. And that and that is that is the correct statement of of the law on this question. That if I severe, severe harassment, a single instance of severe harassment ought to be actionable. And, you know, conversely, pervasive harassment that may be less severe ought to be actionable. As long as it's not trivial. Thank you for pointing that out. And in regards to the the trivial, the petty, slight or trivial inconvenience, I find that whole phrase, page four, number three, behavior that a reasonable employee, et cetera, et cetera, would consider to be petty, slight or trivial inconvenience. I would love to have a definition of a reasonable employee or a petty, slight or trivial inconvenience, because to me, that just doesn't sound like something that should be in law. I'm not an attorney, but I don't know how you define that. Well, frankly, I agree with you. I don't think it's necessary. I think the the provision that the conduct doesn't have to be both severe and pervasive is sufficient and we can leave it up to the courts to decide whether the conduct that issue is either severe or pervasive or both sufficiently to to constitute actionable harassment. I mean, the common law already says that it can't be objectively petty or trivial. And I do understand the impulse to try to put some definitive language around that whole concept. And but I do share your concern that this language, you know, first of all, who has the burden of proof on this under the statute as is presently written, who has the burden of proof? Does the employee have to prove that a reasonable employee with the same protected characteristic would not consider this to be trivial or petty? Or does the employer have to prove that a reasonable employee with the same characteristics would consider to be petty? And and how do you prove that? Right? How do you? Thank you. Represent a trial that collecting. Thank you, Chair Steven. So I would have to agree with your analysis on summary judgment. Steve, I think that you have hit it on the head. And what I would have been thinking of since this bill was introduced, you know, summary judgments. I worked in criminal law for 35 years and it's similar to a prima facie motion. And they are rarely granted, but they really are necessary to vent the evidence and get a little bit more information. And I agree that a loss of a summary judgment by a defendant certainly moves them in the direction of settlement. So I would I would have to agree with your analysis on that. Thank you for making it pretty clear. Real quick, I should say. Thank you. Oh, thank you for coming in. Mr. Ellis, my pleasure as always. Thank you for inviting me. My question is around the pursuing an internal grievance. What is the common law? I think that's a term you use. So I don't know if I'm using it correctly, but if that wasn't in there, what happens in these in these issues of discrimination claims? If someone does or does not pursue an internal claim? And is that ever determined faster in the outcome? First of all, I did miscite the standard in my written testimony. And I apologize. It's actually Faragher Elriff is is the the two cases that generated this defense and not Gallagher, whatever I said in my memo. But but basically the concept is this, that you're not suing usually the employee is not suing the harasser. They're suing the employer, right? Because they're saying I've been harassed, it's created a hostile work environment for which you, the employer, are responsible, right? So so the legal question is under what circumstances should an employer be responsible for the conduct of an individual employee and under the current law, if the conduct is by a supervisory employee or a member of management, the knowledge of that person that the harassment has occurred is imputed to the employer because the person is high enough up in the in the chain of command that the employer is presumed to have knowledge of this for somebody who is not in that category, a co-worker, simply a co-worker of the same classification of, you know, for example, let's take a an assembly line. You've got two people on the assembly line. They're they're both hourly workers, one of them harasses the other. Should the victim of that harassment be able to sue the employer for that? And basically what the law says is, well, if the employer knows about it or has a reason to know about it or should know about it, then yes. Then because the employer's failure to do something about it amounts to condoning it. But if there's no reason to think that the employer would know about this, unless it's been reported to the employer, then it's not fair to impose liability on the employer. And so the the the the Faragher L. Defense says that if an employer has a clearly articulated policy, written policy that instructs employees what they need to do to report this kind of conduct to the employer and the employee fails to follow that policy, the employer may have a good faith defense that even if this happened, we're not liable for it because we didn't know about it. And the reason we didn't know about it is because you didn't tell us about it, even though we had a written policy that told you how to do it. There are there are still ways around that. If you can prove that the employer knew about it, even though I didn't follow the policy, the employee can still prevail, but it does provide a defense to the employer. And so my concern about this language here is that it might be construed to take away that defense altogether. And frankly, I'm not sure really what it means. You know, what does it mean to say if the employee decides there are other kind of whistleblower statutes that have language that say if the employee has a good faith reason for not following that policy, then perhaps the employee, for example, if you look at the Vermont Health Care Whistleblower Protection Act, it has language to that effect. You know, generally, the employee will be required to follow the internal policy unless they have a good reason for not doing that. So it's it's not clear to me what this means. You know, the employee decides not to follow for any reason. You know, what if the employee decides not to follow up because they want to ambush the employer with a lawsuit over something that the employee has no reason to know even happened because nobody ever reported it? That doesn't seem reasonable. And then what does it mean to say that it shall not be a determined factor? Well, that suggests that it could be some kind of a factor. So I just think, you know, I understand the concern here that you don't want it to be an absolute slam dunk shutting the door on a claim simply because the employee didn't follow the internal policy. But I think a lot more thought needs to be put into this if we're going to try to legislate around that issue. I guess I also heard you say. If we were silent on this issue. Would that change anything with common law practice now? If you're silent on it, if you're silent on that issue, the courts are still going to apply the Faraday-Elerith defense as has been developed in the case law. And it's going to the courts are going to allow an employer to demonstrate that they had a clearly articulated policy for the employee to report it, that the employee failed to use that policy. And as a result, the employer didn't know about this. That's the existing law. OK, thank you. All right, any further questions for Stephen right now? Very helpful, Steve. Thank you so much. Thank you for inviting me. Stay warm and avoid the storm if you can. So take care. We will. Thanks, Steve. All right, committee, I think. It's 11-33. I think we just finished today. This was a lot of talking. I'm sorry to kept you here. So what about Damien? Damien, I actually would have a question for Damien. We you introduced this bill, you know, came back very soon and said, and we talked about the and and the gore. And this is the first time I've heard anyone saying that and is actually could be considered correct. Yeah, so there is a. There are definitely instances where people have argued, well, it needs to be severe and and there there have been cases that have gone up on appeal and then overturned circuit courts of appeal and then other appeals courts in the country where even the district court maybe got the standard wrong or they were construing the standard incorrectly. So I think there is certainly an argument that saying it need not be severe and pervasive would be a way to help clarify the existing law. I think if you remember back or Yang mentioned the Virginia legislation that's working its way through Virginia's legislature right now, it's it's on the similar topic. And, you know, they approached it somewhat differently, but they added language saying and it's basically construction guidance for construing the statute, saying a determination should be made on the basis of the record as a whole, according to the totality of the circumstances and a single incident may constitute workplace harassment, meaning you could have a single severe incident that constitutes workplace harassment, which is consistent with existing law. So it was interesting yesterday. I went through a number of cases on this and courts across the country. The rulings and especially over time, the rulings have kind of come out across the board on certain instances, but there was one case that sticks out in my head where it was a case of sex discrimination and it dealt with a woman fire lieutenant where the incident of harassment occurred in the presence of her subordinates. And in that case, the court said the context of the harassment, the facts of how it occurred and the fact that it was in the presence of her subordinates who need to be willing to trust her judgment when they're fighting a fire made this based on the totality of the circumstances, a severe case of harassment, even though there was only one instance. So and then in other instances, there are cases where they've said, no, this was an isolated incident. It didn't happen again. And it wasn't sufficiently severe as an isolated incident to become unlawful harassment, even though this was very distasteful behavior. So that that is that is accurate with the case law. And there are a number of the decisions yesterday that I read. The court saying, you know, Party X is arguing that the behavior needed to be both severe and pervasive in order to prevail. And that is not our standard. The standard is severe or pervasive. So, you know, I think there obviously I can't advocate one way or the other on the bill, but there certainly this is an area of law where there is confusion over whether the standard is severe or pervasive or severe and pervasive. In this case, it's my understanding that the the sponsor's goal was to say severe or pervasive, not severe and pervasive, as I drafted the bill. But certainly there's an argument that can be made. And Mr. Ellis made it very eloquently that severe and pervasive would actually hopefully clarify the law for both lit against employers and employees who are experiencing this and trying to understand what their rights are. But that's that's right. So now we have two compelling arguments for either for either one. The same end, right? Well, to achieve clarity, I think that I think is the inclusion of this section is to achieve clarity at the state level that's coming out in a fairly non clear way from the federal, as you said, from the collection of decisions. And so is this a way, you know, is the point of that clause in this proposal to give our jurors prudence a more definitive way of looking at it rather than leaving it up to this well on one hand or on another. And representative. Well, I was just going to say, I think that if the goal is to not have it be considered severe and pervasive, that that is not what you have to mean. That's exactly what we're saying. And if we change this into an or, then we're muddying it even further because we're saying it need not be severe and pervasive. We're stating real clear this is what it need not be. And I just feel like if we do change it to or, then it's it's muddy again. It's like, oh, it doesn't have to be either. Representative Wallace, I think I'm going to put it here a little bit. I think part of this is the inadequate field language that very clearly, if you say it does not need to be severe and pervasive, you're saying it can be exactly severe. Or pervasive. Exactly. So basically, you say the same thing, but different expressions. When obviously we're seeing it doesn't really mean the same thing. It's just not an adequate and all the way to phrasing that in English. Would it help us all if we actually saw what it is we're trying to refrain because it is federal citation, right? I mean, that's is it in federal law that it says no. So this has come out of the common law, the case law around the federal statute. OK, so what what happens is there's there are, you know, the sort of really clear instances of discrimination that we might think of when we're in grade school where, you know, Jim Crow laws and that sort of thing where you're clearly singling out a group for disparate treatment. OK, so you're you're basically saying this job is only open to men or this job. You know, it's only open to people in this group or we don't hire people in this group. These are the common sort of historical instances of overt discrimination that we think of. The next category is disparate impact where you have a policy that on its face is neutral, but has the effect of discriminating against people. You must be six foot four to work in this job. Ninety nine point something percent of the people who are eligible are going to be men. So that you end up with something like that. The the next group and what we're talking about is hostile work environment. And so with hostile work environment, because you don't have this sort of clear ability to compare the groups either clearly the singles out a group or clearly this treats one group in a negative manner versus the other groups. Here you're looking at did the work environment were the conditions of the work environment altered in a negative way for the employee? And there's argument over. Over what that should mean. But the current case law is that that it needs to be sufficiently severe or pervasive to have that to alter the terms and conditions of the plaintiff's employment and create a hostile or abuse of working environment. And I'm drawing that from Harris before with systems, which is one of the cases that went up to the US Supreme Court. So typically when they're looking at that, four of the things they'll look at are the frequency of the conduct, the severity of the conduct, whether the conduct might have been physically threatening or humiliating or merely just an offensive utterance. So we've got the threatening and humiliating on one hand and on the other hand, isn't an offhand comment, something like that, which by itself is offensive, but may not be sufficiently severe unless this becomes pervasive within the workplace. And then whether the conduct unreasonably interferes with the employee's job performance. So these are the four things they look at at trying to determine whether something is severe or pervasive in the work environment. Obviously, this gets incredibly fact specific. And there are cases where, you know, any two of us in this room could look at the facts and we might say, oh, yeah, that's that's a hostile work environment and the court disagreed with us. Or we might say, no, that's not a hostile work environment and the court disagrees with us or where we might disagree with each other over whether that crosses the line. And that's I mean, that's part of the tricky thing with when you're looking at case law, because these are human beings, they have as much as they try to be impartial, they bring their life experience and their perspective to the cases. And you're also dealing with the fact that these cases are argued by human beings, the witnesses are human, sometimes, you know, the way a case is written up by one by one entity will make it, you know, we'll slant the way it appeals versus how the evidence was presented in court. So there there are a lot of it is it ends up becoming fact specific. And as much as we try to be objective, it is a somewhat subjective standard. But it typically takes in the totality of circumstances. What one of the things you've seen in states like, for example, California, and I'm not saying we should adopt California's law, but one of the things they've adopted are, you know, things saying, you know, a single incident of harassing conduct may be sufficient, sufficient to create a trialable issue of hostile work environment, if it unreasonably interfered with the plaintiff's work and what performance are created in intimidating hostile or offensive working environment. So in other words, if it's sufficiently severe to do that, a single incident could be enough. And so that's guidance they provided to try to clarify this severe or pervasive issue and and then they also say it depends upon the totality of the circumstances. And then they can say discriminate. Another thing they say are, you know, and this is something that's been litigated. So what California has done is they pointed to cases where they like the legislature approves of the holding of the court in that case. And so there was a case called read the Google where they said discriminatory remarks, even if not made directly in the context of an employment decision may be relevant for circumstantial evidence of discrimination. You know, so these could be considered by the court as evidence. So again, this is kind of getting out. There are different ways to approach this. So you could say it may not be severe and pervasive, but you may want to clarify that too, to say what we're trying to say here is a single incident if sufficiently severe can constitute unlawful discrimination or harassment. So that was a very long one. Damien, I just want to put out Steve Ellis. You're here twice now. Have you clumbed or? Well, Damien's there on the board, too. It's just a little religion is no matrix like I don't know. All right, let's let's let's just end our conversation here. My brain is pretty full on this stuff.