On June 28, 2023, Governor Phil Scott signed into law a bill that changes the current Workplace Discrimination Laws in Vermont. The bill was sponsored by Sen. Kesha Ram Hinsdale (D, Chittenden-Southeast) and sent to Governor Scott’s desk on June 22nd.
Miscellaneous Changes
The bill makes several notable changes, including:
- Making it explicitly unlawful for an employer to “harass or discriminate” against an employee based upon a protected characteristic. (Previously, case law had held that harassment based on a protected characteristic is a form of discrimination, but the statutory language did not include the word “harass.”)
- Explicitly prohibiting pay discrimination based on sex, race, national origin, sexual orientation, gender identity or disability. (Previously, the statutory language only expressly prohibited pay discrimination based on sex.)
- Prohibiting agreements which settle claims of discrimination from including clauses which prohibit the complaining employee from working for the employer or an affiliate.
New Legal Standard for Harassment
The bill also creates a new legal standard for harassment. The bill modifies the existing law to include:
- Harassment or discrimination no longer must be “severe or pervasive” to be unlawful.
- Harassment is now defined as unwelcome conduct based on an employee’s protected characteristic that “interferes with the employee’s work or creates a work environment that is intimidating, hostile or offensive”.
- Conduct may now be unlawful unless a “reasonable employee with the same protected
characteristic would consider [the conduct] to be a petty slight or trivial inconvenience”. - Whether the conduct constitutes unlawful harassment is determined based on the totality of the circumstances. Both an objective analysis of allegedly harassing conduct, as well as the subjective effect the conduct has on a particular employee, are likely relevant.
- A single incident may now constitute unlawful harassment.
- Multiple incidents will be viewed in the aggregate, not in isolation.
- Conduct may constitute harassment regardless of whether:
- the complaining employee is the individual being harassed
- the complaining employee acquiesced or otherwise submitted to or participated in the conduct
- the conduct is also experienced by others outside the protected class involved in the conduct
- the complaining employee was able to continue carrying out their duties
- the conduct resulted in a physical or psychological injury
- the conduct occurred outside the workplace
Implications for Employers and Employees
This change means it will be easier for employees to bring lawsuits and prove unlawful harassment under State law than it is under federal law. One single incident is now more likely to constitute unlawful harassment. Consequently, employers should review their existing harassment policies and practices for compliance with this new standard and should consider reviewing and revising existing harassment training or offering harassment training to all employees. Employers should also ensure that supervisors understand their obligations to report incidents of harassment or discrimination that are disclosed to them, even if they seem inconsequential.
For questions, contact a member of our Labor & Employment Law Team.
