Vermont Employment Discrimination Law
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Discrimination by employers is prohibited in the following sections of the Vermont Statutes
Annotated.
Fair Employment Practices Act
- 495. Unlawful employment practice.
- 495a. Persons entering into contracts with this state.
- 495b. Penalties and enforcement.
- 495c. Application.
- 495d. Definitions.
- 495e. Restitution.
- 495f. Exemptions.
- 495g. Provision applicable to college professors.
- 495h. Sexual harassment.
Genetic Testing and Information
- 9333. Employment conditions.
Discrimination Against Military Service Personnel
- 491. Absence on military service and training; employment and reemployment rights
- 492. Rights and benefits
- 493. Enforcement
Fair Employment Practices Act
495. Unlawful employment practice.
(a) It shall be unlawful employment practice, except where a bona fide
occupational qualification requires persons of a particular race,
color, religion, national origin, sex, sexual orientation, gender
identity, ancestry, place of birth, age, or physical or mental
condition:
(1) For any employer, employment agency, or
labor organization to discriminate against any individual because of
race, color, religion, ancestry, national origin, sex, sexual
orientation, gender identity, place of birth, or age or against a
qualified individual with a disability;
(2) For any person seeking employees or for any employment
agency or labor organization to cause to be printed, published, or
circulated any notice or advertisement relating to employment or
membership indicating any preference, limitation, specification, or
discrimination based upon race, color, religion, ancestry, national
origin, sex, sexual orientation, gender identity, place of birth, age,
or disability;
(3) For any employment agency to fail or refuse to classify
properly or refer for employment or to otherwise discriminate against
any individual because of race, color, religion, ancestry, national
origin, sex, sexual orientation, gender identity, place of birth, or
age or against a qualified individual with a disability;
(4) For any labor organization, because of race, color,
religion ancestry, national origin, sex, sexual orientation, gender
identity, place of birth, or age to discriminate against any individual
or against a qualified individual with a disability or to limit,
segregate or qualify its membership;
(5) For any employer, employment agency, or labor
organization to discharge or in any other manner discriminate against
any employee because such employee has lodged a complaint of
discriminatory acts or practices or has cooperated with the attorney
general or a state's attorney in an investigation of such practices, or
is about to lodge a complaint or cooperate in an investigation, or
because such employer believes that such employee may lodge a complaint
or cooperate with the attorney general or state's attorney in an
investigation of discriminatory acts or practices;
(6) For any employer, employment agency, labor organization
or person seeking employees to discriminate against, indicate a
preference or limitation, refuse properly to classify or refer, or to
limit or segregate membership, on the basis of a person's having a
positive test result from an HIV-related blood test;
(7) For any employer, employment agency, labor organization
or person seeking employees to request or require an applicant,
prospective employee, employee, prospective member, or member to have
an HIV-related blood test as a condition of employment or membership,
classification, placement, or referral;
(8) For any employer, employment agency, labor organization,
or person seeking employees to discriminate between employees on the
basis of sex by paying wages to employees of one sex at a rate less
than the rate paid to employees of the other sex for equal work that
requires equal skill, effort, and responsibility, and is performed
under similar working conditions. An employer who is paying wages in
violation of this section shall not reduce the wage rate of any other
employee in order to comply with this subsection.
(A) An employer may pay different wage rates under this subsection when the differential wages are made pursuant to:
(i) A seniority system.
(ii) A merit system.
(iii) A system in which earnings are based on quantity or quality of production.
(iv) Any factor other than sex.
(B) No employer may do any of the following:
(i) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.
(ii) Require an employee to sign a waiver or other document
that purports to deny the employee the right to disclose the amount of
his or her wages.
(iii) Discharge, formally discipline, or otherwise
discriminate against an employee who discloses the amount of his or her
wages.
(b) The provisions of this section shall not
be construed to limit the rights of employers to discharge employees
for good cause shown.
(c) The provisions of this section prohibiting discrimination
on the basis of age shall apply for the benefit of persons 18 years of
age or older.
(d)
(1) An employee shall not have a cause of
action in negligence for any injury occurring to the employee on the
account of an employer complying with subdivisions (a)(6) and (7) of
this section.
(2) A person shall not have a cause of action in negligence
for any injury occurring to the person on the account of an employer
complying with subdivisions (a)(6) and (7) of this section.
(e) The provisions of this section prohibiting discrimination on the
basis of sexual orientation and gender identity shall not be construed
to prohibit or prevent any religious or denominational institution or
organization, or any organization operated for charitable or
educational purposes, which is operated, supervised, or controlled by
or in connection with a religious organization, from giving preference
to persons of the same religion or denomination or from taking any
action with respect to matters of employment which is calculated by the
organization to promote the religious principles for which it is
established or maintained.
(f) The provisions of this section prohibiting discrimination
on the basis of sexual orientation or gender identity shall not be
construed to change the definition of family or dependent in an
employee benefit plan.
(g) Notwithstanding any provision of this subchapter, an employer shall
not be prohibited from establishing and enforcing reasonable workplace
policies to address matters related to employees' gender identity,
including permitting an employer to establish a reasonable dress code
for the workplace.
495a. Persons entering into contracts with this state.
The state of Vermont and all of its contracting agencies shall include in all contracts hereafter negotiated
a provision obligating the contractor to comply with this subchapter in connection with any
work to be performed in this state and requiring the contractor to include a similar provision in all subcontracts
for work to be performed in this state.
495b. Penalties and enforcement.
(a)The attorney general or a state's attorney may enforce the provisions of this subchapter by restraining prohibited
acts, seeking civil penalties, obtaining assurances of discontinuance and conducting civil investigations in accordance
with the procedures established in sections 2458-2461 of Title 9 as though an unlawful employment practice were
an unfair act in commerce. Any employer, employment agency or labor organization complained against shall have
the same rights and remedies as specified therein. The superior courts are authorized to impose the same civil
penalties and investigation costs and to order other relief to the state of Vermont or an aggrieved employee for
violations of this subchapter as they are authorized to impose or order under the provisions of sections 2458 and
2461 of Title 9 in an unfair act in commerce. In addition, the superior courts may order restitution of wages or
other benefits on behalf of an employee and may order reinstatement and other appropriate relief on behalf of an
employee.
(b) Any person aggrieved by a violation of the provisions of this subchapter may bring an action in superior court
seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution
or wages or other benefits, reinstatements, costs, reasonable attorney's fees and other appropriate relief.
(c) Any employer who violates the provisions of subdivision 495(a)(8) of this title shall be liable to any affected
employee in the amount of the underpaid wages and an equal amount as liquidated damages, in addition to any other
remedies available under this section.
495c. Application.
This subchapter shall not be construed as limiting the rights of employers to hire and fire and of labor organizations
to determine the membership as long as such rights are not exercised in violation of this subchapter.
495d. Definitions.
For the purposes of this subchapter:
(1) "Employer" means any individual, organization, or governmental body including any partnership, association,
trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic
or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail,
motor, water, air or express company doing business in or operating within this state, and any agent of such employer,
which has one or more individuals performing services for it within this state.
(2) "Employee" means every person who may be permitted, required or directed by any employer, in consideration
of direct or indirect gain or profit, to perform services.
(3) "Employment agency" means every person, corporation, association or governmental body representative
thereof engaged in the business of advertising for advising, classifying, training or referral of persons for employment
within this state, or which at the direction of any employer advertises, locates, advises, classifies, trains,
refers or selects persons to engage in any employment.
(4) "Labor organization" means any organization or association which represents not less than five employees
and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours, promotions, or other terms and conditions of employment.
(5) "Individual with a disability" means any natural person who
(A) has a physical or mental impairment which substantially limits one or more major life activities;
(B) has a history or record of such an impairment; or
(C) is regarded as having such an impairment.
(6) "Qualified individual with a disability" means an individual with a disability who is capable
of performing the essential functions of the job or jobs for which the individual is being considered with reasonable
accommodation to the disability.
A qualified individual with a disability does not include any individual who is an alcoholic or drug abuser whose
current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose
employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the
safety of others.
(7) "Physical or mental impairment" means
(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more
of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; or endocrine;
(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities;
(C) the term "physical or mental impairment" includes but is not limited to such diseases and conditions
as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.
(8) "Substantially limits" means the degree that the impairment affects an individual's employability.
An individual with a disability who is likely to experience difficulty in securing, retaining, or advancing in
employment would be considered substantially limited.
(9) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, working, and receiving education or vocational training.
(10) "Has a history or record of such an impairment" means that the individual has a history of, or has
been misclassified as having, a mental or physical impairment that substantially limits one or more life activity.
(11) "Is regarded as having such an impairment" means that the individual
(A) has a physical or mental impairment that does not substantially limit major life activities but that is
treated by an employer as constituting such a limitation;
(B) has a physical or mental impairment that substantially limits major life activities only as a result of the
attitudes of others toward such impairment; or
(C) has none of the impairments defined in subdivision (7)(A) of this section but is treated by an employer as
having such an impairment.
(12) "Reasonable accommodation" means the changes and modifications which can be made in the structure
of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer.
Reasonable accommodation may include:
(A) making the facilities used by the employees, including common areas used by all employees such as hallways,
restrooms, cafeterias and lounges, readily accessible to and usable by individuals with disabilities, and
(B) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices
and other similar actions.
(C) factors to be considered in determining whether an undue hardship is imposed by the requirement that reasonable
accommodation be made for an individual with a disability include:
(i) the overall size of the employer's operation with respect to the number of employees, number and type of facilities,
and size of budget; and
(ii) the cost for the accommodation needed.
(13) "Sexual harassment" is a form of sex discrimination and means unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual nature when:
(A) submission to that conduct is made either explicitly or implicitly a term or condition of employment; or
(B) submission to or rejection of such conduct by an individual is used as a component of the basis for employment
decisions affecting that individual; or
(C) the conduct has the purpose or effect of substantially interfering with an individual's work performance or
creating an intimidating, hostile or offensive work environment.
495e. Restitution.
The superior courts may order restitution of wages or other benefits on behalf of a class of employees similarly
situated, and may order reinstatement and other appropriate relief on behalf of a class of employees.
495f. Exemptions.
Notwithstanding any other provision of this subchapter, it is not unlawful discrimination on the basis of age
or disability for any employer, employment agency or labor organization to observe the terms of a bona fide seniority
system or any bona fide employee benefit plan, such as a retirement, pension or life or health insurance plan,
any of which is not a subterfuge to evade the purposes of this subchapter. No employee benefit plan, however, excuses
the failure to hire any individual. No seniority system or employee benefit plan shall require or permit the involuntary
retirement of any individual because of age. Mandatory retirement on account of age, necessitated under a police
or firefighter retirement system, is specifically authorized.
495g. Provision applicable to college professors.
Nothing in this act shall be construed to prohibit any institution of higher education as defined by section
1201(a) of the federal Higher Education Act of 1965 from retiring any employee who is serving under a contract
of unlimited tenure, who attains 65 years of age prior to July 1, 1982, or 70 years of age thereafter. Any employee
whose tenure contract is terminated may, in the discretion of the institution, be allowed to continue in the employ
of the institution on a nontenured basis.
495h. Sexual harassment.
(a) All employers, employment agencies and labor organizations have an obligation to ensure a workplace free
of sexual harassment.
(b) Every employer shall:
(1) Adopt a policy against sexual harassment which shall include:
(A) a statement that sexual harassment in the workplace is unlawful;
(B) a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment
or for cooperating in an investigation of sexual harassment;
(C) a description and examples of sexual harassment;
(D) a statement of the range of consequences for employees who commit sexual harassment;
(E) if the employer has more than five employees, a description of the process for filing internal complaints about
sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should
be made; and
(F) the complaint process of the appropriate state and federal employment discrimination enforcement agencies,
and directions as to how to contact such agencies.
(2) Post in a prominent and accessible location in the workplace, a poster providing, at a minimum, the elements
of the employer's sexual harassment policy required by subdivision (1) of this subsection.
(3) Provide to all employees an individual written copy of the employer's policy against sexual harassment.
(c) Employers shall provide individual copies of their written policies to current employees no later than November
1, 1993, and to new employees upon their being hired. Employers who have provided individual written notice to
all employees within the 12 months prior to October 1, 1993, shall be exempt from having to provide an additional
notice during the 1993 calendar year.
(d) The commissioner of labor and industry shall prepare and provide to employers subject to this section a model
policy and a model poster, which may be used by employers for the purposes of this section.
(e) A claim that an individual did not receive the information required to be provided by this section shall not,
in and of itself, result in the automatic liability of any employer to any current or former employee or applicant
in any action alleging sexual harassment. An employer's compliance with the notice requirements of this section
does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(f) Employers and labor organizations are encouraged to conduct an education and training program within one year
after September 30, 1993 for all current employees and members, and for all new employees and members thereafter
within one year of commencement of employment, that includes at a minimum all the information outlined in this
section. Employers are encouraged to conduct additional training for current supervisory and managerial employees
and members within one year of September 30, 1993, and for new supervisory and managerial employees and members
within one year of commencement of employment or membership, which should include at a minimum the information
outlined in subsection (b) of this section and the specific responsibilities of supervisory and managerial employees
and the methods that these employees must take to ensure immediate and appropriate corrective action in addressing
sexual harassment complaints. Employers, labor organizations and appropriate state agencies are encouraged to cooperate
in making this training available.
§ 495i. EMPLOYMENT BASED ON CREDIT INFORMATION;
PROHIBITIONS
(a) For purposes of this section:
(1) “Confidential financial information” means sensitive financial information of commercial value that a customer or client of the employer gives explicit authorization for the employer to obtain, process, and store and that the employer entrusts only to managers or employees as a necessary function of their job duties.
(2) “Credit history” means information obtained from a third party, whether or not contained in a credit report, that reflects or pertains to an individual’s prior or current:
(A) borrowing or repaying behavior, including the accumulation,
payment, or discharge of financial obligations; or (B) financial condition or ability to meet financial obligations,
including debts owed, payment history, savings or checking account balances, or savings or checking account numbers.
(3) “Credit report” has the same meaning as in 9 V.S.A. § 2480(a). (b) An employer shall not:
(1) Fail or refuse to hire or recruit; discharge; or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual’s credit report or credit history.
(2) Inquire about an applicant or employee’s credit report or credit history.
(c)(1) An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met:
(A) The information is required by state or federal law or regulation.
(B) The position of employment involves access to confidential financial information.
(C) The employer is a financial institution as defined in 8 V.S.A. § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5).
(D) The position of employment is that of a law enforcement officer
as defined in 20 V.S.A. § 2358, emergency medical personnel as defined in 24 V.S.A. § 2651(6), or a firefighter as defined in 20 V.S.A. § 3151(3). (E) The position of employment requires a financial fiduciary responsibility to the employer or a client of the employer, including the
authority to issue payments, collect debts, transfer money, or enter into contracts.
(F) The employer can demonstrate that the information is a valid and reliable predictor of employee performance in the specific position of employment.
(G) The position of employment involves access to an employer’s payroll information.
(2) An employer that is exempt from the provisions of subsection (b) of this section may not use an employee’s or applicant’s credit report or history as the sole factor in decisions regarding employment, compensation, or a term, condition, or privilege of employment.
(d) If an employer seeks to obtain or act upon an employee’s or applicant’s credit report or credit history pursuant to subsection (c) of this section that contains information about the employee’s or applicant’s credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers, the employer shall:
(1) Obtain the employee’s or applicant’s written consent each time the
employer seeks to obtain the employee’s or applicant’s credit report. (2) Disclose in writing to the employee or applicant the employer’s
reasons for accessing the credit report, and if an adverse employment action is taken based upon the credit report, disclose the reasons for the action in writing. The employee or applicant has the right to contest the accuracy of the credit report or credit history.
(3) Ensure that none of the costs associated with obtaining an employee’s or an applicant’s credit report or credit history are passed on to the employee or applicant.
(4) Ensure that the information in the employee’s or applicant’s credit report or credit history is kept confidential and, if the employment is terminated or the applicant is not hired by the employer, provide the employee or applicant with the credit report or have the credit report destroyed in a secure manner which ensures the confidentiality of the information in the report.
(e) An employer shall not discharge or in any other manner discriminate against an employee or applicant who has filed a complaint of unlawful employment practices in violation of this section or who has cooperated with the attorney general or a state’s attorney in an investigation of such practices or who is about to lodge a complaint or cooperate in an investigation or because the employer believes that the employee or applicant may lodge a complaint or cooperate in an investigation.
(f) Notwithstanding subsection (c) of this section, an employer shall not
seek or act upon credit reports or credit histories in a manner that results in adverse employment discrimination prohibited by federal or state law, including section 495 of this title and Title VII of the Civil Rights Act of 1964.
(g) This section shall apply only to employers, employees, and applicants for employment and only to employment-related decisions based on a person’s credit history or credit report. It shall not affect the rights of any person, including financial lenders or investors, to obtain credit reports pursuant to other law. [Effective 7/1/12]
Genetic Testing and Information
9333. Employment conditions.
(a) No person shall, directly or indirectly, do any of the following as a condition of, or to affect the terms,
conditions or privileges of employment, of membership in a labor organization, or of professional licensure, certification
or registration:
(1) use the fact that genetic counseling or testing services have been requested or that genetic testing has
been performed;
(2) use genetic testing results or genetic information from a person or a member of a person's family;
(3) use the diagnosis of a genetic disease derived from a clinical interview and examination, but not derived from
the results of a genetic test; or
(4) require genetic testing.
(b) As used in this section, "employment" includes application for employment, provided that subject
to the underwriting limitations of section 9334 of this title, this subsection shall not prohibit use of genetic
testing results or genetic information in connection with life, disability income or long-term care insurance provided
under an employee benefit plan.
(c) No person shall disclose to an employer, labor organization, employment agency or licensing agency any genetic
testing results or genetic information, that genetic services have been requested, or that genetic testing has
been performed, with respect to an individual who is an employee, labor organization member, professional licensee,
certificate holder or registrant.
9335. Remedies.
(a) Any person who intentionally violates section 9333 or subsection 9334(a) of this chapter shall be imprisoned
not more than one year or fined not more than $10,000.00, or both.
(b) Any person aggrieved by a violation of this chapter may bring an action for civil damages, including punitive
damages, equitable relief, including restraint of prohibited acts, restitution of wages or other benefits and reinstatement,
costs, and reasonable attorney's fees and other appropriate relief.
Discrimination Against Military Service Personnel
Title 21, Chapter 5, Subchapter 5, Sections 491-493
21 V.S.A. Sec. 491. Absence on military service and training; employment and reemployment rights
(a) Any duly qualified member of the "reserve
components of the armed forces," of the ready reserve, or an organized
unit of the national guard shall upon request be entitled to leaves of
absence for a total of 15 days in any calendar year for the purpose of
engaging in military drill, training, or other temporary duty under
military authority. A leave of absence shall be with or without pay as
determined by the employer. Upon completion of the military drill,
training, or other temporary duty under military authority, a permanent
employee shall be reinstated in that position with the same status,
pay, and seniority, including seniority that accrued during the period
of absence.
(b) A member of or an applicant for membership in the
national guard in either federal or state status as defined in 20
V.S.A. Sec. 366, 601, or 602, shall not be denied initial employment,
reemployment, retention of employment, promotion, or any benefit of
employment by an employer on the basis of membership, application for
membership, performance of service, application for service, or
obligation to serve.
(c) An employer shall not discriminate in employment against any person because a person has taken any of the
following actions:
(1) Enforcement of a provision of this subsection or federal law.
(2) Testified or made a statement in connection with any proceeding under this subsection or under federal law.
(3) Assisted or participated in any investigation under this subsection or federal law.
(4) Exercised any right provided by this subsection or under federal law.
21 V.S.A. Sec. 492. Rights and benefits
(a) Any absence for military training or state active duty shall not affect the employee's right to receive
normal vacation, sick leave, bonus, advancement and other advantages of employment normally to be anticipated in
the employee's particular position.
(b) Any person who is absent from employment necessitated by service in the national guard as permitted under
section 491 of this title shall be entitled to the reemployment rights and benefits provided in 38 United States
Code Sec. 4312-4318.
21 V.S.A. Sec. 493. Enforcement
(a) If any employer fails to comply with any of the provisions of this subchapter, the employee may bring an
action at law for damages for noncompliance, or apply to the superior court for equitable relief as may be just
and proper under the circumstances.
(b) The attorney general or a state's attorney may enforce the provisions of this subchapter by bringing an
action in superior court for legal and equitable relief and may conduct civil investigations in accordance with
the procedures established in 9 V.S.A. Sec. Sec. 2458-2461 as though a violation of this subchapter were an unfair
act in commerce.
305. NURSING MOTHERS IN THE WORKPLACE
(a) For an employee who is a nursing mother, the employer shall for three years after the birth of a child:
(1) provide reasonable time, either compensated or uncompensated,
throughout the day to express breast milk for her nursing child. The
decision to provide compensated time shall be in the sole discretion of
the employer, unless modified by a collective bargaining agreement; and
(2) make a reasonable accommodation to provide appropriate private space that is not a bathroom stall.
(b) An employer may be exempted from the provisions of subsection (a)
of this section if providing time or an appropriate private space for
expressing breast milk would substantially disrupt the employer’s
operations.
(c) An employer shall not retaliate or discriminate against an employee who exercises the right provided under this section.
(d) In lieu of an enforcement action through the Vermont Judicial
Bureau, the attorney general or a state’s attorney may enforce the
provisions of this section by bringing a civil action for temporary or
permanent injunctive relief, economic damages, including prospective
lost wages for a period not to exceed one year, investigative and court
costs. The attorney general or a state’s attorney may conduct an
investigation of an alleged violation and enter into a settlement
agreement with the employer. Such investigation shall not be a
prerequisite to bringing a court action.
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