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Rep. Bartley Amendment to S.103 - Testimony

Thank you for giving me the time and space to speak on this, this morning. After second reading yesterday I felt it important to take this opportunity of the process to introduce an amendment for S.103 as advised by our Chair. While I know that there is a plan to readdress aspects of this legislation next session I understand the difficulties in repealing language after it has been voted on and I would be remiss to not propose language now, this session while the bill is in front of us.

Once again, I would like to state that I believe the foundation of this bill is good but do have concerns for the implications of this bill for employers and employees alike. Based on the current legislation proposed, employers who have already implemented best practices around harassment and discrimination, such as harassment trainings, progressive discipline and restorative justice practices will end up diverting resources in legal entanglement that would have better outcomes for all involved through those internal process. The current language automatically assumes the worst of employers and I fear that not only will there be a back log of court cases, employers will more likely terminate alleged offending employees immediately without the proper internal processes and investigations leading to wrongful terminations.

As an HR professional, I have dedicated my career to ending discriminatory practices in the work place and know that a majority of employers want to do the best for their employees. Employers and employees need the opportunity to take steps to address issues in their workplace and improve the overall health of the work environment for current and future employees. What I believe this amendment does is to encourage progressive internal processes, such as restorative justice practices providing for protection of all employees, rather than effectively cutting out those internal grievance processes that the current legislation does.

We all agree that the current federal statute of severe and pervasive needs to be changed as it does not offer adequate protections against harassment or discrimination and even the Vermont standard of severe or pervasive by itself is not enough. But, completely abandoning the standard is not the answer. More often than not when a standard is abandoned less protections are provided.

In drafting this amendment we replicate the California statute that defines severe or pervasive and provides guidance for their courts. This change to the language would codify Vermont’s current standard of severe or pervasive and goes further by taking into account factors that are already found in Vermont case law to provide the guidance we see in California’s statute to our Vermont courts. This amendment defines severe or pervasive as conduct sufficiently severe or pervasive to interfere with the employee’s work or create a work environment that is intimidating, hostile, or offensive. In determining whether conduct constitutes harassment The determination shall be made on the basis of the record as a whole, according to the totality of the circumstances.

In drafting this amendment Damien has combed through Vermont case law to highlight the following factors which will help guide courts in their decisions.

Factors to be considered in determining whether conduct constitutes unlawful harassment include

(I) the nature, severity, frequency, duration, and location of the conduct

(II) whether the conduct is threatening or humiliating; and

(III) whether any party to the conduct held a position of authority or power, whether formal or informal, over the employee.

(iii) A single incident may constitute unlawful harassment if it is sufficiently severe to clearly create an intimidating, hostile, or offensive working environment.

(B) Incidents and conduct that may be harassment shall be considered in the aggregate with varying types of conduct and conduct based on multiple characteristics viewed in totality rather than in isolation.

(C) Conduct may constitute unlawful harassment if it alters an employee’s working conditions in a manner that would make it more difficult for a reasonable person to do the job. The employee’s work performance or productivity does not need to decline as a result of the conduct for it to constitute unlawful harassment. I know this is something that was discussed that an individual may not outwardly show that harassment they are experiencing is affecting their job performance. This language address that concern and would still protect those who’s performance remains the same.

(D) Discriminatory conduct in an employee’s presence that is not directed at that employee or is directed at another employee can contribute to an intimidating, hostile, or offensive work environment.

(E) Conduct that an employee acquiesces or submits to or participates in may be discriminatory harassment if the conduct is unwelcome. So, As long as conduct is unwelcome it may constitute as harassment.

(F) Conduct that is discriminatory towards members of a protected class may constitute unlawful harassment even though it is experienced by both an employee who is a member of that protected class and others who are not members of that protected class. In this guidance there is no need for comparators.

(G) Conduct may constitute unlawful harassment even if an employee is able to continue carrying out the employee’s job duties and responsibilities despite the conduct. To constitute unlawful harassment, discriminatory conduct need only alter the employee’s working conditions in a manner that interferes with the employee’s work or makes it more difficult for the employee to do the employee’s job.

(H) Discriminatory or harassing conduct does not need to result in a physical or psychological injury to an employee to constitute unlawful harassment.

(I) Discriminatory or harassing conduct that occurs outside of the workplace may constitute unlawful harassment if it contributes to an intimidating, hostile, or offensive work environment.

When I had originally suggested similar language to the committee it was implied that the language of severe or pervasive allows for some level of discrimination. In no way does this amendment forgive any level of discriminatory harassment, but uses Vermont case law to define severe comma pervasive which will encourage employers to uphold progressive internal process that protect all employees.

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