The Transgender ID Project is a free resource for transgender people living in New England who want to update their legal name and gender marker on state and federal documents.
If you need assistance updating your legal name and gender on federal and state documents, visit the Rhode Island page for the Transgender ID Project.
Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).
Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)).
Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are not engaged in any unlawful activity. Public places belong to everyone, and are often also places of public accommodation to which anti-discrimination rules apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct (Kent v. Dulles, 357 U.S. 116, 126 (1958)).
The presence of individuals who appear to be LGBT — whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason — should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other person.
Police may, of course, approach a person, and make inquiries. If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation (State v. Abdullah, 730 A.2d 1074 (R.I. 1997); State v. Bennett, 430 A.2d 424 (R.I. 1981); Terry v. Ohio, 392 U.S. 1, 16 (1968). An arrest can only occur upon “probable cause” that a crime has been committed. R.I. Const., Art. I, § 6).
Police sometimes detain a person whom they believe has committed or is about to commit a crime. If the person is not charged with a crime, he or she must be released after two hours (see R.I. Gen. Laws § 12-7-1).
Complaints may be made to any individual police department for matters concerning its officers. Many departments have their own Internal Affairs Divisions which receive and investigate civilian complaints against police officers.
Complaints concerning the State Police in Rhode Island should be made to the Rhode Island State Police Office of Professional Standards, which you can contact at in writing at 311 Danielson Pike, North Scituate, RI 02857, or by phone at (401) 444-1011. Citizen complaint forms are also available on the State Police website at http://risp.ri.gov/documents/PSU/ComplaintComplimentForm.pdf. Complaints should include as much information as possible about the incident, including your name and contact information; the name, rank and badge number (if known) of the officer; the location, date, time and details of the incident; and the names and contact information of any witnesses. Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.
In some cases, an individual may decide to pursue a lawsuit — because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also attempt to seek help from the Attorney General’s Office, Criminal Division at (401) 274-4400.
Not anymore. Rhode Island stopped offering civil unions in 2013, but did not automatically convert them to marriage. If you have a civil union (or registered domestic partnership) from Rhode Island or another state, Rhode Island will grant you the same rights and benefits, and hold you to the same responsibilities, as a married couple in Rhode Island. However, with the exception of Social Security, the federal government will not recognize your civil union.
Although it is a term used in many contexts, “domestic partnership” most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes. This recognition may be given by a state or municipal governmental entity or by private businesses and organizations.
In the workplace context, employers may set criteria for domestic partnership as a way for employees to obtain certain fringe benefits for their partners and families which were previously limited to married spouses. The State of Rhode Island, some Rhode Island cities and towns and many private employers in Rhode Island offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan.
In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” See GLAD’s publications on Domestic Partnership for further information at https://www.gladlaw.org/rights/publications/c/relationships/.
In the summer of 2001, the Rhode Island legislature made domestic partner benefits available to state employees with respect to health insurance. It did so by changing the definition of “dependent” in state insurance laws. In 2006, Rhode Island extended these benefits to include family and medical leave to care for an ill partner (R.I. Gen. Laws § 28-48-1(5)) and COBRA health benefits for a state employee’s domestic partner (R.I. Gen. Laws § 36-12-2.4), and in 2007, the legislature extended pension benefits managed through the Employee Retirement System of Rhode Island, to surviving domestic partners with whom the employee had lived for at least a year and were “financially interdependent” (R.I. Gen. Laws §36-10-40).
In order to qualify for state benefits, both partners must certify by affidavit that (1) both partners are at least 18 years old and mentally competent to contract, (2) that neither partner is married to anyone, (3) that the partners are not related by blood to a degree that would prohibit marriage in the State of Rhode Island, (4) that the partners live together and have lived together for at least one year, (5) that the partners are financially interdependent as evidenced by at least two of the following: (A) a domestic partnership agreement or relationship contract; (B) a joint mortgage or joint ownership of a primary residence; (C) two of these: (i) joint ownership of a motor vehicle; (ii) a joint checking account; (iii) joint credit account; (iv) joint lease; and/or (D) the domestic partner has been designated a beneficiary for the employee’s will, retirement contract or life insurance (see, e.g., R.I. Gen. Laws § 36-12-1(3)). Misrepresentations of information in the affidavit will result in an obligation to repay any benefits received and a fine up to $1000. Employees are further required to inform the benefits director at their place of employment if and when their relationship ends.
Also, On July 1, 2018, the Healthy and Safe Families and Workplaces Act (R.I. Gen. Laws § 28-5) went into effect requiring employers with 18 or more employees to provide at least one hour of paid sick leave for every 35 hours worked. Employers with fewer than 18 employees must provide sick time, but it does not need to be paid. The law guarantees eligible workers up to 24 hours of sick time per year beginning in 2018 before increasing to a maximum of 32 hours in 2019 and 40 hours in 2020. This law allows employees paid sick leave for themselves or to care for family or anyone they are living with, including a domestic partner.
Under Rhode Island law, various death benefits or annuities, accidental death benefits or retirement benefits are available to the domestic partners of judges, teachers, police officers, firefighters and some others workers. If you believe you fall in one of these categories, you should consult a lawyer.
Some Rhode Island cities and towns offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan.
In January 2010 the Rhode Island legislature passed legislation (see R.I. Gen. Laws § 5-33.2-24and § 23-4-10) that gives a domestic partner control over the remains and the funeral and burial arrangements of his/her partner provided: (1) the partner meets the definition of domestic partner defined above, and (2) the deceased has not designated another person as his/her “funeral planning agent” as described below in the section “Legal Protections for Same-Sex Couples—Funeral Planning Documents” (R.I. Gen. Laws, § 5-33.2-24(2)(i)). The law was championed by a gay man, Mark Goldberg, who had a five-week battle to claim the body of his partner of 17 years. Despite near unanimous passage, it took a legislative override of the Governor’s veto to finally enact the law.
Although it is an important step forward to have this protection for domestic partners, it does require that you prove that your relationship meets certain criteria at a time of tragedy. The better way to achieve this protection is to name your partner as your “funeral planning agent,” as discussed below. That agent takes precedence over everyone—spouse, domestic partner, and blood relatives.
Private employers can provide to domestic partners any benefits they wish — whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. Private organizations, e.g. a gym, country club, etc., can extend family membership or other family benefits to domestic partners.
However, even when employers provide these benefits, federal laws sometimes treat domestic partner benefits differently from spousal benefits, often with financial consequences. For example, employees must pay federal income tax on a domestic partner’s health insurance benefits, but spousal benefits are exempt (see Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)). Similarly, while spousal consent is required if a married employee decides to name a third party as a pension beneficiary or survivor benefits recipient, an employee with a domestic partner can change these designations freely.
In most states, employees must also pay a state income tax on these benefits, but Rhode Island exempts employees from state income tax on health benefits extended to a domestic partner or civil union partner (R.I. Gen. Laws § 44-30-12(c)(6)).
There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.
The power of attorney can specify the authority of the agent to make decisions on your behalf, and also state what kinds of treatments you do not desire, including treatments which might keep you alive. You can also specify your wishes regarding organ and tissue gifts after death.
The power of attorney must be signed either by one notary public or by two witnesses. None of these signers may be your designated or alternate agent; a health care provider or a health care provider employee; or the operator of a community care facility or an employee of such a facility. The power of attorney can be revoked at any time by creating a new power of attorney or by a clear expression of revocation. People often give a copy to their doctors and sometimes to family members.
Even absent these documents, a surviving same-sex partner who can prove that their relationship satisfied the state criteria for being “domestic partners” (read the “Domestic Partnership” section above) can also assume control of the funeral and burial process.
However, this requires proving certain facts about your relationship at a time of tragedy and does not control if someone else has been appointed as the “funeral planning agent.” The best way to ensure that your partner is able to make these decisions is to name your partner your “funeral planning agent.”
In 2018, Rhode Island passed a law that requires the death certificate to reflect the gender identity of the decedent as reported by the next of kin, or the best qualified person, or by a document memorializing the decedent’s wishes. To ensure that this happens, it is best to give the person you appoint as your “funeral planning agent” a notarized document that attests to your gender identity.
GLAD recommends working with an attorney on these documents.
Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.
Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it. The Rhode Island Supreme Court has recognized that, under some circumstances, contract theories and equitable principles may apply to address the property and financial matters of a separating same-sex couple even without a written agreement.80 Written agreements offer vastly greater security, however, providing the court with a roadmap as to the intentions of the parties.
PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, then those documents should be revoked—with notice to all persons who were given copies of those documents—and new documents should be prepared which reflect your present wishes.
Same-sex couples with children who are breaking up should:
For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families.
Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).
Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.
The anti-discrimination law applies to all public employers and private employers who employ 4 or more individuals (R.I. Gen. Laws § 28-5-6 (8)(i)).
It forbids employers from refusing to hire a person, or discharging them, or discriminating against them in compensation, in terms, conditions or privileges of employment or in any other matter directly or indirectly related to employment because of sexual orientation or gender identity or expression (R.I. Gen. Laws § 28-5-7 (1)). Beyond hiring and firing, this covers most significant job actions, such as failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers. It also prohibits an employer from inquiring about a person’s sexual orientation or gender identity or expression either in a job application or during a job interview or maintaining such information unless based on a certified bona fide occupational qualification or where necessary to comply with a federal affirmative action plan (R.I. Gen. Laws § 28-5-7(4)).
The law also applies to employment agencies and labor organizations (e.g. unions) (R.I. Gen. Laws §§ 28-5-7 (2) and (3)).
It should be noted that all educational programs and activities of state agencies as well as all state employment services are required to be open to all without regard to sexual orientation or gender identity or expression (R.I. Gen. Laws §§ 28-5.1(8) and (9)).
As broad as the law is, there are several exemptions.
It is important to note that unlawful employment practices in Rhode Island also include practices which have a “disparate impact” on the basis of sexual orientation or gender identity or expression (or other characteristics) when the employer is unable to show that the practice or group of practices in question is required by “business necessity” (R.I. Gen. Laws § 28-5-7.2). This can be important to combat discrimination based on policies or practices that are not LGBT-specific but harm LGBT people more than others.
Yes, by case law, sexual harassment is forbidden as sex discrimination (See, e.g., Iacampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996)).
In addition, employers with at least 50 employees and employment agencies must develop and disseminate to their workers anti-sexual harassment policies in their workplaces (R.I. Gen. Laws §§ 28-51-1(a); and 28-51-2 (a), (b)). The law also strongly encourages employers to train employees on the scope of the policy (R.I. Gen. Laws § 28-51-2 (c)).
For purposes of this statute, “sexual harassment” is defined as:
any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:
It is just as unlawful to sexually harass an LGBT individual as it is to harass anyone else. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Similarly, some harassment may be specifically anti-transgender and may be pursued more appropriately as discrimination based on gender identity or expression. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.” Each type of harassment can happen to the same person, and all are forbidden (See R.I. Gen. Laws § 28-5-7(1)(v) (recognizing need for response to complaints of harassment on the basis of sexual orientation and gender identity or expression in addition to that based on sex)).
Moreover, that the sex of the harasser and the victim is the same does not defeat a claim of sexual harassment. Same-sex sexual harassment has been held to violate both state and federal anti-discrimination laws (See Mann v. Lima, 290 F. Supp. 2d 190, 194 (D.R.I. 2003)(applying Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-81 (198); see also R.I. Gen. Laws, § 28-44-17 (sexual harassment against members of either sex may constitute “good cause” for quitting job under unemployment laws)).
Although the anti-discrimination law says that an employer cannot discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, in many, if not most circumstances, that law probably cannot be used to compel an employer to provide benefits to an employee’s unmarried, same-sex partner.
Under R.I. Gen. Laws, § 28-5-7 (1)(ii), even if an employer provides insurance benefits to some employees, “nothing herein shall require those benefits to be offered to unmarried partners of named employees.” As a result, the anti-discrimination cannot be used to compel an employer to provide domestic partner insurance benefits. Note that nothing in the law forbids an employer from providing domestic partner benefits if it chooses to do so. As discussed below, the state and several municipalities have already equalized some benefits like health insurance.
When an employee has a legal spouse, however, under some circumstances the anti-discrimination law may be a means to ensure equal treatment of same-sex spouses as different-sex spouses. The availability of such a claim depends on the type of benefit sought (i.e., family or medical leave versus health insurance) and on the type and terms of the particular benefits plan. This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.
You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.
The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.
No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.
A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.
Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).
The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).
If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).
After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).
There are a few times when the case can be taken from the RICHR and filed in court. For example:
If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).
In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).
In addition, in employment cases, a successful complaint may be entitled to a remedy involving hiring, reinstatement or upgrading of employment, back pay, and admission or restoration to union membership (R.I. Gen. Laws § 28-5-24 (a)(1)). If the adverse job action was taken against the individual for a variety of reasons, and sexual orientation or gender identity or expression was not the sole motivating factor, the RICHR may limit the damages awarded.
When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.
Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).
While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).
GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)
If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.
Possibly yes, depending on the facts of your particular situation.
Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Obtain and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.
It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation. If an employer, employment agency or labor organization discriminates against you in any manner because you have opposed a forbidden practice or have made a charge, testified or assisted in a complaint filed under the antidiscrimination laws, then you can state a claim of retaliation ( R.I. Gen. Laws § 28-5-7 (5) and § 34-37-4(m). See also R.I. Gen. Laws, § 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man). The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.
As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Even if you have been fired or evicted, you may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information to make an informed choice.
Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present. Try to have on hand copies of your employee handbooks or personnel manuals, as well as any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.
Questions and answers on HIV/AIDS Discrimination. Also see our pages on Testing and Privacy and Other HIV-Related Questions.
Yes, Rhode Island has enacted two separate laws that prohibit discrimination against people with HIV or AIDS.
Disability antidiscrimination laws protect people with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness. They also protect people who are regarded or perceived as having HIV.
Under the ADA, but not Rhode Island law, these laws also prohibit discrimination against a person who does not have HIV, but who “associates” with a person with HIV — such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.
An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.
The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.
The following are examples of unlawful discrimination:
Under Rhode Island law, an HIV test shall not be required as a condition of employment (RI ST 23-6.3-11).
Under the ADA and Rhode Island law (42 U.S.C. 12112; RI ST 28-5-7(4)(i)), prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:
After a conditional offer of employment, an employer may require a physical examination or medical history solely for the purpose of determining if an employee can perform the essential job functions with reasonable accommodation. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections.
The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.
The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:
However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:
“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation. Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …” (Doe v. University of Maryland Medical Systems Corporation, 50 F.3d 1261 (1995)).
It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.
While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem:
1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11), Rhode Island’s disability antidiscrimination law (RI ST 34-37-4), as well as the National Fair Housing Amendments of 1989 (42 U.S.C. §§ 3601-3619), to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.
There are no exceptions to housing discrimination on the basis of HIV status under Rhode Island’s HIV-specific law (RI ST 23-6.3-11). Rhode Island’s disability antidiscrimination law exempts residences where there are three or fewer apartments and the owner occupies one of the units (RI ST 34-37-4). In addition, the federal Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members (42 U.S.C. § 3604).
Yes, under Rhode Island’s HIV-specific antidiscrimination statute (RI ST 23-6.3-11), Rhode Island’s disability antidiscrimination law (RI ST 11-24-2), as well as the ADA (42 U.S.C. § 12182), it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.
Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices, as long as these facilities are generally open to the public.
Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.
Doctors typically try to justify discrimination against people with HIV with one of two arguments:
Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Rhode Island law.
Courts have responded to these arguments in the following ways:
1. “Treating People with HIV is Dangerous.”
Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.
For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott (524 U.S. 624 (1998)) that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.
In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise”
In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.
In United States v. Morvant (898 F.Supp. 1157 (E.D. La 1995)), a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care. The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.
Under Title III of the ADA, it is illegal for a health care provider to:
Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:
It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11) and Rhode Island’s disability antidiscrimination law (RI ST 34-37-4) to discriminate on the basis of HIV status in the granting of any form of credit or loan.
Under the National Fair Housing Amendments of 1989 (42 U.S.C. §§ 3601-3619), it is illegal to discriminate on the basis of HIV status in the financing of housing.
It is illegal under Rhode Island’s HIV-specific antidiscrimination law (RI ST 23-6.3-11) and Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. § 794) to discriminate on the basis of HIV status in public school programs or activities.
Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).
Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.
You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.
The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.
No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.
A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.
Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).
For credit, the R.I. law adds to the foregoing prohibitions on discrimination based on marital status, familial status, military status and associating with members of a protected class (R.I. Gen. Laws § 34-37-4(b)).
In housing, all of the foregoing are protected as well as status as a victim of domestic violence and housing status (R.I. Gen. Laws, § 34-37-4 (a)).
The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).
If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).
After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).
There are a few times when the case can be taken from the RICHR and filed in court. For example:
If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).
In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).
In addition, in employment cases, a successful complaint may be entitled to a remedy involving hiring, reinstatement or upgrading of employment, back pay, and admission or restoration to union membership (R.I. Gen. Laws § 28-5-24 (a)(1)). If the adverse job action was taken against the individual for a variety of reasons, and sexual orientation or gender identity or expression was not the sole motivating factor, the RICHR may limit the damages awarded.
In housing cases, the RICHR is also empowered to impose civil fines, with increasing severity depending on whether the offender has committed other discriminatory acts in the past (R.I. Gen. Laws § 34-37-5(h)(2)).
When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.
Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).
While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).
LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to the RICHR. For more information go to: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing _equal_opp/LGBT_Housing_Discrimination.
GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)
If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.
Possibly yes, depending on the facts of your particular situation.
Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Obtain and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.
It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation. If an employer, employment agency or labor organization discriminates against you in any manner because you have opposed a forbidden practice or have made a charge, testified or assisted in a complaint filed under the antidiscrimination laws, then you can state a claim of retaliation ( R.I. Gen. Laws § 28-5-7 (5) and § 34-37-4(m). See also R.I. Gen. Laws, § 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man). The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Contact GLAD Answers at www.GLADAnswers.org or by phone at 1-800-455-4523 (GLAD) any weekday to discuss options.
As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Even if you have been fired or evicted, you may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information to make an informed choice.
Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present. Try to have on hand copies of your employee handbooks or personnel manuals, as well as any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.
Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).
Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.
Financial organizations such as banks, trust companies, savings banks, loan and investment banks, savings and loan associations, credit unions and any other commercial credit institution (this non-discrimination provision applies to any “financial organization governed by the provision of title 19 or any other credit granting commercial institution.” R.I. Gen. Laws § 34-37-4.3). may not discriminate in granting or extending any form of loan or credit because of sexual orientation, gender identity or expression, or marital or familial status (R.I. Gen. Laws § 34-37-4.3).
You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.
The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.
No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.
A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.
Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).
For credit, the R.I. law adds to the foregoing prohibitions on discrimination based on marital status, familial status, military status and associating with members of a protected class (R.I. Gen. Laws § 34-37-4(b)).
The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).
If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).
After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).
There are a few times when the case can be taken from the RICHR and filed in court. For example:
If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).
In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).
When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.
Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).
While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).
LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to the RICHR. For more information go to: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing _equal_opp/LGBT_Housing_Discrimination.
GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)
If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.
Possibly yes, depending on the facts of your particular situation.
State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.
Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.
Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present.
Yes (R.I. Gen. Laws § 15-7-4).
Though the question of joint adoption by an unmarried couple is not addressed expressly by the Rhode Island statutes on adoption or by any authoritative ruling by the State Supreme Court, joint and second parent adoptions have routinely been granted at the Family Court level.
More information on adopting in RI can be found, here.
Yes, four kinds:
The court may also award custody to a third party if it finds it to be in the child’s best interests.
In Rhode Island, the leading case regarding the best interests of the child is Pettinato v. Pettinato (582 A.2d 909 (R.I. 1990)). The Rhode Island legislature has not statutorily defined the factors that comprise a child’s best interests, but in the Pettinato case, the Rhode Island Supreme Court listed eight factors that should be considered by courts to determine the best interests of the child:
In addition, Rhode Island Law requires courts to “consider evidence of past or present domestic violence” and arrange visitation to best protect the child and the abused parent from further harm” (R.I. Gen. Laws § 15-5-16(g)).
As to visitation, the law provides that whichever parent does not have primary physical custody of the child shall be granted a reasonable right of visitation, unless there is a showing of cause why the right should not be granted (R.I. Gen. Laws § 15-5-16(d)(1)).
In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child. Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model. Or a parent may argue that the ex’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child (Compare Suddes v. Spinelli, 703 A.2d 605, 607 (R.I. 1997) (visitation rights only denied “in an extreme situation in which the children’s physical, mental or moral health would be endangered”)). Contact GLAD for further resources.
It may make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a change in circumstances that alters the child’s best interests. If a spouse did not know of your sexual orientation or gender identity at the time of the court proceedings but learned of it later, they may argue that this is a change of circumstances and that the custody issues should be litigated anew.
Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.
It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.
As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
In Rhode Island, the question should turn on whether there is evidence of direct harm to the best interests of the child, although there has been no reported case on the subject. As a general matter, “[i]n any proceeding or suit in any court, neither parent shall have any natural priority or preference in any matter relating to their minor children” (R.I. Gen. Laws § 33-15.1-3). Specific acts of parental misconduct are relevant to determinations of child custody (R.I. Gen. Laws § 15-5-3.1(b)).
Courts have the power to do this but should not do so unless it is clearly in the best interests of the child. Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.
Same-sex couples with children who are breaking up should:
For more detailed information about these standard see the publication Protecting Families: Standards for LGBT Families.
Rhode Island’s transgender community members, families and allies will gather Saturday at the Contemporary Theater Amphitheater in South Kingston to celebrate a “Trans Day of Joy.”
The outdoor event, organized by LGBTQ Action RI, will feature speakers, information about local organizations, available resources for individuals and families, and actions to take in support of transgender equality in the state.
The event starts off the annual Transgender Awareness Week, a week each year designated to uplifting resilience, love and acceptance among and in support of transgender community members.
“Trans Day of Joy is an opportunity to celebrate the transgender community and to show the community, especially young people, that we see them, we care about them and that there are a whole lot of people here to support them,” said Jayeson Watts, LICSW, Director of Trans Heath at Thundermist Health Center. “Like all young people, transgender young people flourish when they are accepted by the people who love them, supported by the communities in which they live and protected by the laws in their state. This event will uplift Rhode Island’s strong, thriving and visible transgender community, and will let people who are not able to be visible know they are not alone.”
“Young people learn best when their identities are affirmed,” said Aarav Sundaresh, Director of Equity & Belonging, Providence Public School Department. “Schools have a responsibility to ensure each student feels safe to be who they are, and to provide an education that is responsive to students’ identities– including their gender, racial and ethnic identities. Transgender students are no exception to this. Educators know that first and foremost, students’ basic needs regarding safety and belonging must be met in order for them to engage with their academic content. And when K-12 school classroom materials are inclusive of diverse identities, including LGBTQ identities, students can engage meaningfully because we’ve fostered a sense of belonging. I’m proud of Rhode Island schools already engaging in this work, and am equally proud to support efforts like the Trans Day of Joy that celebrate inclusivity.”
Trans Day of Joy will take place 11:30am-12:30pm on Saturday November 12, with a rain date of 11:00am-12:00pm on Sunday, November 13. As a celebration of community, the event will feature community advocates, educators, faith leaders, and more. Scheduled speakers include
Rhode Island has been on the forefront of civil rights for transgender people for more than 20 years. In 2001, Rhode Island became the second state in the U.S. to protect transgender people from discrimination. The Williams Institute at the UCLA School of Law estimates that 1,200 people between the ages of 13-17, and 6,900 people over the age 13 in Rhode Island identify as transgender.
Trans Day of Joy is an opportunity to celebrate that everyone is welcome in Rhode Island, and to build upon the state’s legacy of equality to support transgender kids and their families.
In addition to LGBTQ Action RI, Trans Day of Joy is supported by Youth Pride, Inc., The Womxn Project, SAGE RI, RI Democratic Women’s Caucus, Beyond the Stacks, Towards An Antiracist North Kingstown (TANK), TGI Network of RI, RI Queer PAC, PFLAG of Greater Providence, Contemporary Theater Company, UU Congregation of South County, Sojourner House, South County Pride, URI Gender and Sexuality Center, GLBTQ Legal Advocates & Defenders (GLAD), Haus of Codec, Planned Parenthood Votes! Rhode Island, Old Lesbians Organizing for Change, and Thundermist Health Center.
Transgender Awareness Week culminates on November 20 with the annual Transgender Day of Remembrance, an observance to honor the memory of transgender people whose lives were lost in acts of anti-transgender violence.
For more information about Trans Day of Joy, contact Damián Lima, LGBTQ Action RI: info@lgbtqaction.org
Join Rhode Island’s transgender community members, families and allies to celebrate a “Trans Day of Joy.”
Trans Day of Joy is an opportunity to celebrate that everyone is welcome in Rhode Island, and to build upon the state’s legacy of equality to support transgender kids and their families.
The outdoor event, organized by LGBTQ Action RI, will feature speakers, information about local organizations, available resources for individuals and families, and actions to take in support of transgender equality in the state.
The event starts off the annual Transgender Awareness Week, a week each year designated to uplifting resilience, love and acceptance among and in support of transgender community members.
As a celebration of community, the event will feature community advocates, educators, faith leaders, and more. Scheduled speakers include:
Rain date: Sunday, November 13, 11:00am – 12:00pm. Please follow LGBTQ Action RI and The Womxn Project for updates.
For more information about Trans Day of Joy, contact Damián Lima, LGBTQ Action RI: info@lgbtqaction.org
In addition to LGBTQ Action RI, Trans Day of Joy is supported by Youth Pride, Inc., The Womxn Project, SAGE RI, RI Democratic Women’s Caucus, Beyond the Stacks, Towards An Antiracist North Kingstown (TANK), TGI Network of RI, RI Queer PAC, PFLAG of Greater Providence, Contemporary Theater Company, UU Congregation of South County, Sojourner House, South County Pride, URI Gender and Sexuality Center, GLBTQ Legal Advocates & Defenders (GLAD), Haus of Codec, Planned Parenthood Votes! Rhode Island, Old Lesbians Organizing for Change, and Thundermist Health Center.
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