Employment | Discrimination | Vermont

是的。佛蒙特州是首批在1992年通過全州範圍全面禁止性傾向歧視法律的州之一（例如，21 VSA § 495（就業））。 「性傾向」定義為「女性或男性的同性戀、異性戀或雙性戀」（1 VSA § 143）。

2007年5月，佛蒙特州成為新英格蘭地區第三個明確禁止基於性別認同歧視的州（《公共法案41》，《關於禁止基於性別認同歧視的法案》，2007-2008年立法，定期會議（佛蒙特州，2007年））。該法將性別認同定義為「個人實際或感知的性別認同，或與其性別或性別認同內在相關的性別相關特徵，無論個人出生時的指定性別為何」（《佛蒙特州法典》第144條）。

至於性取向，或許可以。雖然反歧視法本身並沒有區分實際性取向和感知性取向，但總檢察長辦公室民權部門使用的問卷允許人們投訴基於性取向和感知性取向的歧視。然而，人權委員會在其就業投訴表中並沒有做出這種區分。目前還沒有這方面的判例。 （註：學校騷擾法，將在下文討論） 學生權利 （該條款明確規定，為同性戀或雙性戀的學生及其家庭成員提供保護。下文討論的仇恨犯罪法也適用於實際或被認為的性取向和性別認同。）

至於性別認同，如上所述，性別認同被定義為「實際的或感知的性別認同」。這種說法包括基於感知的歧視。

反歧視法禁止任何雇主、職業介紹所或勞工組織因個人的性取向或性別認同而歧視其（21 VSA § 495 (a)(1)）。該法適用於私人和政府雇主，並涵蓋大多數重大的工作行為，例如招聘、解僱、未晉升、降職、過度懲戒、騷擾以及對員工和類似同事的區別對待（21 VSA § 495 (a)；§ 495d(1)（雇主定義））。

此外，職業介紹所不得因性傾向或性別認同而拒絕為其客戶分類或推薦就業，或以其他方式歧視其客戶，從而構成歧視。工會不得因性傾向或性別認同而拒絕其成員資格或以其他方式歧視其成員（《美國憲法》第21卷第495(a)(4)條）。

法律也禁止這些實體以因性取向或性別認同而限制就業或會員資格的方式發布廣告（21 VSA § 495（a）（2））。

不可以。儘管該法律的範圍很廣，但在應用時也存在例外。

• 雇主、機構或勞工組織可以辯稱，特定職位具備“真正的職業資格”，允許非LGBT員工擔任該職位（21 VSA § 495(a)）。然而，反歧視法並未涵蓋任何一般職業豁免，因此這種辯護很少能成功。
• 至於性取向和性別認同，宗教組織——以及由宗教組織運營、監督或控制的慈善或教育組織——如果“優先考慮同宗教或教派人士”，或“就該組織為推廣其所設立或維護的宗教原則而採取的任何行動”（21 VSA § 495(e)），則可免受該法律的約束。然而，此項豁免並非 全權委託 雇主可以利用僱員的宗教信仰作為理由，因僱員的性取向或實際或感知的性別認同而對其進行歧視。

是的。法律明確禁止性騷擾。佛蒙特州法律將性騷擾定義為一種性別歧視，指在以下情況下不受歡迎的性挑逗、性要求以及其他與性相關的口頭或身體行為：

• 服從該行為已明確或隱含地成為僱用條款或條件；或
• 個人對此類行為的順從或拒絕被用作影響該個人的僱用決定的依據之一；或
• 此行為的目的或效果是嚴重干擾個人的工作表現，或造成恐嚇性、敵意或冒犯性的工作環境（21 VSA § 495d (13)）。

由於性騷擾是性別歧視的一種形式，因此可以按照與其他歧視索賠相同的方式提出騷擾索賠，如下所述。

除了禁止性騷擾之外，佛蒙特州法律還要求所有雇主、職業介紹所和勞工組織確保工作場所不存在性騷擾，具體方式包括制定反性騷擾政策、張貼概述該政策的通知以及向所有員工提供該政策的個人書面副本（21 VSA § 495h）。

對男同性戀、女同性戀、雙性戀或跨性別者進行性騷擾與騷擾其他人一樣違法。有些騷擾是專門針對同性戀的，可能更公平地被定性為基於性取向的騷擾。另一些騷擾則源自於當事人的實際或感知的性別認同，可能被定性為基於性別認同的騷擾。還有一些騷擾本質上是性騷擾，更適當地被歸類為性騷擾。所有這些類型的騷擾都可能發生在同一個人身上，根據佛蒙特州法律，所有這些都是被禁止的。

美國最高法院和多個州法院都裁定同性性騷擾違反了性騷擾法（比較 Oncale v. Sundowner Offshore Services, 523 US 75, 118 S.Ct. 998 (1998)（根據聯邦性騷擾法，男性可以起訴其他男性的性騷擾））。

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency. Sometimes you have more that one option about where to file.

State Employment (as well as Public Accommodations or Housing):

• If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:

The Vermont Human Rights Commission
14-16 Baldwin Street
Montpelier, VT 05633-6301
(800) 416-2010
(802) 828-1625
(802) 828-2481 (fax)
human.rights@vermont.gov

A complaint may be filed under oath in person, in writing, by fax or by e-mail stating the facts concerning the alleged discrimination.

• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

General Employment:

If you believe you have been discriminated against by a party other than the state (for example, a private business or a town), you may file a complaint under oath with the:

Civil Rights Unit
Vermont Attorney General’s Office
109 State Street
Montpelier, VT 05609-1001
(888) 745-9195 (Toll Free in Vermont Only)
(802) 828-3657
(802) 828-3665 (TTY)
(802) 828-2154 (fax)
ago.civilrights@vermont.gov

Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can find at www.ago.vermont.gov/assets/files/Employment%20Discrimination%20Complaint%20Form.pdf.

• You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

Not necessarily. The processes at all of these agencies are designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court. Not only are there many legal riles governing these processes, but employees and other defendants are likely to have legal representation.

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts (Code of Vermont Rules 80-250-001, Rule 2). The Attorney General’s Civil Rights Unit also has a policy of requiring complaints to be filed within one year.  If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time.  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Yes. The state anti-discrimination laws for employment forbid taking any action against someone because of sexual orientation and gender identity, as well as race, color, religion, national origin, sex, ancestry, place of birth, age, disability, HIV-related blood testing, family leave, and workers’ compensation. In public accommodations, the criteria are expanded to include marital status, but do not include age, ancestry and place of birth. In housing, the criteria are expanded to include intending to occupy a dwelling with one of more minor children and receipt of public assistance, but do not include ancestry and place of birth.

If you file with the Human Rights Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim. If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed — the respondent — who has to respond to the allegations within fourteen (14) days (Code of Vermont Rules 80-250-001, Rule 10). The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against.  In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses.  The five Commissioners appointed by the governor then decide whether there are reasonable grounds to credit your allegations (9 V.S.A. §§ 4551(a) and 4554(d) – (e)).

If you file a complaint with the Civil Rights Unit (CRU), the process is very similar, and is described in detail on the CRU’s website: www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php.

The Human Rights Commission and the CRU both allow the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process.  If these efforts fail, at the end of the investigation the Human Rights Commission or the CRU issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency.  If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations (9 V.S.A. § 4554(e); Code of Vermont Rules 80-250-001, Rules 31-32).

Similarly, if the CRU finds a violation of law, the respondent will be asked to engage in settlement negotiations to try to resolve the case.  If these negotiations fail, the CRU may file a complaint against the respondent in Superior Court (www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php).

If reasonable grounds of unlawful discrimination are not found, the case will be dismissed at the Commission (9 V.S.A. § 4554(d)). If the CRU finds no violation of law, the file will be closed (www.ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php).

At this point, or at any point in the process at the Commission or the CRU, you may decide to file a case in court.  It is crucial to always keep in mind the deadlines for filing such a case, as discussed above.  If you do so while an investigation is pending at the Commission, the Commission will administratively dismiss the investigation although the Commission may file its own complaint regarding the matter or intervene in your court action (Code of Vermont Rules 80-250-001, Rule 27).

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, back pay, front pay, restitution of wages or other benefits, damages, including those for emotional distress, civil penalties (where applicable), and punitive damages (21 V.S.A. § 495b).

Yes, in many cases.  Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC).  But if you initially institute your complaint with the Commission or the CRU 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 Commission or the CRU has terminated the case. (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law.  This is true because there may be overlapping provisions of state and federal law.   For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination. For more information go to:    https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. See also https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the Commission or the CRU first but keep in mind the possibility of pursuing a federal claim as well.  If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the Commission or CRU cross-file your complaint with the EEOC.

Possibly, depending on the facts of your particular situation.  This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

1. 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.  Get and read a copy of your contract and contact a union representative 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.
2. State or Federal Court: After or instead of filing with the Commission, the CRU or the EEOC, you may decide to file the case in court. You may file in state court at any point within the time limitations, as discussed above.  In order to file in federal court, however, you must remove your case from the EEOC, and there are rules about when and how you must do this that the EEOC can explain.

In addition, you may file a court case to address other claims that are not appropriately handled by discrimination agencies, such as when you are fired in violation of a contract, fired without the progressive discipline promised in an employee handbook, or fired for doing something the employer doesn’t like but that the law requires.  Similarly, if you have a claim for a violation of constitutional rights – for instance, if you are a teacher or a governmental employee who believes his or her free speech or equal protection rights were violated – then those matters must also be heard in court.

It is illegal to retaliate against someone for filing a discrimination claim, and you could file an additional complaint against the employer or landlord for retaliation.  “Retaliation” protections cover those who participate in proceedings, or otherwise oppose unlawful conduct.  If the employer or landlord takes action against an employee or tenant because of that conduct, then the employee or tenant can state a claim of retaliation (9 V.S.A. § 4506(e)(retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495(a)(8) (retaliation prohibited in employment).  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim by a gay man who had brought a sexual harassment claim under Federal Title VII)).

聯絡 GLAD Answers www.GLADAnswers.org 或在任何工作日撥打電話 800-455-4523 (GLAD) 討論選擇。

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 will be able to handle those possible consequences. Of course, even if a person has been fired or evicted, they 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 and advice to make an informed decision.

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, organized by date and with an explanation of who the various players are (and how to get in touch with them). 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.