|BILL AS INTRODUCED||2007-2008|
Introduced by Representatives Lippert of Hinesburg and Grad of Moretown
Subject: Judiciary; discrimination; human rights commission
Statement of purpose: This bill proposes to: prohibit a public accommodation from printing or posting a statement that it gives preference to or discriminates against a person based upon the person’s inclusion within a protected class; prohibit a public accommodation from retaliating against a person for exercising the person’s lawful rights under the state’s antidiscrimination laws; grant the human rights commission authority to ensure that educational institutions are complying with state antiharassment laws; clarify the legal standard required to prove harassment in an educational institution under the public accommodations statute; and make various technical amendments.
AN ACT RELATING TO DISCRIMINATION BY A PUBLIC ACCOMMODATION AND THE POWERS OF THE HUMAN RIGHTS COMMISSION
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 9 V.S.A. § 4502 is amended to read:
§ 4502. Public accommodations
(a) An owner or operator of a
place of public accommodation or an agent or employee of such owner or operator
shall not, because of the race, creed, color, national origin, marital status,
sex or sexual orientation of any person
(1) refuse, withhold from, or deny to that person any of the accommodations, advantages, facilities, and privileges of the place of public accommodation; or
(2) make, print, or publish or cause to be made, printed, or published any notice, statement, or advertisement with respect to the advantages, facilities, and privileges of the place of public accommodation that indicates any preference, limitation, or discrimination.
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(c) No public accommodation shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this section or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, a proceeding, or a hearing under this section. No public accommodation shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of or on account of having exercised or enjoyed or on account of having aided or encouraged any other individual in the exercise or enjoyment of any right granted or protected by this section.
(d) No individual with a disability shall be excluded from participation in or be denied the benefit of the services, facilities, goods, privileges, advantages, benefits, or accommodations, or be subjected to discrimination by any place of public accommodation on the basis of his or her disability as follows:
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public accommodation shall discriminate against any individual because that individual
has opposed any act or practice made unlawful by this section or because that
individual made a charge, testified, assisted or participated in any manner in
an investigation, proceeding or hearing under this section. No public
accommodation shall coerce, intimidate, threaten or interfere with any
individual in the exercise or enjoyment of or on account of his or her having
exercised or enjoyed or on account of his or her having aided or encouraged any
other individual in the exercise or enjoyment of any right granted or protected
by this section. (5) A public
accommodation shall make reasonable modifications in policies, practices,
or procedures when those modifications are necessary to offer goods, services,
facilities, privileges, advantages, or accommodations to individuals
with disabilities, unless the public accommodation can demonstrate that making
the modifications would fundamentally alter the nature of the goods, services,
facilities, privileges, advantages, or accommodations.
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(e)(f) It is
a violation of this section for a gas station or other facility which sells
gasoline or other motor vehicle fuel for sale to the public to fail to comply
with the provisions of 9 V.S.A. § section 4110a of this title. (f)(g) It is a
violation of this section for a public accommodation to fail to comply with the
provisions or rules pertaining to public buildings pursuant to chapter 4 of
Title 21 chapter 174 of Title 20. (g)(h) This
chapter shall not apply to:
(1) Special education claims and issues covered by federal and state special education laws, regulations and procedures, pursuant to 20 U.S.C. § 1404 et seq. and 16 V.S.A. chapter 101.
(2) An insurer underwriting risks, classifying risks or administering risks that are based on or are not inconsistent with 8 V.S.A. §§ 4724 and 4084 or other applicable state laws.
section shall not be construed to require a public accommodation to permit an
individual to participate in or benefit from the services, facilities, goods,
privileges, advantages, and accommodations of that public accommodation
when that individual poses a direct threat to the health or safety of others.
For the purposes of this subsection, “direct threat” means a significant risk
to the health or safety of others that cannot be eliminated by a modification
of policies, practices or procedures or by the provision of auxiliary aids or
services. In determining whether an individual poses a direct threat to the
health or safety of others, a public accommodation shall make an individualized
assessment based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence to ascertain:
(1) the nature, duration, and severity of the risk; and
(2) the probability that the potential injury will actually occur; and
(3) whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
Nothing in this section shall be construed to prohibit a public accommodation
from excluding a person engaged in disruptive behavior which the place of
public accommodation has reason to believe is the result of alcohol or illegal
drug use. (j)(k)
Notwithstanding any other provision of law, a mother may breastfeed her child
in any place of public accommodation in which the mother and child would
otherwise have a legal right to be. (k)(l) A
police officer, a firefighter, or a member of a rescue squad, search and rescue
squad, first response team, or ambulance corps who is accompanied by a service
dog shall be permitted in any place of public accommodation, and the service
dog shall be permitted to stay with its master. For the purposes of this
subsection, “service dog” means a dog owned, used, or in training by any police
or fire department, rescue or first response squad, ambulance corps, or search
and rescue organization for the purposes of locating criminals and lost
persons, or detecting illegal substances, explosives, cadavers, accelerants, or
school or correctional facility contraband.
Sec. 2. 9 V.S.A. § 4553 is amended to read:
§ 4553. POWERS
(a) To carry out its duties, the commission may:
Establish and maintain a principal office and such other offices within
the state as it deems necessary ;.
Meet and hold hearings at any place within the state ;.
Appoint employees as necessary to carry out the purposes of this chapter ;.
Administer oaths and take the testimony of any person under oath in
connection with a complaint filed under section 4554 of this title ;.
Issue subpoenas to compel testimony or access to or production of
records, documents, and other evidence or possible sources of evidence,
or the appearance of persons, provided that the subpoena is issued pursuant to
a complaint filed in accordance with section 4554 of this title and that
there is reasonable cause to believe that those materials or the testimony of
the person are material to the complaint. Subpoenas issued under this
subdivision shall be accompanied with a notice that informs the person that the
person has a right to contest the subpoena at a hearing before not less than
three members of the commission and that the person has the additional right to
contest the subpoena in court. Subpoenas issued under this subdivision shall
be enforced as provided in sections 809a and 809b of Title 3 ;.
Enforce conciliation agreements and prohibitions against discrimination
by bringing an action in the name of the commission seeking any of the
Temporary or permanent injunctive relief in the public interest and
for an individual aggrieved by unlawful discrimination; or on behalf of
an aggrieved individual or class of individuals similarly situated.
imposition Imposition of a civil penalty of not more than $10,000.00
for each violation of law including violations of any temporary restraining
order issued pursuant to this section. For an intentional and continuing
violation of a court order after a date set in the order, each day of violation
shall be a separate offense ;.
Compensatory and punitive damages on behalf of an aggrieved individual
or class of individuals similarly situated ;.
Costs and reasonable attorney's fees associated with the investigation
and enforcement of actions ; any. Any such costs or fees
recovered by the human rights commission under this chapter shall be deposited
in the commission's special fund and shall be available to the commission to
offset the costs of providing legal services ;.
Other appropriate relief ;.
Trial by jury.
action may be brought in the superior court of the county in which the
violation is alleged to have occurred, or in Washington County, and the court
is authorized to render all of the above-listed relief
Utilize voluntary and uncompensated services of private individuals and
organizations for administrative and educational purposes as may from time to
time be offered and needed; however, volunteers may not be used to investigate
Conduct educational activities and publicize how and where to file
(9) Monitor educational institutions’ compliance with the procedures required by 16 V.S.A. §§ 14 and 565 regarding harassment as defined in 16 V.S.A § 11(a)(26). In situations where an educational facility is in violation of such requirements, the commission may bring an action to enforce compliance by seeking a declaratory judgment and injunctive relief, including a civil penalty of not more than $5,000.00 per violation.
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Sec. 3. 16 V.S.A. § 14(b) is amended to read:
regard to claims brought pursuant to 9 V.S.A. chapter 139, if after notice,
(1) After receiving notice as required under subsection (a) of this section,
if the educational institution finds that the alleged conduct occurred and
that it constitutes harassment, the educational institution shall take prompt
and appropriate remedial action reasonably calculated to stop the harassment.
action shall be brought pursuant to 9 V.S.A. chapter 139 until the
administrative remedies available to the claimant under the policy adopted by
the educational institution pursuant to subsection 166(e) or 565(b) of this
title or pursuant to the harassment policy of a postsecondary school have been
. Such a showing shall not be necessary where unless the
claimant demonstrates that: (1)
(A) The educational institution does not maintain such a policy; (2) a (B)
A determination has not been rendered within the time limits established under
subdivision 565(b)(1) of this title; (3)
(C) The health or safety of the complainant would be jeopardized
exhaustion (D) Exhaustion would be futile; or (5)
requiring (E) Requiring exhaustion would subject the student
to substantial and imminent retaliation.
(3) To prevail in an action brought pursuant to 9 V.S.A. chapter 139, a claimant under this section must prove each of the following elements:
(A) That he or she was subjected to unwelcome conduct based on his or her membership in a category protected by law.
(B) That the conduct was either so severe or so pervasive that, when viewed from a reasonable person’s standard, it:
(i) Was intended to or had the effect of substantially undermining, detracting from, or interfering with the claimant’s educational performance; or
(ii) Created an objectively intimidating, hostile, or offensive environment.
(C) The educational institution received actual notice of the alleged conduct pursuant to subsection (a) of this section, and:
(i) The educational institution failed to investigate the incident or incidents in a timely manner; or
(ii) The educational institution conducted an investigation in a timely manner which substantiated that the conduct rose to the level of harassment, but the educational institution failed to take prompt, appropriate remedial action calculated to stop the harassment.
The Vermont General Assembly
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