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BILL AS INTRODUCED 2007-2008

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H.465

Introduced by Representatives Lippert of Hinesburg and Grad of Moretown

Referred to Committee on

Date:

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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(4)  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, 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.

(h)(i)  This 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.

(i)(j)  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:

(1)  establish Establish and maintain a principal office and such other offices within the state as it deems necessary;.

(2)  meet Meet and hold hearings at any place within the state;.

(3)  appoint Appoint employees as necessary to carry out the purposes of this chapter;.

(4)  administer Administer oaths and take the testimony of any person under oath in connection with a complaint filed under section 4554 of this title;.

(5)  issue 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;.

(6)(A)  enforce Enforce conciliation agreements and prohibitions against discrimination by bringing an action in the name of the commission seeking any of the following:

(i)  temporary 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.

(ii)  the 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;.

(iii)  compensatory Compensatory and punitive damages on behalf of an aggrieved individual or class of individuals similarly situated;.

(iv)  costs 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;.

(v)  other Other appropriate relief;.

(vi)  trial Trial by jury.

(B)  The 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;.

(7)  utilize 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 complaints;.

(8)  conduct Conduct educational activities and publicize how and where to file complaints.

(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:

(b)  In 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.

(2)  No 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 exhausted.  Such a showing shall not be necessary where unless the claimant demonstrates that:

(1)  the (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)  the (C)  The health or safety of the complainant would be jeopardized otherwise;

(4)  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.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us