Filing a Workplace Harassment Complaint in Vermont

It is the reverse of a right to sue letter. Under 21 V.S.A. 495n, a person who files a claim of sexual harassment under 21 V.S.A. 495b in which neither the Attorney General nor the Human Rights Commission is a party must give notice of the action to both within 14 days after filing the complaint, and the notice may be submitted electronically and must include a copy of the filed complaint. The purpose is to let those bodies intervene to seek remedies or file a statement with the court on questions of law without becoming a party. The section states no penalty for missing the deadline, but it is a statutory duty and it belongs on your calendar the day you file.

Almost certainly yes on size. 21 V.S.A. 495d(1) defines an employer as any individual, organization or governmental body, domestic or foreign, and any agent of one, that has one or more individuals performing services for it within the state, with no minimum headcount and no calendar weeks requirement. 21 V.S.A. 495h(a)(2) reaches further for harassment, stating that all persons who engage a person to perform work or services have an obligation to ensure a working relationship free from sexual harassment, which brings in contractor and freelance relationships. Federal Title VII by contrast needs 15 employees, so a Vermonter at a three person company can have a full state claim and no federal one.

21 V.S.A. 495(a)(1) makes it unlawful for an employer, employment agency or labor organization to harass or discriminate because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age, or against a qualified individual with a disability. The word harass appears in the statute itself rather than being read into terms and conditions of employment. Two entries go well beyond federal law: 21 V.S.A. 495(c) applies the age provisions for the benefit of persons 18 years of age or older rather than 40, and crime victim status is defined at 21 V.S.A. 495d(15) to include people holding relief from abuse or anti-stalking orders and certain family members. 21 V.S.A. 495d(17) also builds hair type, hair texture, hairstyles and protective hairstyles into the definition of race.

The statute says otherwise. 21 V.S.A. 495d(13)(B) states that sexual harassment need not be severe or pervasive in order to be unlawful under the subchapter, which removes the threshold that defeats many federal claims. The definition of harassment at 21 V.S.A. 495d(16) adds that the determination is made on the record as a whole under the totality of the circumstances and that a single incident may constitute unlawful harassment, and that incidents are considered in the aggregate across different types of conduct and different characteristics. These definitions come from recent amendments to 21 V.S.A. 495d, so if your harassment happened several years ago, ask a Vermont lawyer which version of the standard applies to your dates.

Vermont addresses this in the statute, which few states do. 21 V.S.A. 495d(16)(C) provides that conduct may constitute harassment regardless of whether, among other things, the conduct occurred outside the workplace, and the same list covers conduct where the complaining employee was not the person targeted, acquiesced or participated, kept performing their job, or suffered no physical or psychological injury. 21 V.S.A. 495d(13)(A) separately defines sexual harassment to include verbal, physical, written, auditory or visual conduct of a sexual nature, which on its face takes in messages, images and recordings. As with the rest of that section, these provisions come from recent amendments, so confirm the timing against your own dates.

Not as a condition of employment. 21 V.S.A. 495h(g)(1) bars an employer from requiring any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that prohibits, prevents or otherwise restricts the person from opposing, disclosing, reporting or participating in an investigation of sexual harassment, or that purports to waive a substantive or procedural right or remedy, and 495h(g)(2) makes such a provision void and unenforceable. Settlements are regulated too: 21 V.S.A. 495h(h)(1) bans no rehire clauses in sexual harassment settlements, and 495h(h)(2) requires the agreement to state expressly that it does not prevent you from lodging a complaint with the Attorney General, a State's Attorney, the Human Rights Commission, the EEOC or any other State or federal agency, or from testifying or assisting in an investigation.