On June 28, 2023 Governor Phil Scott signed Act 80 (the “Act”) into law. This new law eliminates the “severe and pervasive” standard for harassment, expands harassment protections to protected classes other than sex, expands Vermont’s equal pay law to additional protected groups, and removes no-hire provisions in settlement agreements in relation to violations of the Act.
The Harassment Standard Prior to Act 80
Prior to the Act, harassment only applied to sex discrimination and needed to be severe and pervasive before an employee could bring a claim. This meant that the harassing conduct needed to be recurring, continuous, and/or so significant that it created a work environment that a reasonable person would consider intimidating, hostile, or abusive. Single instances of harassment were usually not sufficient unless those incidents were very severe acts of harassment.
The New Harassment Stand
Under the Act, the Legislature has opted for a more holistic definition of harassment. Harassment is now defined as engaging “in unwelcome conduct based on an employee’s race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition that interferes with the employees’ work or creates a work environment that is intimidating, hostile, or offensive.”
The Act further states that conduct can constitute harassment regardless of whether the complaining employee is the one being harassed, the complaining employee submitted to or participated in the conduct, the complaining employee was still able to do their job despite the conduct, or the conduct happened outside the workplace.
How is this Determined?
When determining unlawful harassment, courts or the Attorney General’s Office may look at “varying types of conduct and conduct based on multiple characters” rather than just each isolated incident. The Act goes even further and states that even a single incident may be considered unlawful harassment. The Legislature also added language that stated that if a reasonable employee of the same protected class would consider the conduct to be a “petty slight or trivial inconvenience” then it would not be considered harassment.
What Else has Changed?
The Act also states that settlement agreements in relation to a violation of the Act cannot prohibit, prevent, or otherwise restrict the complaining employee for working for the employer or any parent company, subsidiary, division, or affiliate of the employer.
The Act also expands Vermont’s equal pay law and provides equal pay protections not only on the basis of sex, but also on the basis of race, national origin and disability status. Employers may still have pay differentials based on factors other than these protected classes, such as tenure and education level.
What Should Employers Do?
These are very significant changes to the way harassment and equal pay claims have been handled by courts and agencies in the past 30 years. It remains to be seen how the courts and the Attorney General’s Office will respond to claims raised under this new law, but it is clear that the language greatly expands employer liability for acts of harassment or discrimination in the workplace. Employers should remain diligent regarding complaints of harassment. It could also be helpful for employers to perform an audit to confirm there is no bias in pay based on sex, race, national origin, and disability status. Employers are still allowed to have pay differentials based on factors other than the protected classes. If an employer does find a discrepancy, then it is important that they do not reduce wages to equalize the pay.
First, employers should make sure that their harassment and discrimination policies are up to date and compliant with this new definition of harassment. Next, employers should make sure that their managers are trained on how to spot harassment and understand their duties to recognize and report incidents of harassment. If an employer has not provided training to managers in the past, they should strongly consider doing so. Finally, if an employer receives a complaint of harassment, they should investigate it thoroughly and keep documentation of the investigation.
Here at Gravel & Shea, we are well versed in guiding and advising employers through these difficult matters and also provide training to managers. These trainings show managers how to provide a safe and respectful workplace, explains what harassment and discrimination can look like, and how to investigate a complaint.
Please contact Heather Hammond (firstname.lastname@example.org) at Gravel & Shea PC if you have questions or would like assistance.