VERMONT STATUTES ANNOTATED -- Copyright (c) 1992 BY SECRETARY OF STATUTORY REVISION COMMISSION FOR THE STATE OF VERMONT -- All rights reserved *** THIS DOCUMENT IS CURRENT THROUGH THE 1992 SUPPLEMENT (1992 SESSION) *** TITLE 3. EXECUTIVE PART 1. GENERALLY CHAPTER 27. STATE EMPLOYEES LABOR RELATIONS ACT SUBCHAPTER 4. UNFAIR LABOR PRACTICES 3 V.S.A. @ 963 (1992) @ 963. Membership; employees' rights An employee organization entering into an agreement shall not: (1) Discriminate against a person seeking or holding membership therein on account of race, color, creed, sex, sexual orientation or national origin. (2) Penalize a member for exercising a right guaranteed by the Constitution or laws of the United States or the state of Vermont. (3) Cause or attempt to cause the discharge from employment of employees who refuse membership therein because of religious beliefs. HISTORY: Added 1969, No. 113, @ 1; amended 1991 No. 135 (Adj. Sess.), @ 3. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Subdivision (1): Inserted " sexual orientation" following "sex". TITLE 3. EXECUTIVE PART 1. GENERALLY CHAPTER 27. STATE EMPLOYEES LABOR RELATIONS ACT SUBCHAPTER 4. UNFAIR LABOR PRACTICES 3 V.S.A. @ 961 (1992) @ 961. Employers It shall be an unfair labor practice for an employer: (1) To interfere with, restrain or coerce employees in the exercise of their rights guaranteed by section 903 of this title, or by any other law, rule or regulation. (2) To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it; provided that an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay. (3) By discrimination in regard to hire and tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization. (4) To discharge or otherwise discriminate against an employee because he has filed charges or complaints or given testimony under this chapter. (5) To refuse to bargain collectively with representatives of his employees subject to the provisions of subchapter 3 of this chapter. (6) To discriminate against an employee on account of race, color, creed, sex, sexual orientation or national origin. (7) To request or require an applicant, prospective employee or employee to have an HIV-related blood test as a condition of employment. (8) To discriminate against an applicant, prospective employee or employee on the basis of a person's having a positive test result from an HIV-related blood test. HISTORY: Added 1969, No. 113, @ 1; amended 1987, No. 176 (Adj. Sess.), @ 3; 1991, No. 135 (Adj. Sess.), @ 2. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Subdivision (6): Inserted " sexual orientation" following "sex". --1987 (ADJ. SESS.). Subdivision (7): Added. Subdivision (8): Added. ANNOTATIONS 1/2. COLLECTIVE BARGAINING. Where provision of collective bargaining agreement governing state college faculty workload was ambiguous, labor relations board order requiring college to rescind workload guidelines which had been unilaterally issued by college president and negotiate any proposed changes regarding faculty workload was within the board's discretion. Vermont State Colleges Faculty Federation v. Vermont State Colleges (1988) 149 Vt. 546, 547 A.2d 1340. 1. CITED. Cited in Vermont State Employees Association v. State (1976) 134 Vt. 195, 357 A.2d 125; Nzomo v. Vermont State Colleges (1978) 136 Vt. 97, 385 A.2d 1099; Vermont State Colleges Faculty Federation v. Vermont State Colleges (1980) 138 Vt. 451, 418 A.2d 34; Hackel v. Vermont State Colleges (1981) 140 Vt. 446, 438 A.2d 1119; In re Harrison (1982) 141 Vt. 215, 446 A.2d 366; In re Friel (1982) 141 Vt. 505, 450 A.2d 1111; Vermont State Employees' Ass'n v. State (1989) 151 Vt. 492, 562 A.2d 1054. TITLE 3. EXECUTIVE PART 1. GENERALLY CHAPTER 27. STATE EMPLOYEES LABOR RELATIONS ACT SUBCHAPTER 4. UNFAIR LABOR PRACTICES 3 V.S.A. @ 963 (1992) @ 963. Membership; employees' rights An employee organization entering into an agreement shall not: (1) Discriminate against a person seeking or holding membership therein on account of race, color, creed, sex, sexual orientation or national origin. (2) Penalize a member for exercising a right guaranteed by the Constitution or laws of the United States or the state of Vermont. (3) Cause or attempt to cause the discharge from employment of employees who refuse membership therein because of religious beliefs. HISTORY: Added 1969, No. 113, @ 1; amended 1991 No. 135 (Adj. Sess.), @ 3. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Subdivision (1): Inserted " sexual orientation" following "sex". TITLE 3. EXECUTIVE PART 1. GENERALLY CHAPTER 27. STATE EMPLOYEES LABOR RELATIONS ACT SUBCHAPTER 6. MISCELLANEOUS PROVISIONS 3 V.S.A. @ 1001 (1992) @ 1001. Grievances; applicants and excluded personnel (a) Persons who are applicants for state employment in the classified service and classified employees in their initial probationary period and any extension or extensions thereof may appeal to the state labor relations board if they believe themselves discriminated against on account of their race, color, creed, sex, sexual orientation, age or national origin. (b) Permanent classified employees excluded from bargaining units shall be deemed to have the right of appeal in the same manner and to the same extent as those employees represented by a bargaining representative except that they may not be represented by a bargaining representative. HISTORY: Added 1969, No. 113, @ 1; amended 1971, No. 193 (Adj. Sess.), @ 13, eff. April 3, 1972; 1991, No. 135 (Adj. Sess.), @ 4. NOTES: REVISION NOTE. This section was enacted as @ 970 but was redesignated as @ 1001 to conform classification to V.S.A. style. In subsec. (a), substituted "state labor relations board" for "state employees labor relations board" for conformity with 1975, No. 152 (Adj. Sess.). See @@ 902(1) and 921 of this title. AMENDMENTS--1991 (ADJ. SESS.). Subsection (a): Inserted " sexual orientation" following "sex". --1971 (ADJ. SESS.). Amended section generally. ANNOTATIONS 1. CITED. Cited in Vermont State Employees' Ass'n v. State (1989) 151 Vt. 492, 562 A.2d 1054. LAW REVIEW COMMENTARIES For note, "The Vermont Labor Relations Board's role in Grievance Proceedings: Let's Make this Process Work," see 12 Vt. L. Rev. 429 (1987). TITLE 8 BANKING AND INSURANCE PART 2. BANKS AND OTHER FINANCIAL INSTITUTIONS CHAPTER 57. INVESTMENTS AND LOANS SUBCHAPTER 3. LOANS ARTICLE 1. MISCELLANEOUS 8 V.S.A. @ 1211 (1992) @ 1211. Prohibition on discrimination based on sex, marital status, race, color, religion, national origin, age, sexual orientation or handicapping condition (a) No financial institution shall discriminate against any applicant for credit services on the basis of the sex, marital status, race, color, religion, national origin, age, sexual orientation or handicapping condition of the applicant, provided the applicant has the legal capacity to contract. (b) The department of banking, insurance, and securities shall prescribe rules and regulations necessary to carry out the provisions of this section. (c) Definitions: (1) The term "credit services" means credit cards, personal loans, mortgage loans, and commercial loans. (2) The term "financial institutions" means banks, savings and loan institutions, credit unions, small loan companies, and other licensed lenders. (3) The term "applicant" means any person who applies to a financial institution directly for an extension, renewal, or continuation of credit, or applies to a financial institution indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit. (4) The term "person" means a natural person, a corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association. (5) The term "department" means the department of banking, insurance, and securities. (6) The term "adverse action" means denial, revocation, or termination of credit services. The term does not include a change in the terms of an account expressly agreed to by an applicant, nor any action or forbearance relating to an account taken in connection with inactivity, default, or delinquency as to that account. (7) The term "application" means an oral or written request for an extension of credit that is made in accordance with procedures established by a financial institution for the type of credit requested. The term does not include the use of an account or line of credit to obtain an amount of credit that is within a previously established credit limit. A completed application means an application in connection with which a financial institution has received all the information that the financial institution regularly obtains and considers in evaluating applications for the amount and type of credit requested (including, but not limited to, credit reports, any additional information requested from the applicant, and any approvals or reports by governmental agencies or other persons that are necessary to guarantee, insure, or provide security for the credit or collateral). The financial institution shall exercise reasonable diligence in obtaining such information. (8) The term "handicapping condition" applied to an applicant means a handicapped individual as defined in section 495d(5) of Title 21. For the purposes of this section, an applicant with a handicapping condition does not include an alcoholic or drug abuser who, by reason of current alcohol or drug use, constitutes an unacceptable credit risk. (d) Notification requirements: (1) Within 30 days of reaching a decision on a completed application, a financial institution shall notify the applicant of its decision on the application. (2) Each applicant against whom adverse action is taken shall receive a written statement of reasons for such action from the financial institution. (3) For commercial credit only, a statement of reasons meets the requirements of this section only if it contains the specific reasons for the adverse action taken, and cites the specific documentation or business judgment which supports the adverse decision on the application. Consumer credit shall be governed by the Equal Credit Opportunity Act (15 U.S.C. @ 1691 et seq.) and regulations adopted thereunder. (4) Financial institutions shall be required to maintain a copy of all "statements of reasons" and the documentation upon which the decision was based for one calendar year after the date of issuance. (e) Civil enforcement. A financial institution that discriminates against an applicant in violation of this section shall be liable to the applicant for punitive damages, actual damages sustained by the applicant as a result of the discrimination and for costs and a reasonable attorney's fee as determined by the court. HISTORY: Added 1973, No. 130 (Adj. Sess.), @ 1, eff. July 1, 1974; amended 1987, No. 44; 1989, No. 225 (Adj. Sess.), @ 25(a); 1991, No. 135 (Adj. Sess), @ 5. NOTES: REVISION NOTES. At the end of subsec. (b), substituted "section" for "title" following "provisions of this" to correct an error in the reference. In the section catchline, inserted " sexual orientation" following "age" for purposes of conformity with the text of the section, as amended. At the end of subsec. (b), substituted "section" for "title" following "provisions of this" to correct an error in the reference. AMENDMENTS--1991 (ADJ. SESS.). Subsection (a): Inserted " sexual orientation" following "age". --1989 (ADJ. SESS.). Substituted "department of banking, insurance, and securities" for "department of banking and insurance" in subsec. (b) and subdiv. (c)(5). --1987. Amended section generally. CROSS REFERENCES Discrimination based on the sex or marital status of an applicant for a bank credit card prohibited, see @ 1302 of this title. TITLE 8 BANKING AND INSURANCE PART 2. BANKS AND OTHER FINANCIAL INSTITUTIONS CHAPTER 57. INVESTMENTS AND LOANS SUBCHAPTER 4. BANK CREDIT CARDS 8 V.S.A. @ 1302 (1992) @ 1302. Limitations and conditions Issuers of bank credit cards shall be subject to the following requirements: (1) In every case, the bank shall comply with section 1205 of this title, and payments or advances arising out of credit card transactions shall be considered as obligations in which the bank has invested within the meaning of that section. (2) No bank institution shall discriminate against any applicant for a bank credit card on the basis of the sex, sexual orientation or marital status of the applicant. Nothing in this section shall be taken to prohibit the establishment of separate credit card accounts for husband and wife. HISTORY: 1969, No. 225 (Adj. Sess.), @ 2, eff. March 31, 1970; amended 1973, No. 130 (Adj. Sess.), @ 4; 1975, No. 131 (Adj. Sess.), @ 1; 1977, No. 168 (Adj. Sess.); 1985, No. 59, @ 4; 1987, No. 32, @ 1; 1991, No. 135 (Adj. Sess), @ 6. NOTES: REVISION NOTE. In subdiv. (2), substituted "this title" for "Title 8" following "section 1205 of" to conform the reference to V.S.A. style. AMENDMENTS--1991 (ADJ. SESS.). Subdivision (2): Inserted " sexual orientation" following "sex" in the first sentence. --1987 Deleted former subdiv. (1) and redesigned former subdivs. (2) and (3) as present subdivs. (1) and (2). --1985 Subdivision (1): Amended generally. --1977 (ADJ. SESS.). Subdivision (1)(B): Substituted "$ 5,000.00" for "$2,000.00". --1975 (ADJ. SESS.). Subdivision (1)(A): Deleted ", or for a husband and wife unless they are living apart under a legal separation in which case two such accounts may be established" from the end of the sentence. Subdivision (3): Added the second sentence. --1973 (ADJ. SESS.). Subdivision (3): Added. CROSS REFERENCES Discrimination based on the sex or marital status of an applicant for a loan or mortgage prohibited, see @ 1211 of this title. TITLE 8 BANKING AND INSURANCE PART 3. INSURANCE CHAPTER 129. INSURANCE TRADE PRACTICES 8 V.S.A. @ 4724 (1992) @ 4724. Unfair methods of competition or unfair or deceptive acts or practices defined The following are hereby defined as unfair methods of competition or unfair or deceptive acts or practices in the business of insurance: (1) Misrepresentations and false advertising of insurance policies. Making, issuing, circulating, or causing to be made, issued or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which: (A) misrepresents or fails to adequately disclose the benefits, advantages, conditions, exclusions, limitations or terms of any insurance policy; or (B) misrepresents the dividends or share of the surplus to be received on any insurance policy; or (C) makes any false or misleading statements as to the dividends or share of surplus previously paid on any insurance policy; or (D) is misleading or is a misrepresentation as to the financial condition of any person, or as to the legal reserve system upon which any life insurer operates; or (E) uses any name or title of any insurance policy or class of insurance policies misrepresenting the true nature thereof; or (F) is a misrepresentation for the purpose of inducing or tending to induce the lapse, forfeiture, exchange, conversion, or surrender of any insurance policy; or (G) is a misrepresentation for the purpose of effecting a pledge or assignment of or effecting a loan against any insurance policy; or (H) misrepresents any insurance policy as being shares of stock. (2) False information and advertising generally. Making, publishing, disseminating, circulating or placing before the public or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine or other publication, in the form of a notice, circular, pamphlet, letter or poster or over any radio station or television station, or in any other way, an advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his business, which is untrue, deceptive or misleading. (3) Defamation. Making, publishing, disseminating, or circulating, directly or indirectly, or aiding, abetting, or encouraging the making, publishing, disseminating or circulating of any oral or written statement or any pamphlet, circular, article or literature which is false, or maliciously critical of or derogatory to the financial condition of any person and which is calculated to injure such person. (4) Boycott, coercion and intimidation. Entering into any agreement to commit, or by any concerted action committing any act of boycott, coercion or intimidation resulting in or tending to result in unreasonable restraint of trade, or monopoly in, the business of insurance. (A) Committing any act of boycott, coercion, or intimidation in the marketing or sale of any insurance contracts. (5) False financial statements and entries. (A) Knowingly filing with any supervisory or other public official, or knowingly making, publishing, disseminating, circulating or delivering to any person, or placing before the public, or knowingly causing directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement of fact as to the financial condition of a person. (B) Knowingly making any false entry of a material fact in a book, report or statement of any person or knowingly omitting to make a true entry of any material fact pertaining to the business of such person in any book, report or statement of such person. (C) Knowingly concealing, withholding or destroying, mutilating, altering or by any means falsifying any documentary material in the possession, custody or control of any person after that person (i) has received a complaint to which that documentary material is directly relevant or (ii) knows that the documentary material is relevant to an investigation or an examination of that person being made by the commissioner. (6) Stock operations and advisory board contracts. Permitting agents, officers or employees to issue or deliver, agency or company stock or other capital stock, or benefit certificates or share in any common-law corporation, or securities or any special or advisory board contracts or other contracts of any kind promising returns and profits as an inducement to insure. (7) Unfair discrimination. (A) Making or permitting any unfair discrimination between insureds of the same class and equal risk in the rates charged for any contract of insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of such contracts. (B) Making or permitting unfair discrimination against an applicant or an insured, on the basis of the sex, sexual orientation or marital status of the applicant or insured, with regard to: (i) Underwriting standards and practices or eligibility requirements; or (ii) Rates; however, nothing in this subdivision shall prevent any person who contracts to insure another from setting rates for such insurance in accordance with reasonable classifications based on relevant actuarial data or actual cost experience in accordance with section 4656 of this title. (C)(i) Inquiring or investigating, directly or indirectly as to an applicant's, an insured's or a beneficiary's sexual orientation in an application for insurance coverage, or in an investigation conducted by an insurer, reinsurer, or insurance support organization in connection with an application for such coverage, or using information about gender, marital status, medical history, occupation, residential living arrangements, beneficiaries, zip codes or other territorial designations to determine sexual orientation; (ii) Using sexual orientation or beneficiary designation in the underwriting process or in the determination of insurability; (iii) Making adverse underwriting decisions because medical records or a report from an insurance support organization reveal that an applicant or insured has demonstrated AIDS-related concerns by seeking counseling from health care professionals; (iv) Making adverse underwriting decisions on the basis of the existence of nonspecific blood code information received from the medical information bureau or a national data bank, but this prohibition shall not bar investigation in response to such a nonspecific blood code. (v) The provisions of this subdivision (C) shall not be construed to prohibit an insurer from requesting an applicant or insured to take an HIV-related test on the basis of the health history or current condition of health of the applicant or insured in accordance with the provisions of subdivision (20) of this section. (8) Rebates. (A) Except as otherwise expressly provided by law, knowingly permitting or offering to make or making any contract of insurance or agreement as to such contract other than as plainly expressed in the insurance contract issued thereon, or paying or allowing, or giving or offering to pay, allow, or give, directly or indirectly, as inducement to such insurance, any rebate or premiums payable on the contract, or any special favor or advantage in the dividends or other benefits thereon, or any valuable consideration or inducement whatever not specified in the contract; or giving, or selling, or purchasing or offering to give, sell, or purchase as inducement to such insurance contract or annuity or in connection therewith, any stocks, bonds, or other securities of any insurance company or other corporation, association or partnership, or any dividends or profits accrued thereon, or anything of value whatsoever of value not specified in the contract. (B) Making available through any rating plan or form, property, casualty or surety insurance to any firm, corporation or association of individuals, any preferred rate or premium based upon any fictitious grouping of such firm, corporation or individuals. The grouping of risks by way of membership, nonmembership, license, franchise, employment, contract, agreement, or any other method or means, when the grouping of risks have no preferred characteristic over similar risks written on an individual basis, for the purpose of insuring such grouped risks at a preferred rate or premium or on a preferred form is a "fictitious grouping." This subdivision shall not apply to life or health and disability insurance or annuity contracts. (C) Nothing in subdivision (7) or (8)(A) of this section shall be construed as including within the definition of discrimination or rebates any of the following practices: (i) in the case of any contract of life insurance or life annuity, paying bonuses to policyholders or otherwise abating their premiums in whole or in part out of surplus accumulated from nonparticipating insurance, provided that such bonuses or abatement of premiums shall be fair and equitable to policyholders and for the best interest of the company and its policyholders; (ii) in the case of life insurance policies issued on the industrial debit plan, making allowance to policyholders who have continuously for a specified period made premium payments directly to an office of the insurer in an amount which fairly represents the saving in collection expenses; (iii) readjustment of the rate of premium for a group insurance policy based on the loss or expenses thereunder, at the end of the first or any subsequent policy year of insurance thereunder, which may be made retroactive only for such policy year. (9) Unfair claim settlement practices. Committing or performing with such frequency as to indicate a business practice any of the following: (A) misrepresenting pertinent facts or insurance policy provisions relating to coverage at issue; (B) failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies; (C) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (D) refusing to pay claims without conducting a reasonable investigation based upon all available information; (E) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (F) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; (G) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made a part of the application; (H) attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured; (I) making claim payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are made; (J) making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (K) delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; (L) failing to promptly settle claims where liability has become reasonably clear under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; (M) failing to promptly provide a reasonable explanation on the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement. (10) Failure to maintain complaint handling procedures. Failure of any person to maintain a complete record of all of the complaints which it has received since the date of its last examination under section 3563 or 3564 of this title. This record shall indicate the total number of complaints, their classification by line of insurance, the nature of each complaint, the disposition of these complaints, the time it took to process each complaint and such other information as the commissioner may require. For the purpose of this subdivision, "complaint" shall mean any written communication primarily expressing a grievance. (11) Misrepresentation in insurance applications. Making false or fraudulent statements or representations on or relative to an application for an insurance policy, for the purpose of obtaining a fee, commission, money, or other benefit from any insurers, agent, broker, or individual. (12) Failure of agent, broker or insurer to act as fiduciary. Failure of any insurance agent, broker or insurer to act as a fiduciary in regard to premiums, return premiums or other sums of money received by him in his capacity as insurance agent, insurance broker or insurer by: (A) failure to pay or transmit in a timely manner those sums of money to the persons to whom it is owed. (13) Misrepresentation of services or products. Any person offering his or its services or insurance policies to the public in such a way as to mislead or to fail to adequately disclose to the public the true nature of the policies or the services offered. (14) Nondisclosure of fees or charges. Failure of any agent or broker to obtain a prior written agreement with a client, policyholder or other member of the public concerning fees or charges made by that agent or broker directly to the client, policyholder, or member of the public for that agent or broker procuring, servicing, or providing advice on insurance contracts. Commissions, expense allowances, bonuses, fees, or any other compensation received directly by agents or brokers from any legal entity engaged in the insurance business is exempt from this subdivision. (15) Financed premiums. Misrepresenting or failing to completely disclose the terms, conditions, or benefits of financing premiums for insurance policies where the financing of the premiums constitute part of the solicitation or sale of the policy. (16) Unsuitable policies. Soliciting, selling, or issuing an insurance policy when the person soliciting, selling, or issuing the policy has reason to know or should have reason to know that it is unsuitable for the person purchasing it. (17) Failure to instruct or supervise representatives. Failure of an employer or principal engaged in the business of insurance to instruct or supervise any full-time agent, or full-time adjuster, or full or part-time employee after that employer or principal has knowledge of a deceptive or unfair act or practice prohibited by this chapter which was committed by that agent, adjuster, or employee. (18) Doing business with a person known to be committing deceptive or unfair acts or using prohibited practices. Accepting business from or contracting with or continuing contractual relations with a person whom the other person knows or has or should have reason to know is repeatedly committing deceptive or unfair acts or practices prohibited by this title. (19) Failure to comply with filed rates, rules, regulations or forms. Failure to comply with any rates, rules, regulations or forms filed with the commissioner. (20) HIV-related tests. Failing to comply with the provisions of this subdivision relating to blood screening tests for HIV antibodies or antigens (hereinafter referred to as "HIV-related tests"). (A) No person shall request or require that a person reveal having taken HIV-related tests in the past. (B) No person shall request or require that an individual submit to an HIV-related test unless he or she has first obtained the individual's written informed consent to the test. Before written, informed consent may be granted, the individual shall be informed, by means of a printed information statement which shall have been read aloud to the individual by the agent or broker at the time of application or later and then given to the individual for review and retention, of the following: (i) an explanation of the test or tests to be given, including: the tests' relationship to AIDS, the insurer's purpose in seeking the test, potential uses and disclosures of the results, limitations on the accuracy of and the meaning of the test's results, and the importance of seeking counseling about the individual's test results after those results are received; and (ii) an explanation that the individual is free to consult, at personal expense, with a personal physician or counselor or the state health department before deciding whether to consent to testing and that such delay will not affect the status of any application or policy; and (iii) a summary of the individual's rights under this subdivision (20), including subdivisions (F)-(K); and (iv) an explanation that the person requesting or requiring the test, and not the individual or the individual's health care provider, will be billed for the test, and that the individual has a choice to receive the test results directly or to designate in writing prior to the administration of the test any other person through whom to receive the results. In addition, before drawing blood for the HIV-related test or tests, the person doing so shall give the individual to be tested an informed consent form containing the information required by the provisions of this subdivision (B), and shall then obtain the individual's written informed consent. (C) The forms for informed consent, information disclosure, and test results disclosure used for HIV-related testing shall be filed with and approved by the commissioner pursuant to 8 V.S.A. @ 3541. (D) No laboratory may be used by an insurer or insurance support organization for the processing of HIV-related tests unless it is approved by the Vermont department of health. Any requests for approval under this subdivision shall be acted upon within 120 days. The department may approve a laboratory without on-site inspection or additional proficiency data if the laboratory has been certified under the Clinical Laboratory Improvement Act, 42 U.S.C. @ 263a. (E) The test protocol shall be considered positive only if test results are two positive ELISA tests and a Western Blot test with bands present at p24, p31 and either gp41 or gp160, or upon approval of any equally or more reliable confirmatory test or test protocol which has been approved by the commissioner and the United States Food and Drug Administration. (F) If an individual has at least two positive ELISA tests but an indeterminate Western Blot test result, the Western Blot test may be repeated on the same serum. If the Western Blot test result is indeterminate, the insurer may delay action on the application, but no change in pre-existing coverage, benefits or rates under any separate policy or policies held by the individual may be based upon such indeterminacy. If action on an application is delayed due to indeterminacy as described herein, the insurer shall provide the individual the opportunity to retest once after six but not later than eight months following the date of the first indeterminate test result. If the retest Western Blot test result is again indeterminate or is negative, the test result shall be considered as negative, and a new application for coverage shall not be denied by the insurer based upon the results of either test. Any underwriting decision granting a substandard classification or exclusion based on the individual's prior HIV-related test results shall be reversed, and the company performing a retest which had forwarded to a medical information bureau reports based upon the individual's prior HIV-related test results shall request the medical information bureau to remove any abnormal blood codes listed due to such prior test results. (G) Upon the written request of an individual for a retest, an insurer shall retest, at the insurer's expense, any individual who was denied insurance, or offered insurance on any other than a standard basis, because of the positive results of an HIV-related test: (i) once within the three-year period following the date of the most recent test; and (ii) in any event, upon the approval by the commissioner of an alternative test or test protocol for the presence of HIV antibodies or antigens. If such retest is negative, a new application for coverage shall not be denied by the insurer based upon the results of the initial test. Any underwriting decision granting a substandard classification or exclusion based on the individual's prior HIV-related test results shall be reversed, and the company performing a retest which had forwarded to a medical information bureau reports based upon the individual's prior HIV-related test results shall request the medical information bureau to remove any abnormal blood codes listed due to such prior test results. (H) An insurer, on the basis of the individual's written informed consent as specified in subdivision (B) of this subdivision, if necessary to make underwriting decisions regarding the particular individual's application, may disclose the results of an individual's HIV-related test results to its reinsurers, or to those contractually retained medical personnel, laboratories, insurance support organizations, and insurance affiliates (but not agents or brokers) that are involved in underwriting decisions regarding the individual's particular application. Other than the disclosures permitted by this subdivision, the entities listed herein, including the insurer, shall not further disclose to anyone individually-identified HIV-related test result information without a separately obtained written authorization from the individual; provided, however, that if an individual's test result is positive or indeterminate, then an insurer may report a code to the medical information bureau provided that a nonspecific blood test result code is used which does not indicate that the individual was subjected to HIV-related testing. (I) An insurer, reinsurer, contractually retained medical personnel, laboratories, medical information bureau or other national data bank, insurance affiliate, or insurance support organizations that are obligated to not disclose any individually-identifiable records of HIV-related tests pursuant to this subdivision (20) shall have no duty to disclose this information to any person except in compliance with a court order or as provided in subdivision (B) or (H) nor shall it have any liability to any person for refusing or failing to disclose such information. (J) Any individual who sustains damage as a result of the unauthorized negligent or knowing disclosure of that individual's individually-identifiable HIV-related test result information in violation of subdivision (H) of this subdivision (20) may bring an action for appropriate relief in superior court against any person making such a disclosure. The court may award costs and reasonable attorney's fees to the individual who prevails in an action brought under this subdivision. (K) In addition to any other remedy or sanction provided by law, after notice and opportunity for hearing the commissioner may assess an administrative penalty in an amount not to exceed $ 2,000.00 for each violation against any person who violates any provision of this subdivision (20) or subdivision (7)(C) of this section. (21) In the case of claims for damage to automobile glass under a policy of insurance covering, in whole or in part, motor vehicles: (A) Failing to inform an insured, at the time a claim is made, of the right of the insured to choose freely any company or location for providing automobile glass services. (B) Intimidating, coercing, threatening, or misinforming an insured for the purpose of inducing the insured to use a particular company or location to provide automobile glass services. HISTORY: Amended 1967, No. 186, eff. April 17, 1967; 1973, No. 216 (Adj. Sess.), @ 4, eff. May 1, 1974; 1975, No. 180 (Adj. Sess.); 1979, No. 28, @ 5; 1987, No. 194 (Adj. Sess.), @@ 1, 2; 1991, No. 135 (Adj. Sess.), @ 7; No. 194 (Adj. Sess.). NOTES: SOURCE. 1955, No. 174, @ 4. REFERENCES IN TEXT. Section 4656 of this title, referred to in subdiv.(7)(B)(ii), was repealed by 1983, No. 238 (Adj. Sess.), @ 2. REVISION NOTE. In subdiv. (20)(B), substituted "this subdivision (B)" for "subdivision (C)" near the end of the third sentence to correct an error in he reference. In subdiv. (4), as amended by 1973, No. 216 (Adj. Sess.), @ 4, inserted catchline for consistency with remainder of section. In subdiv. (7)(B)(ii), substituted "this subdivision" for "this paragraph" to conform reference to V.S.A. style. In the third sentence of subdiv. (8)(B), substituted "this subdivision" for "this paragraph (B)" to conform reference to V.S.A. style. In the introductory clause of subdiv. (8)(C), substituted "subdivision (7) or (8)(A) of this section" for "clause (7) above or paragraph (A) of clause (8) of this subsection" to conform reference to V.S.A. style. In the third sentence of subdiv. (10), substituted "this subdivision" for "this subsection" to conform reference to V.S.A. style. In the second sentence of subdiv. (14), substituted "this subdivision" for "this clause (14) of section 4724" to conform reference to V.S.A. style. In subdiv. (19), inserted catchline for consistency with remainder of section. AMENDMENTS--1991 (ADJ. SESS.). Subdivision (7)(B): Act No. 135 inserted " sexual orientation" following "sex" in the introductory paragraph. Subdivision (21): Added by Act No. 194. --1987 (ADJ. SESS.). Subdivision (7)(C): Added. Subdivision (20): Added. --1979. Subdivision (19): Added. --1975 (ADJ. SESS.). Subdivision (7)(B): Added. --1973 (ADJ. SESS.). Amended section generally. --1967. Subdivision (10): Added. EFFECTIVE DATES OF 1987 (ADJ. SESS.) AMENDMENTS; DATE FOR CERTIFICATION OF LABORATORIES. 1987, No. 194 (Adj. Sess.), @ 5, provided that the amendments to this section by sections 1 and 2 of the act, which added subdivs. (20) and (7)(C), respectively, were to take effect on July 1, 1988, except that the department of health could certify laboratories under subdiv. (20)(D) of this section from May 13, 1988. CROSS REFERENCES Application of this section to health maintenance organizations, see @ 5108 of this title. Discrimination and other prohibited practices by life insurance companies, see @@ 3701 and 3702 of this title. Discrimination and rebates by fire or casualty insurance companies prohibited, see @ 3861 of this title. Discrimination, deceptive advertising and rebates by health insurers prohibited, see @@ 4083-4085 of this title. Human immuno-deficiency virus (HIV) testing generally, see @ 1127 et seq. of Title 18. ANNOTATIONS Cited, 1 Construction, 1/2 Regulations, 3/4 1/2. CONSTRUCTION. Subdivision (8)(A) of this section refers to agreements between insurer and insured, not between broker or creditor and insurer. Consumer Credit Insurance Ass'n v. State (1988) 149 Vt. 305, 544 A.2d 1159. 3/4. REGULATIONS. Regulation promulgated by commissioner of banking and insurance to assure full financial disclosure in marketing of credit insurance by prohibiting the granting of any special advantage or any service not set out in the insurance contract implemented subdivision (14) of this section and, therefore, did not exceed the commissioner's statutory authority. Consumer Credit Insurance Ass'n v. State (1988) 149 Vt. 305, 544 A.2d 1159. Commissioner of banking and insurance exceeded his statutory authority in promulgating regulation which made it an unfair trade practice for credit insurers to make deposits of money without interest or at a lesser rate of interest than was currently being paid by the creditor, bank or financial institution to other depositors of like accounts, since the practice the regulation sought to prohibit did not fall within the practices defined in this section. Id. For note relating to the use of classifications based on gender and marital status in insurance, see 11 Vt. L. Rev. 685 (1986). 1. CITED. Cited in Wilder v. Aetna Life & Casualty Insurance Co. (1981) 140 Vt. 16, 433 A.2d 309; State v. Poutre (1990) 154 Vt. 531, 581 A.2d 731. LAW REVIEW COMMENTARIES For note relating to the use of classifications based on gender and marital status in insurance, see 11 Vt. L. Rev. 685 (1986). TITLE 9 COMMERCE AND TRADE PART 3. SALES, ASSIGNMENTS AND SECURED TRANSACTIONS CHAPTER 59. MOTOR VEHICLE RETAIL INSTALLMENT SALES FINANCING 9 V.S.A. @ 2362 (1992) @ 2362. Prohibition on discrimination based on sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition No seller shall discriminate against any buyer or prospective buyer who desires to establish a retail installment contract because of the sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition of the buyer. HISTORY: Added 1973, No. 130 (ADJ. SESS.), @ 3; 1989, No. 122, @ 12, eff. June 30, 1989; 1991 No. 135 (ADJ. SESS.), @ 8. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Inserted " sexual orientation" following "sex" in the section catchline and in the text of the section. --1989. Deleted "or" preceding "marital status" and added "race, color, religion, national origin, age or handicapping condition" in the section catchline and in the text of the section. TITLE 9 COMMERCE AND TRADE PART 3. SALES, ASSIGNMENTS AND SECURED TRANSACTIONS CHAPTER 61. RETAIL INSTALLMENT SALES 9 V.S.A. @ 2410 (1992) @ 2410. Prohibition on discrimination based on sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition No seller shall discriminate against any buyer or prospective buyer who desires to establish a retail installment contract or retail charge agreement because of the sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition of the buyer. HISTORY: Added 1973, No. 130 (ADJ. SESS.), @ 2; amended 1989, No. 122, @ 23, eff. June 30, 1989; 1991, No. 135 (ADJ. SESS.), @ 9. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Inserted " sexual orientation" following "sex" in the section catchline and in the text of the section. --1989. Deleted "or" following "sex" and added "marital status, race, color, religion, national origin, age or handicapping condition" in the section catchline and in the text of the section. TITLE 9. COMMERCE AND TRADE PART 3. SALES, ASSIGNMENTS AND SECURED TRANSACTIONS CHAPTER 65. AGRICULTURAL FINANCE LEASES 9 V.S.A. @ 2488 (1992) @ 2488. Prohibition on discrimination based on sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition No person shall discriminate against any lessee or prospective lessee who has entered into an agricultural finance lease, or who desires to enter into an agricultural finance lease, because of the sex, sexual orientation, marital status, race, color, religion, national origin, age or handicapping condition of the lessee. HISTORY: Added 1989, No. 284 (ADJ. SESS.), @ 1; amended 1991, No. 135 (ADJ. SESS.), @ 10. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Inserted " sexual orientation" following "sex" in the section catchline and in the text of the section. TITLE 9. COMMERCE AND TRADE PART 7. LANDLORD AND TENANT CHAPTER 139. DISCRIMINATION; PUBLIC ACCOMMODATIONS; RENTAL AND SALE OF REAL ESTATE 9 V.S.A. @ 4502 (1992) @ 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, refuse, withhold from or deny to that person any of the accommodations, advantages, facilities and privileges of the place of public accommodation. (b) An owner or operator of a place of public accommodation or his or her employee or agent shall not prohibit an individual with a disability accompanied by a service animal from entering the public accommodation. (c) 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: (1) A public accommodation shall provide an individual with a disability the opportunity to participate in its services, facilities, privileges, advantages, benefits and accommodations. It is discriminatory to offer an individual an unequal opportunity or separate benefit; however it is permissible to provide a separate benefit if that benefit is necessary to provide an individual or class of individuals an opportunity that is as effective as that provided to others. (2) A public accommodation shall afford goods, services, facilities, privileges, advantages and accommodations to an individual with a disability in the most integrated setting which is appropriate for the needs of the individual. Notwithstanding the existence of separate or different programs or activities, a public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different. Nothing in this subsection shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity or benefit which the individual chooses not to accept. (3) A public accommodation shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. (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 of 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. (6) A public accommodation shall take whatever steps may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or would result in an undue burden on the public accommodation. (7) A public accommodation shall not be required to provide to individuals with disabilities personal devices, such as wheelchairs, eyeglasses, hearing aids or readers for personal use or study or personal services to assist with feeding, toiletting or dressing. (8) Notwithstanding the provisions of this section, if a place of public accommodation has an architectural or communication barrier, in order to comply with this section, the public accommodation shall remove the barrier, if removal is readily achievable, or shall make its goods, services, facilities, privileges, advantages or accommodations available through alternative methods, if those alternative methods are readily achievable. Nothing in this subsection shall be construed to alter architectural barrier removal requirements under the federal Americans with Disabilities Act and its regulations as they relate to governmental entities. (9) Any public accommodation that offers examinations or courses related to applications, licensing, certification or credentialing for secondary or post-secondary education, professional or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. (d) This section shall not prohibit an owner or operator of an inn, hotel, motel or other establishment which provides lodging to transient guests, and which has five or fewer rooms for rent or hire, from restricting such accommodation on the basis of sex or marital status. (e) 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. @ 4110a. (f) 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. (g) 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) 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) 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. HISTORY: Added 1987, No. 74, @ 1; amended 1991, No. 48, @ 3; 1991, No. 135 (ADJ. SESS.), @ 11; No. 243 (ADJ. SESS.), @@ 3, 4. NOTES: REVISION NOTE. Redesignated subdivs. (h)(A), (B) and (C) as subdivs. (h)(1), (2) and (3) for purposes of conforming to V.S.A. style. AMENDMENTS--1991 (ADJ. SESS.). Act No. 135 substituted "sex or sexual orientation" for "or sex" following "marital status" in subsec. (a). Act No. 243 rewrote subsecs. (b) and (c) and added subsecs. (f)-(i). --1991. Subsection (e): Added. CROSS REFERENCES Accessibility of public buildings to the handicapped generally, see @ 271 et seq. of Title 21. ANNOTATIONS 1. LIMITATION OF ACTIONS. Three-year personal injury statute of limitations, rather than six-year statute governing civil actions, applied to claims brought under federal and state law alleging discrimination on basis of handicap. Morse v. University of Vermont, 776 F. Supp. 844 (D. Vt. 1991). Notwithstanding that university offered handicapped student time extension to complete her degree work, university's refusal to grant student her degree when she had completed the requisite course hours and grade point average was not a separate instance of violation of antidiscrimination laws for statute of limitation purposes, but rather was continuing impact of alleged discriminatory act of advising student she had been terminated from her master's program. Id. Student's discrimination on basis of handicap claim against university accrued when she learned that university had terminated her from master's program, and when university notified her she would not be considered for readmission to program; the fact that university entertained appeals did not toll the running of the statute. Id. TITLE 9. COMMERCE AND TRADE PART 7. LANDLORD AND TENANT CHAPTER 139. DISCRIMINATION; PUBLIC ACCOMMODATIONS; RENTAL AND SALE OF REAL ESTATE 9 V.S.A. @ 4503 (1992) @ 4503. Unfair housing practices (a) It shall be unlawful for any person: (1) To refuse to sell or rent, or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling or other real estate to any person because of the race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance. (2) To discriminate against, or to harass any person in the terms, conditions or privileges of the sale or rental of a dwelling or other real estate, or in the provision of services or facilities in connection therewith, because of the race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance. (3) To make, print or publish, or cause to be made, printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling or other real estate that indicates any preference, limitation or discrimination based on race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance. (4) To represent to any person because of the race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance, that any dwelling or other real estate is not available for inspection, sale or rental when the dwelling or real estate is in fact so available. (5) To coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of any right granted or protected by this chapter or for having filed a charge, testified or cooperated in any investigation or enforcement action pursuant to chapter 139 or 141 of this title. (6) To discriminate against any person in the making or purchasing of loans or providing other financial assistance for real estate related transactions or in the selling, brokering or appraising of residential real property, because of the race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance. (7) To engage in blockbusting practices, for profit, which may include inducing or attempting to induce a person to sell or rent a dwelling by representations regarding the entry into the neighborhood of a person or persons of a particular race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person intends to occupy a dwelling with one or more minor children, or because a person is a recipient of public assistance. (8) To deny any person access to or membership or participation in any multiple listing service, real estate brokers' organization or other service, organization or facility relating to the business of selling or renting dwellings, or to discriminate against any person in the terms or conditions of such access, membership, or participation, on account of race, sex, sexual orientation, age, marital status, religious creed, color, national origin or handicap of a person, or because a person is a recipient of public assistance. (9) To discriminate in the sale or rental of a dwelling because a person relies upon aids such as attendants, specially trained animals, wheelchairs, or similar appliances or devices but the owner shall not be required to modify or alter the building in any way in order to comply with this chapter. An owner shall permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by the handicapped person if the modifications are necessary to afford the person full enjoyment of the premises. The owner may, if reasonable, require the person to agree to restore the premises to the condition that existed before the modification, reasonable wear and tear excepted, but the owner may not require an additional security deposit for this purpose. (10) To refuse to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessay to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common areas. (11) To fail to comply with provisions or rules pertaining to covered multifamily dwellings, as defined in section 271 of Title 21, pursuant to chapter 4 of Title 21. (b) The provisions of subsection (a) of this section with respect to discrimination in sales and rentals of dwellings on the basis of age or on the basis of a person's intention to occupy with one or more minor children shall not apply to the sale or rental of a dwelling in a housing complex: (1) intended for, and solely occupied by, persons 62 years of age or older; or (2) intended and operated for occupancy by at least one person 55 years of age or older per unit. This subsection shall only apply if the following conditions are met: (A) The housing complex has significant facilities and services specifically designed to meet the physical or social needs of older persons, or if it is not practicable to provide those facilities and services, that the housing complex is necessary to provide important housing opportunities for older persons; and (B) At least 80 percent of the units are occupied by at least one person 55 years of age or older per unit, except that a newly constructed housing complex in which first occupancy will begin after enactment of this act need not comply with this subsection until 25 percent of the units are occupied; and (C) There are written and enforced policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older. (3) established under any federal or state program specifically designed and operated to assist elderly persons, as defined in the federal or state program. (c) The housing exemption in subsection (b) of this section shall not fail to apply due to persons residing in such dwellings as of July 1, 1989, who do not meet the age requirements of subsection (b) of this section, provided that new occupants of such dwellings meet the age requirements of that subsection, and that unoccupied units as of July 1, 1989 are reserved for occupancy by persons who meet the age requirements of that subsection. HISTORY: Added 1987, No. 74, @ 1; amended 1987, No. 253 (ADJ. SESS.), @ 2; 1989, No. 89, @ 2; 1991, No. 135 (ADJ. SESS.), @ 12. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Subsection (a): Inserted " sexual orientation" following "sex" in subdivs. (1)-(4) and (6)-(8). --1989. Amended section generally. --1987 (ADJ. SESS.). Amended section generally. ANNOTATIONS 1. CITED. Cited in State v. Severance (1988) 150 Vt. 597, 554 A.2d 684. TITLE 10. CONSERVATION AND DEVELOPMENT PART 1. DEVELOPMENT OF RESOURCES CHAPTER 25. VERMONT HOUSING FINANCE AGENCY SUBCHAPTER 1. GENERAL PROVISIONS 10 V.S.A. @ 601 (1992) @ 601. Definitions The following words and terms, unless the context clearly indicates a different meaning, shall have the following meaning: (1) "Agency" means the Vermont housing finance agency created by this chapter; (2) "Bonds, notes and other obligations" or "bonds, bond anticipation notes or other obligations" means any bonds, notes, debentures, interim certificates or other evidences of financial indebtedness issued by the agency pursuant to this chapter; (3) "Eligible security" means any security or obligation payable from or evidencing an interest in mortgages or other obligations securing loans to finance residential housing in the state; (4) "Federally insured mortgage loan" means a mortgage loan for residential housing insured or guaranteed by the United States or an agency or instrumentality thereof, or a commitment by the United States or an agency or instrumentality thereof to insure such a mortgage; (5) "Federal mortgage loan" means a mortgage loan for residential housing made by the United States or an agency or instrumentality thereof or a commitment by the United States or an agency or instrumentality thereof to make such a mortgage loan; (6) "Housing development costs" means the costs incurred in connection with the acquisition, construction or rehabilitation of residential housing including the costs of its physical construction, the costs of acquisition of land, real or personal property, rights, rights-of-way, easements and franchises necessary or convenient for the construction, and the costs of legal, administrative, architectural and related professional services, the costs of insurance, project reports, survey, other preliminary expenses and the costs of working capital, reserves and carrying charges; (7) "Housing sponsor" or "sponsor" means a person who is organized on a nonprofit or limited profit basis and who is approved by the agency as qualified either to own, construct, acquire, rehabilitate, operate, manage or maintain residential housing; (8) "Mortgage" means a mortgage deed, deed of trust, or other instrument which shall constitute a lien on real property in fee simple or on a leasehold under a lease having a remaining term, at the time such mortgage is acquired, which does not expire for at least that number of years beyond the maturity date of the obligation secured by the mortgage as is equal to the number of years remaining until the maturity date of the obligation or on a cooperative interest or on an interest in a mobile home. "Mortgage" shall also include any mortgage or obligation guaranteed by the Vermont home mortgage guarantee board or its successor; (9) "Mortgage lender" means any bank or trust company, federal national mortgage association approved mortgage banker, savings bank, savings and loan association, industrial bank, credit union, national banking association, federal savings and loan association, federal credit union or other financial institution or governmental agency or instrumentality which customarily provides or otherwise aids in the financing of mortgage loans on residential housing located in the state; (10) "Mortgage loan" means and includes: (A) an interest-bearing obligation secured by either a mortgage or note or bond constituting a lien on land and improvements in the state; (B) an interest-bearing obligation secured by a pledge of a cooperative interest and a conditional assignment of the proprietary lease incidental thereto; (C) an interest-bearing obligation secured by the owner-occupant's interest in a mobile home provided that: (i) the mobile home is to be sited in a manner intended for continuous residential occupancy by the owner on land owned by the owner of the mobile home and shall be secured by a mortgage that shall constitute a first lien on the mobile home and the real property to which it is affixed; or (ii) the mobile home is to be sited in a manner intended for continuous residential occupancy on land leased by the owner of the mobile home and shall be secured by a note or otherwise and collateral assignment of a lease of real property that shall constitute a first lien upon the mobile home and lease. Notwithstanding any other provision of this chapter, the lease of the land upon which the mobile home is sited shall be for a term of at least one year, shall be renewable for periods of at least one year, and shall comply with the requirements of 10 V.S.A. @ 6236. This definition shall not preclude requirement of security in addition to that specified in this subsection for any mortgage loan. (11) "Persons and families of low and moderate income" means persons and families irrespective of race, creed, national origin, sex or sexual orientation deemed by the agency to require such assistance as is made available by this chapter on account of insufficient personal or family income, taking into consideration, without limitation, such factors as: (A) The amount of the total income of such persons and families available for housing needs; (B) The size of the family; (C) The cost and condition of residential housing available; (D) The cost and availability of mortgage loans on residential housing in the state; (E) The eligibility of such persons and families for federal housing assistance of any type predicated upon a low-income basis or upon the basis of the age of such persons; (F) The ability of such persons and families to compete successfully in the normal housing market and to pay the amounts at which private enterprise is providing decent, safe and sanitary housing, and deemed by the agency therefore to be eligible to occupy residential housing constructed and financed, wholly or in part, with insured or guaranteed construction loans or insured or guaranteed mortgages, or with other public or private assistance other than as provided by this chapter. (12) "Real property" means all lands, including improvements and fixtures thereon, and property of any nature appurtenant thereto, or used in connection therewith, and every estate, interest and right, legal or equitable, therein, including terms of years and liens by way of judgment, mortgage or otherwise and the indebtedness secured by such liens; (13) "Rehabilitation" means the rehabilitation, improvement and repair of residential housing and facilities incidental thereto undertaken primarily to provide dwelling accommodations for occupancy by persons and families in this state; (14) "Residential housing" means residential housing units designed primarily to provide principal dwelling accommodations whether on a permanent or temporary basis for persons or families, which may include the land and improvements thereon and such nonhousing facilities or services considered necessary or convenient by the agency in connection with the residential housing. "Residential housing" includes, but is not limited to, single or multi-family dwellings, congregate homes, residential care homes as defined in 18 V.S.A. @ 2002, nursing homes, transitional housing, emergency shelters for the homeless or displaced, mobile homes, single room occupancy dwellings, and group homes for the mentally ill or developmentally disabled. "Residential housing" also means cooperative interests, and mobile home parks as defined in section 6201 of this title; (15) "Cooperative housing corporation" means a domestic corporation qualified under chapter 14 of Title 11; (16) "Cooperative interest" means a cooperative interest as defined in chapter 14 of Title 11; (17) "Member" means a person who owns a cooperative interest in a cooperative housing corporation; (18) "Mobile home" means "mobile home" as that term is defined in chapter 72 of Title 9. (19) "Equity loan" means a mortgage loan to a housing sponsor secured by a mortgage on property constituting residential housing in an amount that, when added to the amount of any prior mortgages on the property, does not exceed ninety percent of the value of the property as determined by the agency, provided the agency has made a finding that the effect of such loan will be to maintain or increase the supply of residential housing in the state for persons and families of low and moderate income. HISTORY: Added 1973, No. 260 (Adj. Sess.), @ 3, eff. April 11, 1974; amended 1975, No. 176 (Adj. Sess.), @ 1, eff. March 26, 1976; 1987, No. 41, @ 1; 1987, No. 250 (Adj. Sess.), @ 1, eff. June 13, 1988; 1989, No. 77, @@ 1, 2, eff. June 7, 1989; 1991, No. 135 (Adj. Sess.), @ 13. NOTES: AMENDMENTS--1991 (ADJ. SESS.). Subdivision (11): Substituted "sex or sexual orientation" for "or sex" preceding "deemed" in the introductory paragraph. --1989. Subdivision (10)(B): Amended generally. Subdivision (10)(C)(i): Deleted "permanently" preceding "sited", substituted "that" for "which" following "mortgage" and deleted "thereto" following "affixed". Subdivision (10)(C)(ii): Substituted "is to be" for "to be permanently" preceding "sited" and "that" for "which" following "property" in the first sentence and added the second sentence. Subdivision (14): Deleted "housing cooperative corporations and cooperative interests" preceding "congregate" in the second sentence and added the third sentence. Subdivision (15): Amended generally. Subdivision (16): Amended generally. Subdivision (19): Added. --1987 (ADJ. SESS.). Deleted "first" preceding "lien on real property" in the first sentence of subdiv. (8) and preceding "lien on land" in subdiv. (10)(A). --1987. Subdivision (6): Inserted "acquisition" following "connection with the". Subdivision (8): Added "or on a cooperative interest or on an interest in a mobile home" following "until the maturity date of the obligation" and substituted "guarantee board" for "credit agency" following "Vermont home mortgage". Subdivision (9): Substituted "mortgage loans" for "mortgages" preceding "on residential". Subdivision (10): Amended generally. Subdivision (14): Amended generally. Subdivision (15): Added. Subdivision (16): Added. Subdivision (17): Added. Subdivision (18): Added. --1975 (ADJ. SESS.). Added present subdivs. (6) and (7), deleted former subdiv. (9), and redesignated former subdivs. (6), (7), (8) and (10)-(13) as present subdivs. (8), (9) and (10)-(14). TITLE 13. CRIMES AND CRIMINAL PROCEDURE PART 1. CRIMES CHAPTER 31. DISCRIMINATION 13 V.S.A. @ 1455 (1992) @ 1455. Hate motivated crimes A person who commits, causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victim's actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap as defined by 21 V.S.A. @ 495d(7)-(11), or sexual orientation shall be subject to the following penalties: (1) If the maximum penalty for the underlying crime is one year or less, the penalty for a violation of this section shall be imprisonment for not more than two years or a fine of not more than $2,000.00, or both. (2) If the maximum penalty for the underlying crime is more than one year but less than five years, the penalty for a violation of this section shall be imprisonment for not more than five years or a fine of not more than $10,000.00, or both. (3) If the maximum penalty for the underlying crime is five years or more, the penalty for the underlying crime shall apply; however, the court shall consider the motivation of the defendant as a factor in sentencing. HISTORY: Added 1989, No. 172 (Adj. Sess.), @ 2, eff. May 12, 1990. NOTES: REVISION NOTE. Substituted "21 V.S.A. @ 495d(7)-(11)" for "21 V.S.A. @ 495(d)(7)-(11)" in the introductory paragraph to correct an error in the reference. TITLE 21. LABOR CHAPTER 5. EMPLOYMENT PRACTICES SUBCHAPTER 6. FAIR EMPLOYMENT PRACTICES 21 V.S.A. @ 495 (1992) @ 495. Unlawful employment practice (a) It shall be unlawful employment practice, except where a bona fide occupational qualification requires persons of a particular race, color, religion, national origin, sex, sexual orientation, ancestry, place of birth, age, or physical or mental condition: (1) For any employer, employment agency or labor organization to discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, or age or against a qualified handicapped individual; (2) For any person seeking employees or for any employment agency or labor organization to cause to be printed, published or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, specification or discrimination based upon race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, age or handicapping condition; (3) For any employment agency to fail or refuse to classify properly or refer for employment or to otherwise discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, or age or against a qualified handicapped individual; (4) For any labor organization, because of race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, or age to discriminate against any individual or against a qualified handicapped individual or to limit, segregate or qualify its membership; (5) For any employer, employment agency, or labor organization to discharge or in any other manner discriminate against any employee because such employee has lodged a complaint of discriminatory acts or practices or has cooperated with the attorney general or a state's attorney in an investigation of such practices, or is about to lodge a complaint or cooperate in an investigation, or because such employer believes that such employee may lodge a complaint or cooperate with the attorney general or state's attorney in an investigation of discriminatory acts or practices; (6) For any employer, employment agency, labor organization or person seeking employees to discriminate against, indicate a preference or limitation, refuse properly to classify or refer, or to limit or segregate membership, on the basis of a person's having a positive test result from an HIV-related blood test; (7) For any employer, employment agency, labor organization or person seeking employees to request or require an applicant, prospective employee, employee, prospective member, or member to have an HIV-related blood test as a condition of employment or membership, classification, placement, or referral. (b) The provisions of this section shall not be construed to limit the rights of employers to discharge employees for good cause shown. (c) The provisions of this section prohibiting discrimination on the basis of age shall apply for the benefit of persons 18 years of age or older. (d)(1) An employee shall not have a cause of action in negligence for any injury occurring to the employee on the account of an employer complying with subdivisions (a)(6) and (7) of this section. (2) A person shall not have a cause of action in negligence for any injury occurring to the person on the account of an employer complying with subdivisions (a)(6) and (7) of this section. (e) The provisions of this section prohibiting discrimination on the basis of sexual orientation shall not be construed to prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to persons of the same religion or denomination or from taking any action with respect to matters of employment which is calculated by the organization to promote the religious principles for which it is established or maintained. (f) The provisions of this section prohibiting discrimination on the basis of sexual orientation shall not be construed to change the definition of family or dependent in an employee benefit plan. HISTORY: 1963, No. 196, @ 1; amended 1971, No. 9, eff. Feb. 25, 1971; 1975, No. 198 (Adj. Sess.), @ 1; 1981, No. 65, @ 1; 1987, No. 176 (Adj. Sess.), @@ 1, 2; 1987, No. 176 (Adj. Sess.), @@ 1, 2; 1991, No. 135 (Adj. Sess.), @ 15. NOTES: REVISION NOTE. At the end of subdivs. (d)(1) and (2), substituted "subdivisions (a)(6) and (7) of this section" for "section 495(a)(6) and (7)" to conform references to V.S.A. style. Subdivision dignations (a)-(e) changed to (1)-(5) to conform section to V.S.A. style. AMENDMENTS--1991 (ADJ. SESS.). Subsection (a): Inserted " sexual orientation" following "sex" in the introductory paragraph and subdivs. (1)-(4), deleted "his" preceding "race" in subdiv. (1), and made a minor change in punctuation in subdivs. (5) and (6). Subsection (c): Substituted "section" for "act" preceding "prohibiting". Subsection (e): Added. Subsection (f): Added. --1987 (ADJ. SESS.). Subdivision (a)(6): Added. Subdivision (a)(7): Added. Subsection (d): Added. --1981. Amended section generally. --1975 (ADJ. SESS.). Introductory paragraph: Amended generally. Subdivision (1): Deleted "with respect to any matter directly or indirectly related to his employment, rates of pay, or labor organization membership opportunities" preceding "because of". Subdivision (2): Substituted "employees" for "employment" following "any person seeking". Subdivision (5): Added. --1971. Introductory paragraph: Inserted "in which" preceding "persons of a particular race" and "sex" preceding "or ancestry". Subdivision (1): Inserted "rates of pay" following "related to his employment" and "sex" following "national origin". Subdivisions (2)-(4): Inserted "sex" following "national origin". Subdivision (5): Deleted. CROSS REFERENCES Discrimination against applicant for employment asserting workers' compensation claim, see @ 710 of this title. Human immuno-deficiency virus (HIV) testing generally, see @ 1127 et seq. of Title 18. Unfair labor practices, see @ 1621 of this title. ANNOTATIONS Burden of proof, 2 Cited, 4 Construction, 1a Employment status, 1b Evidence, 3 Public policy, 1 1. PUBLIC POLICY. Complaint by employees that they were discharged from their employment solely on the basis of their age stated a cause of action under public policy exception to at will employment doctrine, where provisions of this section concerning age discrimination were not in effect at time of alleged wrongful discharge. Payne v. Rozendaal (1986) 147 Vt. 488, 520 A.2d 586. 1a. CONSTRUCTION. An employer may be an "individual" under this section. McHugh v. University of Vermont, 758 F. Supp. 945 (D. Vt. 1991). 1b. EMPLOYMENT STATUS. Active-duty members of the Department of the Army assigned to Reserve Officers' Training Corps (ROTC) Program at state university were employees of the federal government and not "employers" under this section. McHugh v. University of Vermont, 758 F. Supp. 945 (D. Vt. 1991). 2. BURDEN OF PROOF. To prove retaliatory discrimination in violation of this section, plaintiff must initially prove a prima facie case of discrimination; then the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the conduct; if defendant so articulates, plaintiff must prove that those reasons are a mere pretext. Sprague v. University of Vermont, 661 F. Supp. 1132 (D. Vt. 1987). In case involving an allegation of retaliatory discharge, the plaintiff has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination; if plaintiff succeeds in proving his or her prima facie case, the burden of production of evidence then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the alleged retaliatory conduct; if the defendant succeeds in carrying this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Cobb v. Dufresne-Henry, Inc., 603 F. Supp. 1048 (D. Vt. 1985). In a case involving an alleged retaliatory discharge, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. In retaliatory discharge cases, a plaintiff must prove, through admissible evidence presented at trial, that (1) he or she was engaged in a protected activity; (2) he or she was discharged; and (3) there was a causal connection between the participation in the protected activity and the discharge. Id. In retaliatory discharge cases, if the defendant challenges causation, either by introducing evidence of no causal link, or of other cause, the burden is on the plaintiff to show that, but for the protected activity, no action would have taken place; the employee need not prove that his or her activity was the sole basis for the employer's action, but the employee must prove that but for the activity, he or she would not have been fired. Id. In an action under this section for discrimination in hiring on basis of sex, the critical questions are whether the plaintiff has established a prima facie case of discrimination and, if so, whether the employer's evidence is sufficient to establish some legitimate nondiscriminatory reason for refusal to hire. State v. Whitingham School Board (1979) 138 Vt. 15, 410 A.2d 996. In a sex discrimination in hiring action under this section, the plaintiff must establish that one discriminated against belonged to a protected minority, applied for and was qualified for a job opening, was rejected, and that the employer continued to seek applicants having qualifications like the rejected person, and after such prima facie case is established, the employer has the burden of showing its decision was based on a legitimate consideration not condemnable as discriminatory under the law, after which the plaintiff must be afforded an opportunity to show that the justification put forth by employer is merely a pretext. Id. 3. EVIDENCE. In sex discrimination in hiring action, complainant's statistical evaluation of ratio of male to female teachers statewide in elementary and secondary levels as against ratio in school district which did not hire her was of little probative value where there were only seven elementary and twenty-one secondary level teachers in the district; and the evidence was of little, if any, value where it could not be determined which teachers were hired after this subchapter became law. State v. Whitingham School Board (1979) 138 Vt. 15, 410 A.2d 996. In sex discrimination in hiring action, where lower court treated as irrelevant the employer's comparison of complainant and person hired with respect to background, qualifications and experience and employer's claim it hired the person with the superior qualifications, the court erroneously ignored the most basic legitimate nondiscriminatory consideration for a hiring decision and should have focused on whether that consideration was a mere pretext for impermissible discrimination, and cause, which resulted below in order that complainant be hired, would be remanded for new hearing and evaluation of the evidence. Id. 4. CITED. Cited in State v. Whitingham School Board (1979) 140 Vt. 405, 438 A.2d 394; Galvin v. State, 598 F. Supp 144 (D. Vt. 1984); Packard v. Gordon (1987) 148 Vt. 579, 537 A.2d 140; In re Gorruso (1988) 150 Vt. 139, 549 A.2d 631; Wood v. Vermont Insurance Management, Inc., 749 F. Supp. 558 (D. Vt. 1990); Morse v. University of Vermont, 776 F. Supp. 844 (D. Vt. 1991). LAW REVIEW COMMENTARIES State v. Whitingham School Board: A Unique Employment Discrimination Loophole For Vermont Employers, see 6 Vt. L. Rev. 119 (1982). TITLE 21. LABOR CHAPTER 22. VERMONT MUNICIPAL LABOR RELATIONS ACT 21 V.S.A. @ 1726 (1992) @ 1726. Unfair labor practices (a) It shall be an unfair labor practice for an employer: (1) To interfere with, restrain or coerce employees in the exercise of their rights guaranteed by this chapter or by any other law, rule or regulation. (2) To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it; provided that an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay. (3) By discrimination in regard to hiring or tenure of employment or by any term or condition of employment to encourage or discourage membership in any employee organization. (4) To discharge or otherwise discriminate against an employee because he has filed charges or complaints or given testimony under this chapter. (5) To refuse to bargain collectively in good faith with the exclusive bargaining agent. (6) To refuse to appropriate sufficient funds to implement a written collective bargaining agreement. (7) To discriminate against an employee on account of race, color, religion, creed, sex, sexual orientation, national origin, age or political affiliation. (8) Nothing in this chapter or any other statute of this state shall preclude a municipal employer from making an agreement with the exclusive bargaining agent to require an agency service fee to be paid as a condition of employment, or to require as a condition of employment membership in such employee organization on or after the 30th day following the beginning of such employment or the effective date of such agreement, whichever is the later. No municipal employer shall discharge or discriminate against any employee for nonpayment of an agency service fee or for nonmembership in an employee organization: (A) If he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members; or (B) If he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. (b) It shall be an unfair labor practice for an employee organization or its agents: (1) To restrain or coerce employees in the exercise of the right guaranteed to them by law, rule or regulation. However, this subdivision shall not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein, provided such rules are not discriminatory. (2) To restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or adjustments of grievances. (3) To cause or attempt to cause an employer to discriminate against an employee in violation of this title or to fail or refuse to represent all employees in the bargaining unit without regard to membership in such organization. (4) To refuse to bargain collectively in good faith with a municipal employer. (5) To engage in, or to induce or encourage any person to engage in a strike or a refusal in the course of his employment to use, transport or otherwise handle or work on any goods, articles, materials or commodities or to perform any services; or to threaten, coerce or restrain any person with the aim of forcing or requiring any employee to join any employee organization or forcing or requiring any person to cease doing business with any other person, in the course of regular municipal business. (6) To require employees covered by an agency service fee agreement or other union security agreement authorized under subsection (a) of this section to pay an initiation fee which the board finds excessive or discriminatory under all the circumstances, including the practices and customs of employee organizations representing municipal employees, and the wages paid to the employees affected. (7) To cause or attempt to cause a municipal employer to pay or deliver or agree to pay or deliver any money or other thing of value in the nature of an exaction, for services which are not performed or not to be performed or which are not needed or required by the municipal employer. (8) To picket or cause to be picketed, or threaten to picket or cause to be picketed, the municipal employer where an object thereof is forcing or requiring the municipal employer to recognize or bargain with an employee organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select the employee organization as their collective bargaining representative. (9) To discriminate against a person seeking or holding membership therein on account of race, color, religion, creed, sex, sexual orientation, national origin, age or political affiliation. (10) To penalize a person for exercising a right guaranteed by the constitution or laws of the United States or the state of Vermont. (11) To cause or attempt to cause the discharge from employment of employees who, because of religious beliefs, refuse membership therein. HISTORY: Added 1973, No. 111, @ 1; amended 1991, No. 135 (Adj. Sess.), @@ 16, 17. NOTES: REVISION NOTE. In subdiv. (b)(1), substituted "this subdivision" for "this paragraph" to conform reference to V.S.A. style. In subdiv. (b)(6), substituted "subsection (a)" for "section (a)" to conform reference to V.S.A. style. AMENDMENTS--1991 (ADJ. SESS.). Inserted " sexual orientation" following "sex" in subdivs. (a)(7) and (b)(9). ANNOTATIONS Bar to claim or consideration of issue, 4 Cited, 5 Collective bargaining, 2 Construction with other laws, 1/2 Discharges, 1 Work assignment, 3 1/2. CONSTRUCTION WITH OTHER LAWS. The provisions of subdivision (a)(8) of this section permitting agency service fee agreements for municipal employees were not extended to teachers by virtue of the enactment of section 1735 of this title, which provides that teachers shall be considered municipal employees for purposes of representation in, and prevention of, unfair labor practices under sections 1726-1729 of this title, since section 1735 also provides that it does not alter or repeal the provisions of the Labor Relations for Teachers Act (chapter 57 of Title 16), and agency fee agreements are prohibited by section 1982(a) of that Act. Weissenstein v. Burlington Board of School Commissioners (1988) 149 Vt. 288, 543 A.2d 691. 1. DISCHARGES. Discharging employees for engaging in a lawful strike is an unfair labor practice. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department (1987) 148 Vt. 26, 527 A.2d 1150. At the heart of any employment discharge allegedly linked to anti-union discrimination is the question of the employer's motivation, and guidelines in examining question whether a discharge was for cause or because of union activity are whether employer knew of the activity, whether there was a climate of coercion and whether the timing of the discharge is suspect. Ohland v. Dubay (1975) 133 Vt. 300, 336 A.2d 203. 2. COLLECTIVE BARGAINING. The duty to bargain in good faith is an obligation to participate actively in the deliberations, so as to indicate a present intention to find a basis for agreement. International Brotherhood of Electrical Workers, Local 300 v. Enosburg Falls Water & Light Department (1987) 148 Vt. 26, 527 A.2d 1150. Employer bad faith bargaining may be manifested in many ways, requiring an analysis of the totality of the employer's conduct within the context in which the bargaining took place in order to determine whether there has been a failure to bargain in good faith. Id. Fact that employer's representative at mediation session lacked authority to enter into a binding agreement did not, in and of itself, constitute an unfair labor practice, but was merely some evidence, to be considered in conjunction with other conduct, of employer bad faith bargaining. Id. It is a violation of this section for an employer to refuse to bargain in good faith. Burlington Fire Fighters Association v. City of Burlington (1983) 142 Vt. 434, 457 A.2d 642. When an employer, without first consulting a union with which it is carrying on bona fide contract negotiations, institutes a unilateral change in conditions of employment, it per se violates its duty under subdivision (a)(5) of this section to bargain in good faith. Id. Where a regulation adopted by the City of Burlington in 1974 required fire fighters to be in uniform at all times in the station, a 1980 regulation which allowed the fire fighters to wear casual apparel prior to roll call and after completing their tour of duty constituted a change in a condition of employment as defined by section 1722 of this title, and since the new regulation was unilaterally imposed by the City during a period when it was engaged in contract negotiations with the Fire Fighters Association, the City committed an unfair labor practice. Id. 3. WORK ASSIGNMENT. Where bus company employee working at terminal on "terminal duty" was involved in incident relating to a missing fare box, was fired, asked to be allowed to resign instead, company manager verbally consented, employee's letter of resignation was never accepted, two weeks later he asked for and received reinstatement with no loss of seniority, a couple months later terminal duty came up for bidding and employee, who had the most longevity and thus seniority, was refused the job, partly on ground that union contract gave the shop steward, granted the job, seniority over everyone, it was an unfair labor practice on the part of the union and the company to give the steward such seniority; but because of the fare box incident, company had a legitimate business purpose in not giving employee the terminal duty and employee had no right to recovery. Dube v. Chauffeurs, Teamsters & Warehousemen, Local No. 597 (1981) 139 Vt. 394, 430 A.2d 440. 4. BAR TO CLAIM OR CONSIDERATION OF ISSUE. Parties to a collective bargaining agreement are required to exhaust available contractual remedies before a statutory unfair labor practice charge will lie under this section. Burlington Area Public Employees Union v. Champlain Water District (1991) 156 Vt. 516, 594 A.2d 421. In considering unfair labor practice charge, labor relations board erred in concluding that because a violation of this chapter could be made out, the board should not defer to the grievance process provided in the parties' collective bargaining agreement. Id. Litigation before state labor relations board and state supreme court, focusing on issue whether discharge of city employee constituted an unfair labor practice under this section, and not covering constitutional issues regarding the discharge, did not, by means of res judicata, bar federal district court from considering claims of employee that discharge violated constitutional rights. Ohland v. City of Montpelier, 467 F. Supp. 324 (D. Vt. 1979). In deciding whether constitutional rights were violated by city's discharge of policeman, federal district court was not estopped from making an independent review of any issue decided by the state labor relations board in unfair labor practice proceeding before it, such as whether policeman was a probationary employee and whether he was discharged for cause or for union involvement, but district court was precluded from examining issues fully and fairly litigated in state supreme court and concluded by a final judgment, the determination of which was necessary to the judgment rendered. Id. 5. CITED. Cited in Chittenden South Education Association, Hinesburg Unit v. Hinesburg School District (1986) 147 Vt. 286, 514 A.2d 1065; Hinesburg School District v. Vermont NEA (1986) 147 Vt. 558, 522 A.2d 222. VERMONT ADVANCE LEGISLATIVE SERVICE 1993 REGULAR SESSION ACT 39 S. 102 1993 Vt. ALS 39; 1993 Vt Laws 39; 1993 Vt. ACT 39; 1993 Vt. S. 102 SYNOPSIS: AN ACT RELATING TO SEXUAL HARASSMENT IN THE WORKPLACE. It is hereby enacted by the General Assembly of the State of Vermont: [*1] Sec. 1. LEGISLATIVE PURPOSE (a) The existing Vermont Fair Employment Practices Act makes it unlawful for an employer, labor organization, or employment agency to harass an employee or applicant because of race, color, sex, age, religion, national origin, sexual orientation, ancestry, place of birth, or disability. The legislature finds and declares that it is the right of every employee, prospective employee, and member or potential member of a labor organization not to be subjected to unwelcome and intimidating sexual conduct in employment, by an employment agency or by a labor organization. The legislature further finds and declares that sexual harassment, where it exists, is a serious problem, inflicting harm on its victims, reducing employee morale and productivity and exposing employers to substantial legal liability. The legislature further finds and declares that it is the purpose of this act to facilitate the identification of incidents of sexual harassment so that such acts may cease, and in so doing, this act may increase the reporting of such incidents, an effect which should be viewed as furthering the policy of this act. (b) It is the intent of the Senate and House of Representatives of the Vermont General Assembly, in exercising the power to make their own rules conferred by Chapter II of the Vermont Constitution, to be guided by the provisions of this act in the adoption of comparable rules relating to sexual harassment of members and employees of the legislative branch. [*2] Sec. 2. 21 V.S.A. @ 495d(1) is amended to read: (1) "Employer" means any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, AND ANY AGENT OF SUCH EMPLOYER, which has one or more individuals performing services for it within this state. [*3] Sec. 3. 21 V.S.A. @ 495d(13) is added to read: (13) "SEXUAL HARASSMENT" IS A FORM OF SEX DISCRIMINATION AND MEANS UNWELCOME SEXUAL ADVANCES, REQUEST FOR SEXUAL FAVORS, AND OTHER VERBAL OR PHYSICAL CONDUCT OF A SEXUAL NATURE WHEN: (A) SUBMISSION TO THAT CONDUCT IS MADE EITHER EXPLICITLY OR IMPLICITLY A TERM OR CONDITION OF EMPLOYMENT; OR (B) SUBMISSION TO OR REJECTION OF SUCH CONDUCT BY AN INDIVIDUAL IS USED AS A COMPONENT OF THE BASIS FOR EMPLOYMENT DECISIONS AFFECTING THAT INDIVIDUAL; OR (C) THE CONDUCT HAS THE PURPOSE OR EFFECT OF SUBSTANTIALLY INTERFERING WITH AN INDIVIDUAL'S WORK PERFORMANCE OR CREATING AN INTIMIDATING, HOSTILE OR OFFENSIVE WORK ENVIRONMENT. [*4] Sec. 4. 21 V.S.A. @ 495h is added to read: @ 495H. SEXUAL HARASSMENT (A) ALL EMPLOYERS, EMPLOYMENT AGENCIES AND LABOR ORGANIZATIONS HAVE AN OBLIGATION TO ENSURE A WORKPLACE FREE OF SEXUAL HARASSMENT. (B) EVERY EMPLOYER SHALL: (1) ADOPT A POLICY AGAINST SEXUAL HARASSMENT WHICH SHALL INCLUDE: (A) A STATEMENT THAT SEXUAL HARASSMENT IN THE WORKPLACE IS UNLAWFUL; (B) A STATEMENT THAT IT IS UNLAWFUL TO RETALIATE AGAINST AN EMPLOYEE FOR FILING A COMPLAINT OF SEXUAL HARASSMENT OR FOR COOPERATING IN AN INVESTIGATION OF SEXUAL HARASSMENT; (C) A DESCRIPTION AND EXAMPLES OF SEXUAL HARASSMENT; (D) A STATEMENT OF THE RANGE OF CONSEQUENCES FOR EMPLOYEES WHO COMMIT SEXUAL HARASSMENT; (E) IF THE EMPLOYER HAS MORE THAN FIVE EMPLOYEES, A DESCRIPTION OF THE PROCESS FOR FILING INTERNAL COMPLAINTS ABOUT SEXUAL HARASSMENT AND THE NAMES, ADDRESSES, AND TELEPHONE NUMBERS OF THE PERSON OR PERSONS TO WHOM COMPLAINTS SHOULD BE MADE; AND (F) THE COMPLAINT PROCESS OF THE APPROPRIATE STATE AND FEDERAL EMPLOYMENT DISCRIMINATION ENFORCEMENT AGENCIES, AND DIRECTIONS AS TO HOW TO CONTACT SUCH AGENCIES. (2) POST IN A PROMINENT AND ACCESSIBLE LOCATION IN THE WORKPLACE, A POSTER PROVIDING, AT A MINIMUM, THE ELEMENTS OF THE EMPLOYER'S SEXUAL HARASSMENT POLICY REQUIRED BY SUBDIVISION (1) OF THIS SUBSECTION. (3) PROVIDE TO ALL EMPLOYEES AN INDIVIDUAL WRITTEN COPY OF THE EMPLOYER'S POLICY AGAINST SEXUAL HARASSMENT. (C) EMPLOYERS SHALL PROVIDE INDIVIDUAL COPIES OF THEIR WRITTEN POLICIES TO CURRENT EMPLOYEES NO LATER THAN NOVEMBER 1, 1993, AND TO NEW EMPLOYEES UPON THEIR BEING HIRED. EMPLOYEES WHO HAVE PROVIDED INDIVIDUAL WRITTEN NOTICE TO ALL EMPLOYEES WITHIN THE 12 MONTHS PRIOR TO OCTOBER 1, 1993, SHALL BE EXEMPT FROM HAVING TO PROVIDE AN ADDITIONAL NOTICE DURING THE 1993 CALENDAR YEAR. (D) THE COMMISSIONER OF LABOR AND INDUSTRY SHALL PREPARE AND PROVIDE TO EMPLOYERS SUBJECT TO THIS SECTION A MODEL POLICY AND A MODEL POSTER, WHICH MAY BE USED BY EMPLOYERS FOR THE PURPOSES OF THIS SECTION. (E) A CLAIM THAT AN INDIVIDUAL DID NOT RECEIVE THE INFORMATION REQUIRED TO BE PROVIDED BY THIS SECTION SHALL NOT, IN AND OF ITSELF, RESULT IN THE AUTOMATIC LIABILITY OF ANY EMPLOYER TO ANY CURRENT OR FORMER EMPLOYEE OR APPLICANT IN ANY ACTION ALLEGING SEXUAL HARASSMENT. AN EMPLOYER'S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THIS SECTION DOES NOT INSULATE THE EMPLOYER FROM LIABILITY FOR SEXUAL HARASSMENT OF ANY CURRENT OR FORMER EMPLOYEE OR APPLICANT. (F) EMPLOYERS AND LABOR ORGANIZATIONS ARE ENCOURAGED TO CONDUCT AN EDUCATION AND TRAINING PROGRAM WITHIN ONE YEAR AFTER SEPTEMBER 30, 1993 FOR ALL CURRENT EMPLOYEES AND MEMBERS, AND FOR ALL NEW EMPLOYEES AND MEMBERS THEREAFTER WITHIN ONE YEAR OF COMMENCEMENT OF EMPLOYMENT, THAT INCLUDES AT A MINIMUM ALL THE INFORMATION OUTLINED IN THIS SECTION. EMPLOYERS ARE ENCOURAGED TO CONDUCT ADDITIONAL TRAINING FOR CURRENT SUPERVISORY AND MANAGERIAL EMPLOYEES AND MEMBERS WITHIN ONE YEAR OF SEPTEMBER 30, 1993, AND FOR NEW SUPERVISORY AND MANAGERIAL EMPLOYEES AND MEMBERS WITHIN ONE YEAR OF COMMENCEMENT OF EMPLOYMENT OR MEMBERSHIP, WHICH SHOULD INCLUDE AT A MINIMUM THE INFORMATION OUTLINED IN SUBSECTION (B) OF THIS SECTION AND THE SPECIFIC RESPONSIBILITIES OF SUPERVISORY AND MANAGERIAL EMPLOYEES AND THE METHODS THAT THESE EMPLOYEES MUST TAKE TO ENSURE IMMEDIATE AND APPROPRIATE CORRECTIVE ACTION IN ADDRESSING SEXUAL HARASSMENT COMPLAINTS. EMPLOYERS, LABOR ORGANIZATIONS AND APPROPRIATE STATE AGENCIES ARE ENCOURAGED TO COOPERATE IN MAKING THIS TRAINING AVAILABLE. [*5] Sec. 5. EFFECTIVE DATE This act shall take effect October 1, 1993. HISTORY: Approved: June 3, 1993