BRATTLEBORO — On July 1, amendments to the Fair Employment Practices Act (FEPA) - Vermont's workplace anti-harassment and discrimination law - went into effect.
The amendments make significant changes that broaden protections to employees.
Business owners, heads of organizations, and those responsible for employment compliance should make an effort to understand these changes - and then take whatever meaningful action is necessary to ensure their workplaces are (at a minimum) free from harassment and discrimination under the new requirements.
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Importantly, the amendments expand forms of harassment from only "verbal or physical" to include "written, auditory, or visual."
Essentially, broadening this part of the definition acknowledges that harassment can come in many forms and provides employees with greater protection from it, no matter how they experience it.
The amendments also specifically state that "sexual harassment need not [my emphasis] be severe or persistent in order to be unlawful pursuant to this subchapter."
This is a big change.
Quid pro quo harassment has always had the one-time-is-enough test. Ostensibly, this definition protects an employee if the employer tries to take some kind of adverse action in response to the employee not putting up with harassment by someone who has decision-making authority over their working conditions.
For a hostile work environment (i.e., not quid pro quo), the conduct was previously determined to be harassment only if it fell into the murky territory of "severe and persistent." This change puts employees and employers on notice that all conduct meeting the definition of harassment has the same occurrence threshold.
With regard to the impact the conduct may have on an employee as part of determining if it is harassment, the amendments make the following deletions, noted in brackets:
"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."
Again, this is a significant change.
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The amendments are striving to ensure that work environments are not places where employees need to tolerate harassing behavior at any level and for any length of time. It need not be "substantial," and it need not impede their ability to do their job. It is sufficient that it happens to them or even exists around them.
As HR consultants and trainers, we sometimes get pushback as we walk through examples of how harassment might look in the workplace. We have had individuals actually say, "So I can't say anything anymore?!"
After a few too many times hearing this, one time I said, "Yes. If the only things that have been coming out of your mouth qualify as harassment under these definitions, you should not say anything."
Maybe not the best response, but really - aren't there a whole range of things we can say and do at work that do not come anywhere near harassment?
And why should one person's preference to talk "however they want" take precedence over another person being treated in a way that is/feels derogatory, demeaning, dehumanizing, or objectifying or is discriminatory in any way?
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Fortunately, I suspect that most employers have a much higher bar for behavior and workplace culture than that. And yet, even those may be feeling a little squeamish about the changes.
Understandably, some may also share the sentiment, "I just want everyone to show up and behave like adults," a phrase we have heard on a few occasions.
I get that frustration. However, in my experience the employers who not only have the fewest interpersonal issues in the workplace (including zero allegations of harassment) but also have a truly healthy and vibrant culture are the ones who cultivate an intentional place to work.
These employers include thorough onboarding for new employees, a meaningful process for performance reviews, manager training and development, and actively soliciting employee feedback about the workplace and its leaders.
Oddly, mandated harassment training was not included in these updates. However, it seems unwise to avoid this simply because it is not required.
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Employees and supervisors alike need to understand the recent changes to the law. Keep in mind that Vermont's law applies not only to coworker-and-supervisor interactions but to everyone who has anything to do with the employer: customers, clients, vendors, volunteers, board members.
Everyone.
Lastly, when providing training and sharing expectations, make sure attention is given to what is permitted and desired, not just what is not. What actions and practices will foster the kind of environment you and others want to spend so much of your time in (and at the same time will decrease the likelihood of harassment)?
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What do employers need to do now?
1. Amend or replace your old harassment policy.
2. Tell employees about the revised policy as soon as possible. (Don't just put it in the handbook.)
3. Begin planning for how you will provide training about the changes. Consider training that is broader in scope than simply understanding legal definitions.
4. Look at how pay decisions are made to ensure they are not inadvertently discriminatory.
5. Take all complaints and/or suspected behavior concerning harassment and discrimination seriously. Remember, an employer has a duty to know what is going on and take corrective action whether anyone complains about harassment or not.
Jennifer Jacobs, a human resource consultant, owns Adaptiva HR, a consulting firm that provides human resources support, management and leadership coaching, and training services for workplaces.
This Voices Viewpoint was submitted to The Commons.