2023 Vermont Statutes › Title 21 - Labor › Chapter 5 - Employment Practices › § 495d. Definitions

§ 495d. Definitions
As used in this subchapter:
(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, that has one or more individuals performing services for it within this State.
(2) “Employee” means every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.
(3) “Employment agency” means every person, corporation, association, or governmental body representative thereof engaged in the business of advertising for advising, classifying, training, or referral of persons for employment within this State, or that at the direction of any employer advertises, locates, advises, classifies, trains, refers, or selects persons to engage in any employment.
(4) “Labor organization” means any organization or association that represents not less than five employees and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, promotions, or other terms and conditions of employment.
(5) “Individual with a disability” means any natural person who:
(A) has a physical or mental impairment that substantially limits one or more major life activities;
(B) has a history or record of such an impairment; or
(C) is regarded as having such an impairment.
(6) “Qualified individual with a disability” means:
(A) An individual with a disability who is capable of performing the essential functions of the job or jobs for which the individual is being considered with reasonable accommodation to the disability.
(B) Does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
(7) “Physical or mental impairment” means:
(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; or endocrine;
(B) any mental or psychological disorder, such as developmental disability, organic brain syndrome, emotional or mental condition or psychiatric disability, and specific learning disabilities;
(C) the term “physical or mental impairment” includes diseases and conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, and drug addiction and alcoholism.
(8) “Substantially limits” means the degree that the impairment affects an individual’s employability. An individual with a disability who is likely to experience difficulty in securing, retaining, or advancing in employment would be considered substantially limited.
(9) “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and receiving education or vocational training.
(10) “Has a history or record of such an impairment” means that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more life activity.
(11) “Is regarded as having such an impairment” means that the individual:
(A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer as constituting such a limitation;
(B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(C) has none of the impairments defined in subdivision (7)(A) of this section but is treated by an employer as having such an impairment.
(12)(A) “Reasonable accommodation” means the changes and modifications that can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer.
(B) “Reasonable accommodation” may include:
(i) making the facilities used by the employees, including common areas used by all employees such as hallways, restrooms, cafeterias, and lounges, readily accessible to and usable by individuals with disabilities; and
(ii) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and other similar actions.
(C) Factors to be considered in determining whether an undue hardship is imposed by the requirement that reasonable accommodation be made for an individual with a disability include:
(i) the overall size of the employer’s operation with respect to the number of employees, number and type of facilities, and size of budget; and
(ii) the cost for the accommodation needed.
(13)(A) “Sexual harassment” is a form of sex discrimination and means unwelcome sexual advances, requests for sexual favors, and other verbal, physical, written, auditory, or visual conduct of a sexual nature when:
(i) submission to that conduct is made either explicitly or implicitly a term or condition of employment;
(ii) 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
(iii) the conduct has the purpose or effect of interfering with an individual’s work or creating an intimidating, hostile, or offensive work environment.
(B) Sexual harassment need not be severe or pervasive in order to be unlawful pursuant to this subchapter.
(14) “Pregnancy-related condition” means a limitation of an employee’s ability to perform the functions of a job caused by pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
(15) “Crime victim” means any of the following:
(A) a person who has obtained a relief from abuse order issued under 15 V.S.A. § 1103;
(B) a person who has obtained an order against stalking or sexual assault issued under 12 V.S.A. chapter 178;
(C) a person who has obtained an order against abuse of a vulnerable adult issued under 33 V.S.A. chapter 69; or
(D)(i) a victim as defined in 13 V.S.A. § 5301, provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and
(ii) shall include the victim’s child, foster child, parent, spouse, stepchild or ward of the victim who lives with the victim, or a parent of the victim’s spouse, provided that the individual is not identified in the affidavit as the defendant.
(16) “Harass” means to engage in unwelcome conduct based on an employee’s race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition that interferes with the employee’s work or creates a work environment that is intimidating, hostile, or offensive. In determining whether conduct constitutes harassment:
(A) The determination shall be made on the basis of the record as a whole, according to the totality of the circumstances, and a single incident may constitute unlawful harassment.
(B) Incidents that may be harassment shall be considered in the aggregate with varying types of conduct and conduct based on multiple characteristics viewed in totality rather than in isolation.
(C) Conduct may constitute harassment, regardless of whether:
(i) the complaining employee is the individual being harassed;
(ii) the complaining employee acquiesced or otherwise submitted to or participated in the conduct;
(iii) the conduct is also experienced by others outside the protected class involved in the conduct;
(iv) the complaining employee was able to continue carrying out the employee’s job duties and responsibilities despite the conduct;
(v) the conduct resulted in a physical or psychological injury; or
(vi) the conduct occurred outside the workplace. (Added 1975, No. 198 (Adj. Sess.), § 3; amended 1981, No. 65, § 3; 1993, No. 39, §§ 2, 3, eff. Oct. 1, 1993; 1999, No. 103 (Adj. Sess.), § 2; 2013, No. 96 (Adj. Sess.), § 130; 2017, No. 21, § 1, eff. Jan. 1, 2018; 2017, No. 113 (Adj. Sess.), § 146; 2017, No. 184 (Adj. Sess.), § 2; 2023, No. 80, § 2, eff. July 1, 2023.)