Anti-Discrimination Law in New Hampshire

New Hampshire's anti-discrimination law prohibits discrimination based on sexual orientation and HIV status.

Questions & Answers (Accurate as of February 18, 2014)

Does New Hampshire have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes. On Jan. 1, 1998, New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing came into effect. It only took three years to pass in the Legislature and had the support of the Roman Catholic Church.1

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes, the law explicitly protects people perceived to be gay. The non-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality.” 2 While the courts have not ruled on the meaning of the “perceived” language, it should mean, for example, that a person who is fired even while they are closeted, or because they are perceived to be gay (whether they are or not), may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically. But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian or perceived them to be so.

Employment

What does the law forbid? To whom does the law apply?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees. It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation.3 This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly-situated co-workers.

The law also applies to labor organizations (e.g. unions) and employment agencies.4

The equal employment opportunity program of the State Division of Personnel must ensure that the State employs qualified people regardless of sexual orientation.5 Moreover, the State is forbidden from discriminating in the classified service with respect to sexual orientation.6

As broad as the law is, there are several exemptions:

  • The law does not apply to an employer with fewer than 6 employees. An employer’s spouse, parent, or child do not count as employees.7
  • The law is not applicable to an employer which is a non-profit social club or a fraternal or religious association or corporation.8 Effective July 1, 2006, New Hampshire amended the definition of “employer” to include non-profit educational and charitable institutions.
  • There are no general occupational exemptions from the reach of the non-discrimination law. But an employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-gay.9 While that defense is allowed in the law, it is strictly applied and very rarely successful.10

Does New Hampshire law forbid sexual harassment?

Yes, sexual harassment is expressly prohibited by state law:

“Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitutes sexual harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment.”11

 

Can a gay person be sexually harassed?

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.” Both types of harassment can happen to the same person, and both are forbidden.

The United States Supreme Court and other federal courts have found same-sex sexual harassment to violate sexual harassment laws.12 Several state courts have reached the same result under their state non-discrimination laws.13

Public Accommodations

What is a “place of public accommodation”?

A place that caters or offers its services or facilities or goods to the general public is a place of public accommodation subject to the non-discrimination laws.14 Many types of places can be public accommodations, ranging from a motel, restaurant, rest area, highway or hospital.

What does the law say about discrimination in places of public accommodation?

Such places may not refuse, withhold or deny accommodations, advantages or facilities and privileges of the place of public accommodation because of a person’s sexual orientation.15

Housing

What is prohibited by the housing anti-discrimination law in New Hampshire?

The housing laws are intended to prohibit discrimination by those engaged in most aspects of the business of listing, buying, selling, renting or financing housing or commercial structure, whether for profit or not.16 Most often, these claims involve a refusal by an owner, landlord or real estate broker to sell, or lease, or even negotiate with a person about the housing they desire to obtain. But other practices are forbidden, too, such as:

  • misrepresenting the unavailability of a place when it is in fact available;17
  • applying different terms or conditions based on sexual orientation;18
  • printing or circulating discriminatory notices or advertisements;19
  • evicting a tenant solely on the ground that he or she has AIDS or is regarded as having AIDS;20 and
  • making mortgage and real estate loans on a discriminatory basis,21 i.e. a form of credit protection.

There are several exemptions to the housing laws.

  • A person who owns only one single family house may discriminate if they sell or rent the house without using the sales or services of any broker (or like person) and without circulating any discriminatory ads or notices.22
  • An owner who lives in 3-family, 2-family or 1-family unit is exempt from the law with respect to the rental of the other units.23
  • An owner may discriminate in the rental of rooms as long as they rent not more than 5 rooms and the owner lives in the dwelling.24
  • Religious organizations and organizations supervised by religious organizations which do not rent or sell for commercial (i.e., profit) purposes, may give preference to persons of their same religion (with some exceptions).25
  • Private clubs which provide lodging for their members and not for profit may limit its rentals to such members, or give preference to its members.26

Credit

There are no specific credit protections other than those related to mortgage and real estate loans discussed above.

Services

The patient’s bill of rights now includes the right to receive appropriate care without regard to “sexual orientation.”27 The same protections apply to home health care providers.28

Transgender/Gender Identity Discrimination

What protections exist for transgendered people under the discrimination laws?

There is no explicit protection in the law for transgendered persons in New Hampshire. However, even absent explicit protection, in some cases, an individual’s gender identity may be regarded as “a gay issue” by a person or entity which is discriminating, and therefore allow a person to bring a sexual orientation claim.

In addition, in some cases a transgendered person may have a claim of sex discrimination if he or she is adversely treated at work, or in housing, or in a place of public accommodation, or in a credit transaction. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim.29 For more information, see GLAD’s publication Transgender Legal Issues in New England.

Pursuing a Complaint

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes. The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation as well as because of age, sex, race, color, marital status, physical or mental disability, religious creed or national origin.30 (Note, the housing non-discrimination laws also protect people based on their “familial status.”)

How do I file a complaint of discrimination?

You may file a complaint with the New Hampshire Commission on Human Rights (“CHR,” or “Commission”), 2 Chennel Drive, Concord, NH 03301. Information is available from (603) 271-2767. The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.31

Do I need a lawyer?

You do not need a lawyer at the CHR because the process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the legal process, whether at the CHR or otherwise. Not only are there many legal rules governing the CHR process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the CHR within 180 days of the discriminatory act or acts.32 There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims. The Attorney General can also file claims of discrimination.

What happens after a complaint is filed with the CHR?

The CHR assigns an investigator to look into your case, who may as part of the investigation send out written questions (interrogatories) to be answered under oath or request documents from the parties. If the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further and the respondent will be asked to answer the complaint. After more discovery by the parties of each other’s positions, the Commission can hold a trial type hearing before 3 Commissioners. At that hearing, a person can be represented by a lawyer for the Commission or a private attorney.33 A losing party can appeal to the Superior Court, and a winning party can file a case in Superior Court requesting enforcement of any CHR orders.

If the Commission does not find probable cause, a complainant may appeal to the Superior Court and must then show that the Commission’s decision is unlawful or unreasonable by a clear preponderance of the evidence.34

What are the legal remedies the NHCHR may award for discrimination if an individual wins his or her case there?

Whether a case involves employment, housing or public accommodations, the Commission may order the respondent to cease and desist from the unlawful conduct. The CHR may also order a respondent to do something affirmatively, such as hire, reinstate or upgrade an employee, restore a person to a labor organization, or extend a person the full advantages of a place of public accommodation. Employees may receive back pay, and all victims of discrimination are eligible for compensatory damages, including emotional distress damages. Finally, the Commission may impose an administrative fine (payable to the State), of up to $50,000 depending on how many past offenses the respondent has committed.35

Note that if a person’s complaint is dismissed, and deemed frivolous, a respondent may seek to collect its reasonable costs and attorney’s fees from the complainant.36

Can I also file a complaint with a federal agency?

Yes, in many cases.  Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC).  But if you initially institute your complaint with NHCHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MCAD has terminated the case. (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law.  This is true because there may be overlapping provisions of state and federal law.   For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with NHCHR first but keep in mind the possibility of pursuing a federal claim as well.  If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that NHCHR cross-file your complaint with the EEOC.

LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to NHCHR.  For more information go to:    http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

  1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
  2. State or Federal Court: After filing with the EEOC, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. When claims of discrimination based on state law are removed from the CHR and filed in state superior court, either party may request a jury trial and the court may order the same relief as would the CHR.37

For cases alleging violation of state non-discrimination laws, once a person has completed the CHR process, a party may file a new case in court to review the CHR decision or to seek enforcement of a CHR order.38

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who oppose unlawful conduct, or who have filed a complaint, testified, or assisted in any proceeding.39

What can I do to prepare myself before filing a complaint of discrimination?

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). It is also helpful to have a list of witnesses and other possible victims of discrimination. Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Footnotes

1 See Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997
2 NH RSA 354-A:2, XIV-a
3 NH RSA 354-A:7, I
4 NH RSA 354-A:7, II, III
5 NH RSA 21-I:42, XVI
6 NH RSA 21-I:52, I
7 NH RSA 354-A:2, VI, VII
8 NH RSA 354-A:2, VII
9 NH RSA 354-A:7, I, II, III
10 See, e.g., Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983)
11 NH RSA 354-A:7, V
12 Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Drew v. First Sav. of N.H., 968 F. Supp. 762 (D.N.H. 1997) (acknowledging claim under federal law which failed on the facts presented); King v. Town of Hanover, 959 F.Supp. 62 (D.N.H.  1996) (acknowledging claim under federal law)
13 Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)
14 NH RSA 354-A:3, XIV
15 NH RSA 354-A:17
16 NH RSA 354-A:10
17 A:10, IV
18 A:10, II
19 A:10, III
20 A:10, VI
21 A:10, VII
22 NH RSA 354-A:13, I-a
23 NH RSA A:13, I-b
24 NH RSA A:13, I-c
25 NH RSA A:13, II
26 NH RSA A:13, III
27 NH RSA 151:21, XVI
28 NH RSA 151:21-b, II-b
29 See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989);  Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000)
30 NH RSA 354-A:7
31 NH RSA 354-A:21
32 NH RSA 354-A:21, III
33 See generally NH RSA 354-A:21
34 NH RSA 354-A:21, II-a
35 NH RSA 354-A:21, II-d
36 NH RSA 354-A:21 II-f

37 United States Code 42 sec. 2000e-5(e)(1).

38 NH RSA 354-A:21-a
39 NH RSA 354-A:22, I
40 NH RSA 354-A:19.  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim of gay man)