Employment | Discrimination | New Hampshire

Yes. New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing has been in effect since January 1, 1998 (see Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997).

Yes, on June 8, 2018 Governor Chris Sununu signed into law House Bill 1319, AN ACT prohibiting discrimination on the basis of gender identity, which banned discrimination in employment, public accommodations and housing based on gender identity. The law went into effect on July 8, 2018. The law amends NH RSA 354-A by adding “gender identity” to the list of protected characteristics. With the passage of this law, New Hampshire joins the other five New England states in banning transgender discrimination.

In the law, gender identity “means a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity provided, however, that gender-related identity shall not be asserted for any improper purpose.”

Yes. New Hampshire non-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality” (NH RSA 354-A:2, XIV-c). While the courts have not ruled on the meaning of the “perceived” language, it should mean that if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.

New Hampshire’s employment anti-discrimination law applies to public or private employers 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 (NH RSA 354-A:7, I). 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 (NH RSA 354-A:7, II, III).

New Hampshire State Division of Personnel also has an equal employment opportunity program which ensures that the state employs qualified people regardless of sexual orientation (NH RSA 21-I:42, XVI). Moreover, the State is forbidden from discriminating in the classified service with respect to sexual orientation (NH RSA 21-I:52, I).

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

• The law does not apply to employers with fewer than 6 employees. An employer’s spouse, parent, or child do not count as employees (NH RSA 354-A:2, VI, VII).
• The law does not apply to a non-profit exclusively social club or a non-profit fraternal or religious association or corporations (NH RSA 354-A:2, VII).
• Any employer, agency, or labor organization may defend against a discrimination claim by arguing that it is a “bona fide occupational qualification” of the job in question to have a non-LGBT employee fill it (NH RSA 354-A:7, I, II, III). Luckily, although this defense is allowed by law, it is strictly applied and very rarely successful (See, e.g., Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983)).

Yes, New Hampshire law expressly forbids sexual harassment. The law defines sexual harassment as:

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 (NH RSA 354-A:7, V).

Yes. It is just as unlawful to sexually harass an LGBT individual as it is to harass anyone else. 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 (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)). Several state courts have reached the same result under their state non-discrimination laws (Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)).

You may file a complaint with the New Hampshire Commission on Human Rights (CHR) by printing out an Intake Questionnaire from the CHR website, https://www.nh.gov/hrc/howto.html, and mailing it to:

Intake Department

NH Commission for Human Rights

2 Industrial Park Drive

Concord, NH 03301

Alternatively, you may speak with an intake investigator by calling (603) 271-2767 or 1-800-735-2964 (toll free for NH). The Attorney General can also file claims of discrimination.

Once the Intake Questionnaire is filed, a CHR investigator will decide whether you have the basis to file a formal charge.

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the CHR process, but employers and other defendants are likely to have legal representation.

A complaint must be filed with the CHR within 180 days of the discriminatory act or acts (NH RSA 354-A:21, III). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

The CHR assigns an investigator to conduct an impartial investigation of the charges. The investigator may send out written questions (interrogatories) to be answered under oath, or request documents from either party. If the case is not dismissed for technical reasons, an assigned Commissioner will consult the investigator’s final report and 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 CHR will schedule a public hearing before three Commissioners. You can choose to be represented at this hearing by a private attorney or a lawyer for the CHR (See generally NH RSA 354-A:21). After the hearing, the Commission will issue a decision either finding in your favor and ordering appropriate relief, or finding in favor of the responding party and dismissing the charge. Either one of you can appeal the Commission’s decision to Superior Court.

If the CHR does not find probable cause, you may also appeal to the Superior Court. In order to be successful, your appeal must show that the CHR’s decision is either unlawful or unreasonable by a clear preponderance of the evidence (NH RSA 354-A:21, II-a).

In all types of cases, the Commission may order the respondent to cease and desist the unlawful conduct. The CHR may also order a respondent to do something affirmatively, such as hire, reinstate, or upgrade an employee or restore a person to a labor organization. Employees may also receive back pay, and all victims of discrimination are eligible for compensatory damages, including emotional distress damages. Finally, the CHR may impose an administrative fine, payable to the State, of up to $50,000, depending on how many past offenses the respondent has committed (NH RSA 354-A:21, II-d).

Note that if your complaint is dismissed and deemed frivolous, the defendant may seek to collect reasonable costs and attorney’s fees from you (NH RSA 354-A:21 II-f).

Yes. New Hampshire’s employment non-discrimination laws forbid discriminating against someone because of sexual orientation as well as age, sex, race, color, marital status, physical or mental disability, religious creed, or national origin (NH RSA 354-A:7).

Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).

While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the CHR first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with CHR 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 CHR has terminated the case (United States Code 42 sec. 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.) 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 CHR cross-file your complaint with the EEOC.

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

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.

State or Federal Court: After filing with the CHR, EEOC, or both, a person may decide to remove their 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 (NH RSA 354-A:21-a). Similarly, once the CHR process is complete, either party may ask a court to review the Commission’s decision (NH RSA 354-A:22, I).

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

It is illegal for your employer or landlord to retaliate or punish you because you filed a complaint. If they do so, you can file an additional complaint against them for retaliation. “Retaliation” protections cover those who oppose unlawful conduct, who have filed a complaint, testified, or assisted in any proceeding (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)).

Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.

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, they may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, 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, as well as any contracts, job evaluations, memos, discharge letters and the like.