Youth Employment | New Hampshire
Does New Hampshire have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination in employment?
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).
Does the law protect transgender people in employment?
Also, some non-statutory protections do exist: in June 2016, New Hampshire Governor Maggie Hassan issued an Executive Order prohibiting discrimination based on gender identity or gender expression in state employment, state-run programs, and government contracts (NH Exec. Order No. 2016-04 (June 30, 2016), http://governor.nh.gov/media/orders/documents/eo-2016-04.pdf). GLAD continues to work with organizations such as Freedom New Hampshire to ensure a future where all transgender Granite Staters receive full and equal protection under the law. For more information about the campaign, see http://www.freedomnewhampshire.org/.
Does the law protect people perceived as being gay, lesbian, and bisexual in employment?
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.
What does employment anti-discrimination law forbid? To whom does the law apply?
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)).
Does New Hampshire law forbid sexual harassment?
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:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
- 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).
Does this law protect LGBT individuals?
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)).