Filing a Discrimination Claim – New Hampshire

1. What kinds of discrimination are against state law in New Hampshire?

The New Hampshire Law Against Discrimination makes it illegal for an employer to discriminate on the basis of age, sex, race, color, marital status, physical or mental disability, religious creed, or national origin, and sexual orientation. “Employer” does not include any employer with fewer than 6 employees, nor any non-profit exclusively social club, fraternal or religious association or religious corporation.

Protections for pregnant employees are stronger under New Hampshire state law than under federal law, as state law requires that a pregnant employee be allowed to take time off for any pregnancy-related illness, and be reinstated to her job after giving birth, even if other temporarily-disabled employees are not allowed time off or reinstatement rights. More Information on Pregnancy Discrimination

2. How do I file a discrimination claim in New Hampshire?

In New Hampshire, it is possible to file a discrimination claim either with the state administrative agency, the New Hampshire Commission for Human Rights (NHCHR) or the federal administrative agency, located in Boston, Massachusetts, the Equal Employment Opportunity Commission (EEOC) (which covers employers with 6 or more employees, including non-profits exempt from state law). The two agencies have what is called a work-sharing agreement, which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to either of the agencies that you want it to cross-file the claim with the other agency. However, it is recommended that you always file first with the NHCHR (603) 271-2767 because it provides better and more prompt investigations and has strong enforcement power lacking in the EEOC. In addition, the NHCHR has a better mediation process for N.H. employees than does the EEOC, because the NHCHR mediations occur in New Hampshire. In addition, New Hampshire law covers categories presently not covered by federal law, including sexual orientation and marital status.

To file a claim with the NHCHR, contact its office below. More information about filing a claim with the NHCHR can be found at http://www.nh.gov/hrc/index.html.

New Hampshire Commission for Human Rights 2 Chenell Drive Concord, NH 03301-8501 Phone: (603) 271-2767 Fax: (603) 271-6339

To file a claim with the EEOC, contact the EEOC office below. More information about filing a claim with the EEOC can be found at http://www.eeoc.gov/facts/howtofil.html.

EEOC Boston Area Office John F. Kennedy Federal Building Government Center 4th Floor, Room 475 Boston, MA 02203 Phone: (617) 565-3200 TTY: (617) 565-3204

3. What are my time deadlines?

You have 180 days following the discrimination within which to file under N.H. state law, and 300 days following the discrimination within which to file under federal law.

You do not need to have an attorney to file at either the NHCHR or the EEOC, but if you prefer to have an attorney, and you have enough time before the deadlines to meet with and retain counsel, then your attorney will draft the discrimination filing papers. Note that both the state and federal anti-discrimination statues include a “fee shifting” provision, meaning that if you win your case, the employer will have to pay to you the reasonable value of your attorney fees, usually the hourly rate of your lawyer times the number of hours she worked. Thus, even if you cannot afford to hire an attorney, you may be able to retain an attorney on a contingency fee basis because the attorney can work on even a small claim and be awarded her entire fees.

Note that in all but extremely frivolous cases, if you lose your case, you are not required to pay the employer’s fees.

However, if the 180 day state law deadline or the 300 day federal deadlines are close to expiring, then do not delay in contacting the NHCHR or EEOC to file a claim. The agency personnel will draft the discrimination filing for you, and then you must check it for accuracy, sign it before a notary and get it back to the agency before the 180 or 300 day deadline deadline date. Remember: you can always retain your own lawyer later, and she may amend the original filing if necessary.

4. How can I or my attorney pursue a claim in court in New Hampshire?

Presently, once you file at the NHCHR you have the right to take your case out of the agency, and into court, after 180 days following your initial NHCHR filing (and earlier with permission). However, you must file that lawsuit within 3 years of the discrimination. Presently, if you have decided to leave your case in the agency and its investigation results in a Probable Cause (PC) determination, a NHCHR administrative trial will occur unless the employer chooses to take the case to court, which, unfortunately, under present law, it can do following the PC. ( Note: at this writing, in 2009 there is legislation pending which, if enacted, will eliminate the power of the employer to force an employee into court if the employee wishes to stay at the NHCHR for an agency hearing, a more prompt, less formal proceeding than a court trial.)

If, following a PC, you prefer to leave your case at the NHCHR and the employer does not take the case to court, then, you will have an administrative hearing before 3 of the 7 commissioners at which evidence is presented through witness testimony and documentation. The NHCHR Commissioners have the same power as a court to award back pay, front pay, reinstatement, attorney fees, and compensatory damages. They can also issue a fine against the employer, but lack the power of a court to award “enhanced compensatory damages” which are awardable under New Hampshire law for willful or reckless behavior.

Many cases are resolved at the NHCHR before the investigation is completed and before a PC or NPC is issued. Such “settlements” will be documented by a writing signed by both parties in which you will give up your legal rights in return for the resolution agreed to by you and the employer, which usually includes, at minimum, a monetary payment, but which can also include an apology, reinstatement, cleansing of a personnel file, implementation of anti-discrimination trainings in the workplace, and/or other actions the parties agree to.

If your case gets a No Probable Cause (NPC) under state law, your state law claim is “dead” unless you successfully appeal that determination. However, even if your state claim is “dead”, you may still pursue your federal claim in court, because the EEOC process does not take away your right to start fresh (“de novo”) in court under federal law. Your lawyer would request a “Right to Sue” letter from the EEOC if it did not already issue one to you upon the NHCHR issuing the NPC, and you have 90 days from the date you receive that “Right to Sue” letter in which to file your federal claims. (Be sure to mark down the date when you receive it to provide proof of when the 90 days is up.) If you have received one of these agency letters, contact an attorney immediately and when you first connect with the law office, be sure you say at the beginning of the call that you have a Right to Sue letter from the EEOC and the 90 days runs out on ______. That way, the law office can schedule a prompt consultation or, if they are not available promptly, you don’t lose time before contacting a different law firm. Remember, if your lawsuit is not filed by the “Right to Sue Letter” deadline, then you will most likely lose your ability to pursue a discrimination case.

This 90 day from the date you receive your “Right To Sue letter” deadline (as is the 3 year deadline for state law court claims) is called the statute of limitations.

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