THE NEW HAMPSHIRE SUPREME Court’s May 6 decision in the Petition of Stacey Perkins (No. 2000-744) deals with a potential trap for practitioners that is buried in the construction clause of NH RSA 354-A, the Law Against Discrimination. In many instances, practitioners are well-advised to file a complaint with the commission before filing in federal or state court. Filing elsewhere first may preclude recourse before the commission in a number of situations.

Pursuant to the construction clause, RSA 354-A does not supersede or repeal other state civil rights and discrimination laws. However, the Commission for Human Rights does have exclusive jurisdiction over pending charges, and a final determination excludes any other action, civil or criminal, based on the same grievance. Further, section 25 states: "If such individual institutes any action based on such grievance without resorting to the procedure provided in this chapter, such person may not subsequently resort to the procedure in this chapter…"

The petitioner, Stacey Perkins, a 10-year-old female, filed an action for injunctive relief and damages in the U.S. District Court for the District of New Hampshire in the spring of 1998, alleging both state and federal claims – including an RSA 354-A claim – arising out of the refusal of the Londonderry Basketball Club to allow Perkins to play on a mixed-gender basketball team in the Londonderry boys’ basketball tournament. (Londonderry sponsored a separate girls’ tournament.) Perkins filed her civil action in federal court after learning that the Attorney General’s Office would decline to seek injunctive relief on behalf of the petitioner if she filed a charge with the commission.

In September 1998, the commission received the petitioner’s charge of public accommodation discrimination because of sex. The commission took no action on the charge while court actions were pending. The petitioner was ultimately unsuccessful in her federal equal protection claims, and the courts’ dismissal was affirmed by the First Circuit in 1999. Subsequently, the investigating commissioner assigned to the charge filed with the commission dismissed the charge pursuant to RSA 354-A:25 because Perkins had "first filed an action in federal court and therefore was precluded from seeking recourse at the commission." Perkins filed a Petition for Writ of Certiorari with the Supreme Court, which affirmed the commission’s order.

Reading the language of RSA 354-A:21 and 25 together, the court in Perkins construed "resorting to the procedure provided in this chapter" to mean specifically the making, signing and filing of a verified complaint in writing. Thus, contacting the commission and discussing whether the commission would seek injunctive relief if a charge were filed was not following the procedure provided for in the statute. While going to the commission is not the exclusive means of seeking relief, the provisions of Section 25 limit the remedy available for victims of alleged discrimination in order to discourage duplicative, and possibly inconsistent, litigation. And, the court ruled, the reasons why a party has not filed first at the commission are not relevant.

When the commission receives information showing that a charging party may have resorted to procedures in another forum first, the commission will examine three questions: (1) Has the complaining party already filed a complaint somewhere else before coming to the commission? (2) Was the other filing a "civil action?" and (3) Was it "based upon the same grievance?" If the answer to all these questions is "yes," then the charge will be dismissed.

Claims filed with the EEOC, HUD or state anti-discrimination agencies in other states are not "civil actions" and do not preclude filing with the commission. The commission will communicate with those agencies pursuant to any work-share agreement that may exist, and may decline to investigate if the commission will not have exclusive jurisdiction. See also Petition of Kenneth R. Dunlap, Jr., 134 N.H. 533 (1991), in which plaintiff’s use of optional statutory procedures available to teachers for review of non-renewal of contracts did not foreclose recourse to the Commission for Human Rights because the non- renewal hearings do not rise to the level of civil legal actions within the meaning of the provision of the discrimination statute designed to prevent duplicative litigation.

On the other hand, superior court actions brought pursuant to the liquidated damages section of the state’s equal pay act provisions (NH RSA 275:39) may trigger the application of 354-A:25, if the action is based upon the same grievance as a sex discrimination charge later filed with the commission. Also, an amendment to the workers’ compensation statute effective Aug. 10, 2001 dealing with compensation for injuries caused by wrongful termination may bar a person from filing an action at the commission, if a claim under RSA 281-A has already been filed. (RSA 281-A:8,III) Similarly, if a person files a charge at the commission for constructive discharge as a result of discrimination that resulted in injuries, this may bar compensation to the employee under 281-A. This is particularly likely to arise in cases involving sexual harassment that resulted in physical injuries. In order to avoid problems, practitioners should carefully analyze any case in which both statutes may potentially be involved.

The construction clause also can have an effect after a discrimination complaint is filed in state court. A private right of action in superior court is now available under an amendment to RSA 354-A that went into effect in June 2000 (see RSA 354-A:21-a). A complainant may want to forego a commission investigation and file in superior court when the facts of his or her case give rise to other causes of action besides the 354-A discrimination claim. However, a charge must still be filed with the commission first, before it can be removed to court. Filing other actions first with superior court and then filing with the commission (intending to remove) will almost certainly prompt a motion to dismiss from defendant’s counsel if any of the pending court actions is based upon the "same grievance" as the discrimination charge. This might arise, for example, when a party believes he or she should file a civil action alleging wrongful termination, breach of employment contract, and sex discrimination based upon sexual harassment in violation of RSA 354-A:7, V. If superior court action is contemplated in any discrimination action pursuant to RSA 354-A, the discrimination charge must be filed at the commission before any actions are filed in court. Then the charge can be removed to superior court after 180 days, or sooner, upon request.

Anyone with questions about procedures before the commission is welcome to contact the NH Commission for Human Rights at 271-6838.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer