Bar News - December 17, 2010
Unmentored: Advice for Today’s New Lawyer The Right Way to Fight for Human Rights
By: Kirk C. Simoneau
First, let me begin by apologizing for the absence of this column last month. Although I didn’t get countless cards and letters, I know a few of you missed me.
|Kirk C. Simoneau
I’m happy to say that our most recent New Lawyers’ Luncheon speaker was Joni Esperian, the executive director of the NH Commission for Human Rights. Esperian was extremely thorough and well-prepared for her presentation to what turned out to be a rather large group. This column, as always, condenses what struck me as most important, and, as usual, it’s the little things.
As you probably know, when one begins a discrimination action in New Hampshire, even if it is going to go before the EEOC, the initial complaint is sent to the NH Commission for Human Rights on a Form 5. Form 5 seems simple, but often we overlook items, believing that the form isn’t very important. Well, it is. Here then, are some Form 5 tips:
1. At the very top of Form 5, you must check off the appropriate jurisdictional boxes, FEPA and EEOC. This step is often forgotten.
2. Form 5 must include the number of employees working for the allegedly discriminating employer. This may be an approximate amount and, again, is often overlooked. Don’t, however, leave it blank, even if you’re unsure.
3. Make sure in the "Discrimination Based On" box, in addition to all the appropriate and applicable options such as race, retaliation, color, age, sex, and religion, you check "Other" and type in "RSA 354-A." That is New Hampshire’s statute against discrimination. On my template from, I have those details permanently added.
4. Next, there is box for the "Earliest Date Discrimination Took Place" and "Latest Date Discrimination Took Place." These dates are extremely important. Even if your case involves a continuing act of discrimination, you need to include a "latest date" and check off the box that indicates "Continuing Action." If your client, like many clients, has difficulty remembering precisely what day he or she was first or last harassed or discriminated against, give their best guess. In other words, it’s okay to approximate.
5. If the body of the complaint runs onto a second page, the second page does not need to be notarized. You can notarize just the first page. I know it sounds obvious, but it’s a common question.
6. After the complaint is completed, the form must be notarized. Again, obvious, but often overlooked.
7. Also, in cases of discrimination based on disability, do not name the specific disability on Form 5. Remember the form is sent to the employer and you may have just revealed private health information in violation of federal law. So simply use the term "disabled." The Commission will discover exactly what the disability is as they move forward with their investigation.
Why is all this silly little stuff important? Failure to properly complete Form 5 can result in getting it kicked back to you. This causes costly and embarrassing delays, and can put you in jeopardy of missing the very short statute of limitation in these cases, ordinarily 180 days for state claims and 300 days for federal claims.
After you’ve successfully filled out Form 5, and the case is assigned to an investigator, it is extremely important that you work with the investigator. Investigators have heavy caseloads and strive to complete investigations within 16 months (a timetable you should alert your clients to). So, do some discovery. Call or write to the investigator and explain your theory more fully.
Another practice pointer offered by Esperian involves a common trial practice that is vastly underutilized in cases at the NHCHR: send interrogatories. Copy the Commission on them. Help the investigator investigate.
If you’re a plaintiff’s lawyer you can seek damages including front pay, back pay, unlimited compensatory damages, attorneys’ fees, diminished earnings, and even a fine that goes into the state’s general fund. Also, if it is a New Hampshire case, that is, that you are not filing with the EEOC, RSA 354-A:11 has clear language creating personal liability for aiding or abetting discrimination. If you file a complaint with the NH Commission for Human Rights, and your client then suffers retaliation, say by being fired, amend your initial complaint to include retaliation, or file a subsequent complaint. If you’re a defense lawyer, well, good luck to you.
Speaking of retaliation, remember, in this context, a refusal to give into sexual advances that results in an adverse employment action is not retaliation; it is harassment.
In closing, Esperian suggested that attorneys work more diligently to present a full case to the investigators. This makes the investigator’s work easier, but it also creates the possibility of better, quicker resolutions. She also urged all of us to pay attention to the details – something we often forget to do when we get bogged down and busy.
Kirk C. Simoneau, admitted to the NH Bar in 2009, recently was named a partner at the Nixon, Vogelman, Barry & Slawsky law firm in Manchester.