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Bar News - April 15, 2011


Labor & Employment Law: Overview of the Administrative Handling of Employment Claims in New Hampshire

By:


David W. McGrath
 

James P. Reidy
Over the past decade workplace discrimination and retaliation claims have risen significantly. In FY2010 the charge numbers filed with the Equal Employment Opportunity Commission (EEOC) jumped to a record high of 99,922. FY2010 also saw an increase in the number of charges filed with the NH Commission for Human Rights (NHCHR). Retaliation, disability and gender-related claims (including sexual harassment) were the most commonly filed. With this increase in workplace claims, it is even more important that practitioners understand how the system works.

NH Commission for Human Rights

NH RSA 354-A prohibits employment discrimination by covered employers (exempting employers with fewer than six employees and certain non-profit clubs, associations and organizations) based on an employee’s or applicant’s age, sex, race, color, marital status, physical or mental disability, religious creed, national origin, or sexual orientation.

The NHCHR was established by RSA 354-A "for the purpose of eliminating discrimination in employment, public accommodations and the sale or rental of housing or commercial property, because of age, sex, sexual orientation, race, creed, color, marital status, familial status, physical or mental disability or national origin." The NHCHR has the power to receive, investigate and pass upon complaints of illegal discrimination and to engage in research and education designed to promote good will and prevent discrimination.

Complaints or "charges" of employment discrimination must be filed with the NHCHR within 180 days of the alleged discrimination or within 180 days after "ongoing" discrimination has ceased. The NHCHR or state attorney general may also file discrimination complaints. RSA 354-A:21.

Mediation, Investigation, Conciliation and Public Hearing

The parties are usually offered commission-sponsored mediation to resolve claims early on in the process, at times even before an employer files a response to the charge. Many cases are resolved at this stage.

If the case proceeds at the NHCHR, however, an assigned investigator will determine if there is or is not probable cause to support the allegations of unlawful activity. If the NHCHR finds no probable cause to credit the allegations in the charge, the matter will be dismissed, subject to a right of appeal to the superior court. To prevail on appeal, the moving party must establish that the NHCHR’s decision is unlawful or unreasonable by a clear preponderance of the evidence. If the superior court reverses the no probable cause finding, the case will be remanded to the NHCHR, unless either party elects to proceed in the superior court under 354-A:21-a. If probable cause is determined, the investigating commissioner will try to resolve the dispute through "conference, conciliation and persuasion." If those efforts are unsuccessful, or if circumstances warrant, the investigating commissioner shall issue written notice requiring the employer named in the complaint to answer at a public hearing before three commissioners, with the time and place of hearing by the NHCHR. RSA 354-A:21.

As is discussed below, prior to beginning the public hearing process, the respondent may remove the case to superior court and request a jury trial on the facts. RSA 354-A:21-a. If the case proceeds at the NHCHR, however, the respondent must file a written verified answer to the complaint and attend the public hearing, with or without counsel, to testify. The claimant is not required to testify. The investigating commissioner may appear as a witness, but may not participate in the NHCHR’s deliberations in the case. The NHCHR’s conciliation efforts, if any, are not admissible at the hearing.

If, after considering the evidence presented at the hearing, the NHCHR determines that the respondent has engaged in unlawful discrimination, the NHCHR will state its findings of fact and issue an order requiring the respondent to cease and desist the discriminatory action and take affirmative action, such as hiring, reinstating employees, or paying back wages. The NHCHR may also order payment of compensatory and other damages or fines. RSA 354-A:21(d).

Equal Employment Opportunity Commission

In addition to protections offered by RSA 354-A, claimants alleging employment discrimination may also file claims under federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA"), and the Age Discrimination in Employment Act of 1967 ("ADEA"). Like the NHCHR, the EEOC enforces federal law prohibiting discriminatory employment practices. The EEOC refers to state agencies, such as the NHCHR, which enforce state anti-discrimination laws as "Fair Employment Practices Agencies ("FEPAs")." Through the use of "work sharing agreements," the EEOC and the FEPAs avoid duplication of effort while ensuring that a claimant’s rights are protected under both federal and state law. New Hampshire claimants may file a charge with either the NHCHR or the EEOC. If a charge is filed with the NHCHR and is also covered by federal law, the NHCHR "dual files" the charge with the EEOC to protect federal rights. The charge usually will be retained by the NHCHR for handling.

If a charge is filed with the EEOC (similar to NHCHR filing requirements), all laws enforced by the EEOC (except the Equal Pay Act), require filing a charge with the EEOC before a private lawsuit may be filed in court. A charge must be filed with the EEOC within 180 days from the date of the alleged violation, but this deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. U.S. Equal Employment Opportunity Commission, How to File a Charge of Employment Discrimination, available at www.eeoc.gov/employees/howtofile.cfm; see also, U.S. Equal Employment Opportunity Commission, Fair Employment Practices Agencies (FEPAs) and Dual Filing, available at www.eeoc.gov/employees/fepa.cfm.

Removal to Court/ Procedural Issues

After filing with the NHCHR, the claimant may instead sue in superior court for damages to the same extent as those sought before the NHCHR. However, the claimant may only file after the complaint has been pending with the NHCHR for 180 days, or earlier with the NHCHR’s written permission. The claimant must file written notice with the NHCHR of the charge filed in superior court. Either party may request a jury trial on the facts in an action for damages in superior court.

Litigating "dual-filed" discrimination claims raises a myriad of interesting procedural and jurisdictional issues. As discussed above, claimants may "dual file" a charge with either the NHCHR or EEOC. Pursuant to RSA 354-A:21-a, either party may remove the claim to superior court before the NHCHR hearing has begun. However, a superior court trial on a claim under RSA 354-A is not available to a claimant whose charge has been dismissed as lacking probable cause and has not prevailed on appeal to the superior court pursuant to RSA 354-A:21, II(a). Moreover, "[a] litigant may not use supplemental jurisdiction to have a federal court instead of a state court perform judicial review of a state administrative agency decision that a state statute assigns to state court." Munroe v. Compaq Computer Corp., 229 F.Supp.2d 52, 59 (D.N.H. 2002).

If a claimant has "dual-filed," after removing the claim from the NHCHR to state court, it would appear that an employer defendant could then remove the case to federal court because a federal question has been asserted. Interestingly, in the case of a dual filed claim for which the NHCHR has issued a probable cause finding, an employer defendant desiring to have the matter heard in federal court would apparently need first to remove the case to superior court pursuant to RSA 354-A:21-a and then to federal court pursuant to that court’s federal question and removal jurisdiction under 28 U.S.C. §1331 and 28 U.S.C. § 1441. All of this is made somewhat complicated by the fact that generally a federal claim is not ripe until the EEOC issues a right to sue letter, notwithstanding the fact that the underlying administrative complaint includes the "dual filed" federal claim.

Dave McGrath is a shareholder at Sheehan Phinney Bass + Green in Manchester, NH where he is the Chair of the Firm’s Litigation Department and a member of the Firm’s Labor and Employment Practice Group.

Jim Reidy is a shareholder at Sheehan Phinney Bass + Green in Manchester, NH and he is the Chair of the Firm’s Labor and Employment Practice Group.

The authors would like to thank Nicole Negowetti for her assistance with the article.


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