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Bar News - April 19, 2013

Labor & Employment Law: Local EEOC District Plan to Focus on Equal Pay, Retaliation


The Equal Employment Opportunity Commission district office in New York is working with the NH Commission for Human Rights to identify priority areas of enforcement as part of a national EEOC plan to maximize agency impact, despite decreased funding and hiring freezes.

Each EEOC district office has been charged with developing its own plan that identifies priorities from the 2012 national EEOC strategic enforcement plan that are of particular importance in the district. The New York District Office, which has jurisdiction over New Hampshire, is not expected to release its plan until later this year, but District Director Kevin Berry said enforcement of the Equal Pay Act has been, and will remain, a priority with respect to this state.

"Equal pay is an issue, and will be a top priority," Berry said.

Joni Esperian, executive director of the NH Commission for Human Rights, referred in an email to recent statistics that showed New Hampshire lagging behind other markets with respect to pay differentials between women and men. Esperian also pointed to a 2009 survey by the NH Bar Association Gender Equality Committee, which was highlighted in the NH Bar Journal summer 2010 issue.

The study showed increasing pay and promotion opportunity disparities over time between male and female attorneys in this state. In light of the evidence that disparate pay between the sexes remains a problem in this state, New Hampshire may experience an increase in directed investigations and Commissioner Charges related to the federal Equal Pay Act, which are enforcement mechanisms encouraged in the national EEOC strategic enforcement plan.

Berry said investigating and prosecuting retaliation charges will also be a priority for the district.

"Retaliation is the number-one challenge we see," he said. "A lot of employers don’t understand what retaliation means."

Retaliation falls under the EEOC national strategic plan’s mandate to preserve access to the legal system by targeting "policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes." Berry explained that his office often sees cases in which direct supervisors are not fully educated on what retaliation can entail.

"The director of human resources might have an understanding of the law, but farther down the management chain, the message doesn’t get out," he said.

In New Hampshire, more than one-third of all charges filed with the NHCHR in fiscal year 2012 included a claim of retaliation, according to NHCHR statistics.

Although the national plan provides a focal point for enforcement and outreach moving forward, Berry said the plan simultaneously reflects a continuation of the agency’s mission and activity. As a practical matter, the plan may make little or no difference, with respect to the bar’s interaction with the agency on individual cases. "These are areas of importance, but we’ve been enforcing the laws for 40 years," Berry said.

The district plan is expected to address a total of three to four priorities from the national plan, according to Esperian. Additional potential priorities could include: 1) eliminating barriers in recruitment and hiring; 2) protecting immigrant, migrant and other vulnerable workers; 3) addressing emerging and developing issues, such as demographic changes; and 4) preventing harassment through systemic enforcement and targeted outreach. The national EEOC strategic enforcement plan is available online.

Tips from the EEOC

For attorneys involved in agency actions, Kevin Berry, director of the New York District of the EEOC, which covers New Hampshire and other New England states, provided the following recommendations:

On the employee side:
  • When filing a charge of discrimination, use clear and concise language. "The shotgun approach is not a good approach," Berry said. At the outset of the case, provide the EEOC with all of the known supporting documentation and witness statements. The more relevant, supporting information, the better.
On the employer side:
  • Cooperate with the investigation. At a minimum, communicate with the EEOC regarding what records the employer maintains and how those records are maintained. "We know that, for the employer, time is money," said Berry. "And we try to be as efficient as possible."

  • Honestly assess the merits of the charge and use the agency’s mediation procedure when appropriate. "Take an objective look at the case, and ask yourself, ‘Did we screw up?’" Berry said. In those cases when the answer is yes, consider mediation as a possible means to fix the mistake before moving on to litigation, he said.

Katherine DeForest is an attorney at Sulloway & Hollis, PLLC, in Concord. She is a member of the NHBA Labor and Employment section and can be reached at

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