Filing a Workplace Harassment Complaint in New Hampshire

That is the interaction to watch. The 3 year limit in RSA 354-A:21-a, I runs from the date the alleged unlawful practice occurred, not from any agency event, and RSA 354-A:21, IV gives the commission up to 24 months after the filing date to close the case or commence adjudicative proceedings. The statute does not provide for tolling that 3 years while your complaint is pending. Calculate the 3 year date on the day you file and raise it with a New Hampshire employment lawyer well before it arrives.

Yes, once probable cause is found. RSA 354-A:21-a, I provides that any party alleged to have committed a practice made unlawful under the chapter may, in any case in which a determination of probable cause has been made by the investigating commissioner, remove the complaint to superior court for trial. That is unusual, and it means choosing the administrative forum is not a guarantee of staying in it. The trade off is that in superior court either party is entitled to a jury trial on any issue of fact in an action for damages, and the court may award enhanced compensatory damages where it finds the conduct was taken with willful or reckless disregard of the charging party's rights.

In two situations under RSA 354-A:21-a, I. First, a superior court trial is not available to any party once a hearing before the commission has begun or has concluded pursuant to RSA 354-A:21, II(b), so the choice of forum is reversible only up to that point. Second, it is not available to a complainant whose charge has been dismissed as lacking in probable cause and who has not prevailed on an appeal to superior court. That appeal is deferential: the moving party must establish that the commission decision is unlawful or unreasonable by a clear preponderance of the evidence, and the commissioner's findings of fact stand as long as the record contains credible evidence to support them.

Down to six, and no further. RSA 354-A:2, VII is drafted as an exclusion: employer does not include any employer with fewer than 6 persons in its employ, an exclusively social club, or a fraternal or religious association or corporation not organized for private profit. There is no calendar week averaging test attached. This means a worker at a three, four or five person New Hampshire employer has neither a federal Title VII claim, which needs 15, nor a Law Against Discrimination claim. The state and all its political subdivisions, boards, departments and commissions are inside the definition.

It does, at RSA 354-A:7, V, which states that harassment on the basis of sex constitutes unlawful sex discrimination. It covers unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature, including where the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The phrase non-verbal is unusual and reaches gestures and displayed images. Note the limit: the chapter defines harassment on the basis of sex only, so a race or disability harassment claim is built on the general prohibition in RSA 354-A:7, I rather than on a statutory definition.

RSA 354-A:7, I makes it unlawful for an employer, because of age, sex, gender identity, race, color, marital status, physical or mental disability, religious creed, or national origin, to refuse to hire or employ, to bar or discharge from employment, or to discriminate in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. Sexual orientation is protected by a separate sentence in the same paragraph rather than by inclusion in the list. Sex is defined at RSA 354-A:7, VI(a) to include pregnancy and medical conditions which result from pregnancy.