Filing a Workplace Harassment Complaint in North Dakota

North Dakota reaches far smaller employers than federal law does. Section 14-02.4-02(8) defines employer as a person within the state who employs one or more employees for more than one quarter of the year, and a person wherever situated who employs one or more employees whose services are to be partially or wholly performed in the state. Federal Title VII needs fifteen employees. Note that the more than one quarter of the year qualifier attaches only to the in-state limb, so an out-of-state employer with a single worker performing services in North Dakota is covered with no duration requirement.

A ninety day clock starts, which is the opposite of what most people expect from a favorable finding. Section 14-02.4-19(3) provides that where a complaint is first filed with the department, the period of limitation for bringing an action in district court is ninety days from the date the department dismisses the complaint or issues a written probable cause determination. A dismissal and a probable cause determination start the same fuse. Waiting through conciliation after a favorable finding, without watching that date, can leave you out of court while the agency file is still open.

It can delay you, and that is the rule most likely to catch a North Dakota worker out. Section 14-02.4-19(5) says a person whose collective bargaining agreement, employment contract, or public employee rights provides a process through which recourse for discriminatory acts is available must exercise that process to completion before commencing an action, and if that process provides judicial review by statutory appeal or through special proceedings, that must be followed to completion too. The same subsection sets the limitation period at ninety days from the date the process is completed, or ninety days from a department dismissal or probable cause determination, whichever is greater. It also preserves the department's ability to receive and investigate complaints and to conciliate while that process runs.

Section 14-02.4-03(1) makes it a discriminatory practice for an employer to accord adverse or unequal treatment because of race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. That off duty lawful activity class has no federal analogue. Sex is defined at Section 14-02.4-02(18) to include pregnancy, childbirth, and disabilities related to pregnancy or childbirth, and age is floored at forty by Section 14-02.4-02(1). Sexual orientation and gender identity are not listed anywhere in the chapter.

N.D. Admin. Code 46-04-01-03(3) requires every complaint or charge of discrimination to be in writing, signed, and verified upon a form designated by the department, so it must be sworn and on the department's own form. Section 46-04-01-04(1) then provides that a complaint, a charge of discrimination, an answer, or an election is deemed filed on the date it is received by the department, whether by mail, personal delivery, or facsimile, and 46-04-01-04(2) requires each document to be date stamped on receipt. Filing runs on receipt, not on the postmark. The intake questionnaire described at 46-04-01-02(1) is an earlier and separate step that does not itself file anything.

Not from the department. Section 14-02.4-20 allows the department or the court to enjoin the respondent and to order temporary or permanent injunctions, equitable relief, and backpay limited to no more than two years, and then provides that neither the department nor an administrative hearing officer may order compensatory or punitive damages under the chapter. That makes the forum choice substantive rather than procedural. The court route carries its own risk in the same section, because a court that finds the allegation of a discriminatory practice false and not made in good faith shall order the complainant to pay the respondent's court costs and reasonable attorney's fees.