Unlawful employment discrimination occurs when an individual is denied employment or is harassed in an employment setting based on sex, race, religion, color, marital status, physical or mental disability, pregnancy, age, national origin, or sexual orientation. For example, not being hired because the employer prefers a younger looking person to do the job or firing or forcing a worker to retire because he or she is "over the hill" may be examples of age discrimination. Women can be discriminated against if they receive less pay because of their sex, or if they are not hired, or are fired, because they are pregnant.
A number of state and federal laws prohibit employment discrimination. At the federal level, employment protection laws are overseen by the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC). At the state level, discrimination claims are handled by the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS.
Title VII of the CIVIL RIGHTS ACT OF 1964 prohibits employment discrimination based on sex, race, color, religion, or national origin.
New Hampshire state law RSA 354-A:1 includes these categories as well as sexual orientation, marital status, age (all ages), and disability.
The AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 (ADEA) protects individuals who are forty (40) years of age or older.
Title I and Title V of the AMERICANS WITH DISABILITIES ACT OF 1990 (ADA) prohibit employment discrimination against qualified individuals with disabilities in the private sector and in state and local government.
Sections 501 and 505 of the REHABILITATION ACT OF 1973 prohibit discrimination against qualified individuals with disabilities who work in the federal government.
THE CIVIL RIGHTS ACT OF 1991, among other things, provides monetary damages in cases of intentional employment discrimination.
Under these laws, it is illegal to discriminate in any aspect of employment, including:
Hiring and firing;
Compensation, assignment, or classification of employees;
Transfer, promotion, layoff, or recall;
Job advertisements;
Recruitment;
Testing;
Use of company facilities;
Training and apprenticeship programs;
Fringe benefits;
Pay, retirement plans, and disability leave;
Other terms and conditions of employment, including Worker's Compensation;
Harassment on the basis of race, color, religion, sex, national origin, disability, age, marital status, or sexual orientation;
Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, ethnic group, marital status, sexual orientation, or disability;
Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination based on an individual's participation in schools or places of worship associated with a racial, ethnic, or religious group; and
Employment decisions based on pregnancy.
NATIONAL ORIGIN DISCRIMINATION
It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. For example, a rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences of violating the rule.
The IMMIGRATION REFORM AND CONTROL ACT (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA. In order to be non-discriminatory, verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.
Additional information about IRCA may be obtained from the OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES at 800-255-7688 (voice), 800-237-2515 (TTY for employees/applicants), or 800-362-2735 (TTY for employers) or at www.usdoj.gov/crt/osc.
DISABILITY DISCRIMINATION
An individual with a disability under the AMERICANS WITH DISABILITY ACT (ADA) is a person with a physical or mental impairment that substantially limits one or more major life activities that an average person can perform with little or no difficulty. Such activities include walking, breathing, seeing, hearing, speaking, learning, and working. The ADA protects employment rights for these individuals.
If an individual with a disability satisfies all skill, experience, education, and other job-related requirements of employment, it is illegal for that person to be dismissed or not hired solely on the basis of a disability.
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability, nor may a job offer be contingent upon the results of a medical examination that is not job-related, consistent with business necessity, or required of all entering employees in the same job category.
Employers are required by the ADA to make reasonable accommodations upon request so that a person with a disability may apply for a job, perform job functions, or enjoy the benefits and privileges of employment that are enjoyed by people without a disability.
An employer is not required to make such accommodations if they impose an undue hardship on the operation of the employer's business in terms of cost, difficulty, and production.
AGE DISCRIMINATION
The AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) and New Hampshire law RSA 354-A bans discrimination in employment based on age. Some specific examples follow.
Job notices or advertisements include statements or specifications of age preference and limitations. An age limit may be specified only in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ).
An apprenticeship program, including a joint labor-management apprenticeship program, discriminates on the basis of age.
Older employees are denied benefits. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
In addition, under New Hampshire law (RSA 354-A), employment discrimination against persons of any age, including minors, is unlawful, subject to specific health and safety regulations to protect minors.
SEX DISCRIMINATION
TITLE VII OF THE CIVIL RIGHTS ACT and New Hampshire law RSA 354-A forbid sex discrimination in employment. Some specific examples of the broad provisions of the law follow.
PREGNANCY BASED DISCRIMINATION provisions stipulate that pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
SEXUAL HARASSMENT provisions prohibit practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same-sex harassment. NOTE: THE "HOSTILE ENVIRONMENT" STANDARD ALSO APPLIES TO HARASSMENT ON THE BASES OF RACE, COLOR, NATIONAL ORIGIN, RELIGION, AGE AND DISABILITY.
The law prohibits any adverse employment decisions based on sex.
PREGNANCY DISCRIMINATION
Below are some commonly asked questions about the rights of pregnant employees. For more information on pregnancy discrimination in employment, contact the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS at 603-271-2767.
Is a pregnant woman entitled to maternity leave?
Yes. Employers subject to these laws must grant a female employee leave for the period of time she is physically disabled due to pregnancy, childbirth or related medical conditions.
Are all employees covered by this legislation?
Employees working for companies with six (6) or more employees (full or part-time) usually are covered. Call the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS to determine if these laws cover your employer.
Is there a set period of time for maternity leave?
No. There is no set period of time for maternity leave. It is based on the period of disability as determined by a physician, usually the employee's personal doctor.
Is the employee entitled to full pay while on maternity leave?
The general rule is that pregnancy must be treated in the same manner that the employer treats other temporary physical disabilities. Therefore, if the employer continues to pay other temporarily disabled employees while on leave, he or she must pay pregnant women. If the employer requires use of vacation or sick leave for temporary disabilities, then he or she may require the same for pregnancy.
Is the employee entitled to her job back after she recovers from childbirth?
When the employee is physically able to return to work, the employer must make her original job or a comparable position available to her, unless business necessity makes this impossible or unreasonable.
If another employee fills the position while the original employee is on maternity leave and the employer prefers the temporary replacement, can the employer refuse to provide the original job for the returning employee?
No. Any change in position for the returning employee must be made for reasons of business necessity. An employer's preference for one employee over the other cannot be a factor in this decision.
Can an employee be laid off or fired while pregnant or on maternity leave?
No. An employee cannot be laid off or fired while pregnant or on leave for reasons related to her temporary disability. However, an employee, while pregnant or on maternity leave, is not immune from a general and legitimate lay off of employees.
At what time in the pregnancy must the employee stop working?
An employee can work until she physically is unable to perform her job.
If an employee experiences morning sickness or another related physical condition due to her pregnancy, is she permitted to take leave during this time and then return to work for the remaining period of pregnancy?
Yes. An employee may need temporary leave in the early stages of the pregnancy and then return to work until the end of the pregnancy.
Must an employer provide health insurance coverage for pregnancy, childbirth and related medical conditions?
If an employer provides health insurance coverage for temporary disabilities, coverage also must include pregnancy, childbirth and related medical conditions. If the particular policy purchased by the employer excludes pregnancy, the employer will be considered to be self-insured regarding pregnancy and thus be responsible for all pregnancy-related costs equal to costs covered by the policy for other temporary physical disabilities.
Must an employer provide health insurance coverage for dependents of employees for pregnancy related conditions?
An employer must provide the same level of coverage for pregnancy related conditions of dependents that is provided for other medical conditions. This level of coverage does not have to be as high as employee coverage.
If an employer provides fringe benefits for employees on disability leave, such as shorter returning hours, continued salary or others, must they be provided to the pregnant employee?
Yes. An employer must provide the same benefits to those on leave for pregnancy related conditions as for other reasons related to short-term disability.
Is the employer required to grant leave for the purposes of childcare and bonding?
No. The required leave is for the period of disability. If an employer permits childcare leave, it must be granted equally to both men and women employees.
Can an employee collect worker's compensation or unemployment compensation when out of work due to pregnancy?
No. Pregnancy is not covered by worker's compensation or unemployment compensation benefits in the state of New Hampshire.
SEXUAL HARASSMENT
Like pregnancy discrimination, sexual harassment can be a discriminatory employment practice and is prohibited by both federal and state law. Sexual harassment can take many forms, including requests for sexual favors, unwelcome sexual advances, or other conduct of a physical, verbal or visual nature that is unwelcome and offensive. It can be a supervisor who requires sexual activity in order to keep a job or to receive a promotion. It can come from co-workers who create a hostile working environment by making suggestive or demeaning comments; displaying sexual objects or pictures; telling dirty jokes; or touching, patting, or pinching you. The gender or sexual orientation of the person harassing and the person being harassed is not the determining factor.
For more information about sexual harassment, contact the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS at (603) 271-2767. Below are some commonly asked questions about sexual harassment in the workplace.
How do you know if you are being sexually harassed?
Sexual harassment exists particularly when one or more of the following conditions are met:
You are forced to deal with the harassment in order to get a job;
Your giving in to or rejecting the harassment is used to make decisions pertaining to your employment;
The harassment interferes with your employment; or
The conduct creates an "intimidating, hostile or offensive" work environment.
What is sexual harassment at work?
Sexual harassment can include, but is not limited to:
Whistling or lewd gestures;
Deliberate bumping or leaning against a person;
Comments about your body;
Sexual notes, phone messages, email messages, graffiti, or gossip about another person;
Inappropriate touching or grabbing of clothing;
Demands for dates or sexual acts, or threats for not complying with the demands;
Gay bashing;
Harassment through the Internet or phone system;
Sending or leaving another person pornographic material; or
Exposure of him or herself.
What should you do if you believe you are being sexually harassed?
There are several steps you can take if you believe you are being sexually harassed.
You have the option to let the harasser know that the conduct is offensive and to demand that it stop. You can do this in writing if you are uncomfortable doing it in person.
If this does not help, or is not a step you feel comfortable taking, REVIEW THE COMPANY POLICY ON SEXUAL HARASSMENT AND FOLLOW ITS GRIEVANCE PROCEDURE AS OUTLINED. THE COMPANY'S POLICY SHOULD TELL YOU WHO IN THE COMPANY TO NOTIFY IN THE EVENT YOU EXPERIENCE SEXUAL HARASSMENT.
Remember that sexual harassment is a form of illegal employment discrimination under state and federal law. If the suggestions above are not effective, you can file a formal employment discrimination complaint.
FILING A COMPLAINT OF EMPLOYMENT DISCRIMINATION
If you feel that you have been discriminated against or sexually harassed under state or federal law, you can file a complaint. You should note that retaliation against an employee who complains in good faith is illegal. Therefore, you should document any adverse actions taken as a result of your complaint.
Write down what happened. Keep a personal journal of all that happens. After each incident, write down the date, day, time, who did it, what he or she did and where it happened. Write down how you felt, such as, "I was depressed," or "I was not able to concentrate on my work." Were you discriminated against based on your sex, pregnancy, race, religion, or something else?
Talk to the person in charge. Some companies and organizations have specific policies that deal with discrimination and unlawful harassment. Review the company's policy and follow its grievance procedures. Keep a log of all conversations with supervisors. If you are employed by a small business in which your boss is the person discriminating against you, and in which there is no one else to whom to report the situation, contact the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS at 603-271-2767 or the EEOC at 800- 669-4000 or 617-565-3200.
Continue to do a good job at work. It is important that the person harassing or discriminating against you does not have any other reasons to explain his or her actions. Keep a journal of the work you perform. Keep copies of performance evaluations to show that you do a good job at work. The harasser may question your job performance in order to defend his or her own behavior.
Ask any witnesses to give you a statement, in writing or on tape, of what they saw and heard. Make sure they are as detailed as possible.
Save any notes, messages, gifts, posters, and answering machine tapes that you have received from the person harassing you. Even if the items are disgusting or upsetting, it is important that you keep them for evidence.
Get emotional support from family, friends, a crisis center advocate, a therapist, or clergy. This often can be the most important, and sometimes most difficult, action you take. Some people feel depressed or get physically ill as a result of discrimination. New Hampshire law (RSA 173-C) makes getting help safer for you. The law states that information shared with a crisis center advocate shall remain confidential unless the crisis center has received written permission from you. This means you can disclose information about your situation to a crisis center advocate and receive help and support without any of the conversation being revealed to the government, your harasser, or any other third party. Please note that crisis center advocates are required by law to report any known or suspected incidences of child abuse to authorities.
WHO DO EQUAL EMPLOYMENT OPPORTUNTY LAWS COVER?
TITLE VII and the ADA cover all private employers, state and local governments, and educational institutions that employ fifteen (15) or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
ADEA covers all private employers with twenty (20) or more employees, state and local governments (including school districts), employment agencies and labor organizations.
Title VII and the ADEA also cover the federal government. In addition, the federal government is covered by the REHABILITATION ACT OF 1973, as amended, which incorporates the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEOC office of the federal agency where the discrimination occurred.
RSA 354-A, New Hampshire's anti-discrimination law, covers employees working for employers with six (6) or more employees (full or part-time). Some non-profit employers are exempt from these laws. Call the NEW HAMPSHIRE COMMISSION ON HUMAN RIGHTS to determine if your employer is covered.
WHO CAN FILE A CHARGE OF DISCRIMINATION?
Any individual who believes that his or her employment rights have been violated may file a charge of discrimination. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.
HOW DO I FILE A DISCRIMINATION CLAIM?
Claims made under the state law may be filed with the NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS at 603-271-2767.
Claims made under the federal law may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory or call 800-669-4000 (voice) or 800-669-6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
Individuals who need an accommodation in order to file a charge (for example, sign language, interpreter, print materials in an accessible format) should inform the EEOC field office or the COMMISSION FOR HUMAN RIGHTS so appropriate arrangements can be made.
Federal employees or applicants for employment should see the fact sheet about FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT PROCESSING, found at www.eeoc.gov.
To file a complaint against a state or local government employer with a practice or pattern of illegal discrimination, contact the Employment Litigation Section in the OFFICE OF CIVIL RIGHTS with the U.S. DEPARTMENT OF JUSTICE at 202-514-3831.
In addition,
Individuals with a disability also should contact the DISABILITY RIGHTS CENTER at 800-834-1721 or 603-228-0432, which represents individuals with disabilities in legal and administrative matters that arise because of their disabilities.
If your employer requires specific documents, such as a green card, or rejects such documents only from applicants of certain national origins, you also can contact the OFFICE OF SPECIAL COUNSEL at the U.S. DEPARTMENT OF JUSTICE at 800-255-7688.
WHAT INFORMATION IS NEEDED TO FILE A CHARGE?
The complaining party's name, address, and telephone number;
The name, address, and telephone number of your employer and number of employees, if known;
A short description of the incident(s); and
The date(s) of the incident(s).
WHAT ARE THE TIME LIMITS FOR FILING A CHARGE?
Be aware that the statute of limitations is short. Under New Hampshire law, you have only one hundred and eighty (180) calendar days from the last incident to file a formal complaint. If your employer has more than fifteen (15) employees, federal law also covers it. In that case, you have up to three hundred (300) days to file.
All laws enforced by EEOC require filing a charge with EEOC before a private lawsuit may be filed in court.
WHAT REMEDIES ARE AVAILABLE WHEN DISCRIMINATION IS FOUND?
Remedies are available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect. Some specific examples follow.
Back pay
Hiring
Promotion
Reinstatement
Front pay
Reasonable accommodation
Other actions that will make an individual "whole" (in the condition she or he would have been but for the discrimination)
Attorney fees
Expert witness fees
Court costs
Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against federal, state or local governments.
In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodations.
TAKING CARE OF YOURSELF
If you feel you are being sexually harassed or discriminated against, do not blame yourself. It is not your fault. Many people hope that ignoring the problem will make it disappear. Rarely does that happen. Discrimination and harassment can be emotionally damaging. It is important to take care of yourself.
Know that you have done nothing to provoke or cause the harassment. What is happening to you is not your fault and is not because of anything that you have or have not done.
Join a support group. Local crisis centers can assist you in locating a support group in your area.
Get emotional support from family and friends. Keep in touch with friends who are supportive and understanding. Tell someone about each encounter with the harasser. You also can call your local crisis centers for support twenty-four (24) hours a day, three hundred sixty five (365) days a year.
You may experience stress and trauma and may want to seek professional assistance. You may begin to experience things like rage, terror, suspicion, an inability to trust anyone, depression, changes in sleeping and eating patterns, exhaustion, or frequent crying spells. You are not going crazy. Your body and mind are reacting to the stress caused by the harassment. Talking to someone who is trained to work with victims and survivors may help you deal with the experience.
OTHER IMPORTANT EMPLOYMENT LAWS
THE EQUAL PAY ACT
Both the state and federal EQUAL PAY ACT (EPA) protect men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. The FEDERAL EQUAL PAY ACT and RSA 275:37 prohibit discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
The EPA covers all employers who are covered by the FEDERAL WAGE AND HOUR LAW (THE FAIR LABOR STANDARD ACT). Virtually all employers are subject to the provisions of this Act. The law includes specific provisions.
Employers may not reduce wages of either sex to equalize pay between men and women.
A violation of the EPA may occur where a different wage was or is paid to a person who worked in the same job before or after an employee of the opposite sex.
Unlike other laws enforced by the EEOC, the EQUAL PAY ACT does not require filing a charge with EEOC before a private lawsuit may be filed. State EQUAL PAY ACT claims are filed with the NEW HAMPSHIRE DEPARTMENT OF LABOR WAGE AND HOUR DIVISION (603-271-1492) or in Superior Court (see RESOURCE DIRECTORY). Federal EQUAL PAY ACT claims may be filed with the EEOC (800-669-4000 or 617-565-3200) or in federal court (see RESOURCE DIRECTORY). Wage discrimination charges must be filed within one year of the alleged violation.
FAMILY AND MEDICAL LEAVE ACT
The FAMILY AND MEDICAL LEAVE ACT (FMLA) of 1993 is a federal law that allows women and men, who are employed by companies with fifty (50) or more employees, to take up to twelve (12) unpaid weeks a year for the following reasons:
Employee's serious health condition which renders the employee unable to perform an essential function of his or her position;
To care for a child, spouse or parent with a serious medical condition; or
Following childbirth, adoption or placement of a foster child.
Employees must have worked for the employer for at least a total of 1,250 hours (seven and a half (7.5) months) during the past twelve (12) months preceding the request for leave. Leave can be taken all at once or spread throughout the year. However, there is no wage replacement provided under FMLA and employers may require employees to use up accrued vacation and sick time. Employees should provide employers notice of the need for family and medical leave at least thirty (30) days in advance of foreseeable events and as soon as possible for unforeseeable events (usually within one (1) to two (2) business days of learning of the need for a leave).
When an employee returns from FMLA, the employer must reinstate the employee to the same position, if it is available, or to an equivalent position for which the employee is qualified with the same pay, benefits, and terms and conditions for employment.
Under certain limited circumstances, the employer may not be required to restore an employee to his or her position after termination of leave if the employee is among the highest paid ten (10) percent of employees of the employer.
It is important to note that the rights provided by the FAMILY AND MEDICAL LEAVE ACT are in addition to and do not replace the rights that are provided under New Hampshire state law to women who are pregnant as outlined earlier in this chapter, or any other rights your employer may provide by contract, policy, or otherwise.
The U.S. DEPARTMENT OF LABOR enforces the FAMILY AND MEDICAL LEAVE ACT (FMLA). To file an FMLA complaint, individuals should contact the WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF LABOR at 603-271-1492.
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