Employment Discrimination

LFDA Editor

In Brief:

  • New Hampshire law prohibits discrimination against employees based on age, sex, sexual orientation, national origin, race, religion, marital status, physical disability, or mental disability. 
  • People from New Hampshire who believe they are victims of employment discrimination should contact the state Commission for Human Rights.
  • In recent years legislators have considered adding protections for transgender citizens, people with bad credit history, and people with criminal records.
  • Pro: U.S. Department of Labor statistics show there are still differences in pay based on sex, race, and other classes, and the government has a duty to strengthen laws to ensure all citizens have an equal opportunity to work. 
  • Con: Anti-discrimination laws have gone too far, and are burdening employers with costly lawsuits that aren’t going to impact the underlying causes of pay differences, most of which apply to career choices.

Issue Facts:

There are both state and federal laws that protect employees against discrimination.  Some lawmakers want to take anti-discrimination laws a step further, to protect new classes of citizens. 

New Hampshire law

Employment discrimination includes refusing to hire someone, firing someone, paying someone less, and other differences “in terms, conditions or privileges of employment.”  The discrimination must be based on one of the traits listed below and not an occupational qualification like education or work experience.

New Hampshire law specifically prohibits discrimination in employment based on:

  • Age
  • Sex (but not gender identity, which would also cover transgender individuals
  • Sexual orientation, protecting both gay and lesbian people
  • National origin
  • Race
  • Religion (“creed”)
  • Marital status
  • Physical disability
  • Mental disability
  • Being the victim of sexual  assault, harassment, domestic violence or stalking

The protections against sex discrimination also cover pregnancy and sexual harassment.

Employers are also required to make “reasonable accommodation” for physical or mental limitations, unless the employer can demonstrate that the accommodation would be “an undue hardship.”  For example, it is reasonable to expect an employer to provide a chair for a pregnant employee operating a cash register.

Enforcing employment discrimination

New Hampshire’s employment discrimination law only applies to workplaces with six or more employees.  There are exceptions for religious organizations.

The New Hampshire Commission for Human Rights is responsible for investigating and enforcing employment discrimination violations.  An employee generally has 180 days after an incident to file with the Commission.

If you believe you are a victim of employment discrimination in New Hampshire, contact the Commission for Human Rights.

Recent changes

In 2014 then-Governor Maggie Hassan signed a stricter law against pay inequity between men and women.  The bill, SB 207, also made it illegal for an employer to punish employees who discuss their pay.  SB 207 also increased the amount of time for an employee to file a complaint with the state about unequal pay based on sex.

Another 2014 bill made it illegal to discriminate against an employee because he or she is the victim of domestic violence, harassment, sexual assault, or stalking.

Federal law

Federal law in the United States also prohibits discrimination at the workplace for many of the same classes of people who are protected at the state level. It applies to any business with fifteen or more employees.

The Equal Employment Opportunity Commission is the federal agency responsible for investigating and enforcing employment discrimination violations.

Do New Hampshire employees need more protections?

In recent years New Hampshire legislators have tried to expand employment discrimination laws in a few different ways.

Gender identity

New Hampshire does not prohibit discrimination based on gender identity, which may be different from the biological sex of a person.  A law prohibiting gender identity discrimination would cover transgender citizens.

Supporters note that about half of states – including all of New England – prohibit discrimination based on gender identity. 

Opponents express concern that male sexual predators will abuse gender identity protections to enter women’s bathrooms to find victims.

Some experts believe that New Hampshire’s law against sex discrimination would actually cover gender identity if the law was ever tested in court.  Courts in other states have ruled that sex discrimination includes discrimination against transgender citizens.

Credit history

Some states limit employers’ use of credit history in employment decisions. 

Supporters argue that credit history is private, personal information that should not be open to employers.  They also argue that if bad credit history prevents a worker from finding employment, it becomes even more difficult for that worker to improve his or her credit history, creating a spiral of debt.

On the other hand, some jobs require employees to manage money, and a bad credit history may indicate an employee is not up to the task or that the individual is not trustworthy.

Criminal history

Some states have passed “Ban the Box” laws, which prohibit employers from asking applicants about past criminal convictions at the beginning of the hiring process (often through a checkbox on an application). 

Supporters of “Ban the Box” argue that people with past criminal convictions are often unjustly screened out, which makes it more difficult for them to secure a job and reenter society. 

Opponents of “Ban the Box” argue that it is very reasonable for employers to consider past criminal convictions depending on the job and the crime.  For example, an armored truck company should not be prevented from turning away a former bank robber.

Other policy ideas

Other states have considered laws that:

  • Increase the amount of time after an incident that an employee has to file a discrimination complaint
  • Cap damages in employment discrimination lawsuits
  • Prohibit discrimination based on political beliefs

PROS & CONS

"For" Position

By LFDA Editor

 “Yes, NH should pass stricter laws prohibiting pay and hiring discrimination.”

  • Employment discrimination is still a widespread problem, even though laws against discrimination have been in place for decades.  For example, according to the National Partnership for Women & Families, women working full-time in New Hampshire earn 76 cents for every dollar earned by men.  That is the largest gender pay gap in New England.   The data show an even worse experience for women of color.  Asian women are paid 73 cents and Latinas are paid 64 cents and for every dollar paid to white, non-Hispanic men in New Hampshire.  So long as discrimination is still a problem, there is room for improvement in anti-discrimination laws.
  • As we evolve as a society, it is important to acknowledge that discrimination changes, too.  New Hampshire needs to update its laws to protect newly acknowledged groups, such as transgender citizens.
  • The employer-employee relationship, by its very nature, gives employers more power.  After all, New Hampshire is an at-will state, which means that unless there is a contract, employers do not need cause to terminate an employee.  The state must equalize the power imbalance for employees to be able to fight discrimination.  This includes giving employees more access to information about pay and more time to file complaints.

"Against" Position

By LFDA Editor

“No, NH should not pass stricter laws prohibiting pay and hiring discrimination.”

  • Pay gaps will not be solved through lawmaking, since much of the difference in pay is due to career choices. For example, women are more likely to take time off to care for children, which slows their career progress.  There are also more women employed in fields that pay less, such as education and administrative support.  Regardless, statistics show that the gender pay gap is shrinking.
  • Courts have the flexibility to interpret existing anti-discrimination laws to fit new situations.  For example, laws against discrimination based on sex and sexual orientation have been used to protect transgender employees in other states.
  • Some anti-discrimination laws make it more likely that employees will see discrimination where none exists. For example, employees discussing pay are unlikely to have complete and accurate information.  By forbidding employers from limiting how employees discuss pay, New Hampshire law increases the likelihood of workplace conflict and frivolous lawsuits. 
  • If employees are given years before they must file a discrimination complaint, it becomes less likely that the employer will have accurate information about that employee’s time with the business.  Employees should be required to file discrimination complaints promptly to ensure that both sides have complete and accurate information.
  • Employment discrimination laws contribute to the excess of lawsuits in the United States, which force employers to raise prices for products and services for all Americans. 

LEGISLATIVE HISTORY

Killed in the House

Prohibits employers from using credit history in employment decisions.

Killed in the House

Prohibits employers from asking a job applicant about his or her criminal history prior to an interview.

Tabled in the House

Prohibits discrimination based on gender identity.

Tabled in the Senate

Prohibits an employer from discriminating against an employee who is or has been a victim of domestic violence, sexual assault, or stalking.

Should NH pass stricter laws prohibiting pay and hiring discrimination?

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Issue Status

Attempts to block employers from asking about an applicant's criminal or credit history were killed in the House this year, while an attempt to prohibit discrimination based on gender identity was tabled. 

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