Update from the NH Commission for Human Rights

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Update from the NH Commission for Human Rights

• November 6, 2007
• Manchester Human Resources
• Association

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Charge filing trends

• Charge filings were up (288 in 06 to 357 in 07)
  but not significantly higher than the average of
  324.5 charges per year over the past 6 years.
  Highest number of charges in that period was 379,
  in 03.
• Portion of increase was in housing (5 to 24)
• Increase in public accommodations (9 15)
• Significant increase in disability-based charges
  because of amendment of statute to include
  reasonable accommodation claims, effective
  1/01/07. HRC received 20 additional disability
  claims.
• Smaller increase due to non-profit educational
  and charitable organizations no longer exempt as
  of 07/01/06

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Other significant trends

• Sexual orientation claims increased from 5 to 18.
  Highest since 2002.
• 2 in housing 1 in public accommodations
• But remainder in employment and most of these
  S.O. harassment
• Make sure harassment prevention policies are
  explicit about sexual orientation as a protected
  category and that it includes perceived sexual
  orientation
• Provide training at least with managers
  supervisors to ensure that they know the law and
  understand their role in modeling appropriate
  behavior and preventing harassing conduct.

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Trends in sex-based claims

• Sexual harassment claims are down to new low!
  28 of all claims in 02 (96 claims) 15 of all
  claims in 07 (57 charges).
• In addition to adopting and circulating an
  appropriate prevention policy, training,
  especially with supervisors and managers,
  continues to be important prevention tool.

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Trends in sex-based claims

• Pregnancy discrimination claims have stayed at a
  consistent average of about 30 claims per year
  (33 in 07)
• Most of these claims involve allegations of
• Termination coincidental with employer learning
  of employees pregnancy
• Allegations of failure to provide leave, or
• Discipline or termination for employees taking
  leave for period of temporary disability due to
  pregnancy, childbirth, or related medical
  condition.

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Preventing pregnancy claims

• Review your employers leave policies that apply
  in the case of sickness, disability, or leave of
  absence
• Make sure that under these policies, pregnant
  employees are treated the same as any other
  employee who is temporarily disabled, unless
• Policy as applied to pregnant employees would
  violate RSA 354-A7, VI(b) by not providing any
  leave for periods of temporary disability due to
  pregnancy, childbirth, or a related medical
  condition
• Remember that even if FMLA doesnt apply 354-A
  might.
• Make sure that all those who might make decisions
  or answer questions relating to leave understand
  the requirements of NH RSA 354-A7, VI(b)

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Preventing pregnancy discrimination claims

• Document, document, document
• Making employment decisions about discipline and
  firing around the time that you learn an employee
  is pregnant almost always looks bad, unless you
  can document the issues
• Make documentation a practice with all employees.

• Review past patterns and practices before taking
  action against employee who has just announced
  pregnancy
• Act consistently with past practices if you
  have never asked for doctors notes, why are you
  asking for one now?
• Consider revising practices that could backfire
  and do it before issue of pregnant employee is
  raised. (If youre not asking for a doctors
  note how do you know the period of absence is
  related to pregnancy?)

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How are cases being closed?

• Merit based closures i.e. decisions in CPs
  favor, settlements, and conciliations have run a
  fairly consistent 24-28 of all closures over the
  past 6 years.
• Very few hearings (2 in 06-07 biennium)
• NPC findings are running a fairly consistent
  24-28 of all closures over the past 6 years.
• Cases withdrawn from Commission so that CP could
  file in state or federal court went down
• 36 in 2006 25 in 2007 Average
  25.5 (6 yrs)

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Mediation

• Average of 20 cases per year resolved this way.
• Mediation is still a good solution in the right
  case
• Cases close earlier (av. 8 months, compared to 10
  months for all cases)
• Panel of experienced mediators
• No cost
• Confidentiality
• Can request delay in commission proceeding while
  in mediation, in order to save costs.

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HRC Investigates Reasonable Accommodation Claims

• RSA 354-A was amended effective 1/01/07, to
  require reasonable accommodation
• Law is essentially identical to ADA provisions
  with regard to R.A.
• Definition of qualified individual w/disability
• Definition of reasonable accommodation
• Reasonable accommodation requirements
• Definition of undue hardship

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In practice, this amendment means

• Employers with 6-14 employees now required to
  provide reasonable accommodations to qualified
  individuals with disabilities who need them
  (larger employers already provided under ADA)
• Commission no longer waives these claims to EEOC
  in Boston for investigation
• HRC and EEOC differ in that
• HRC investigates and may conduct hearing
• EEOC investigates and may litigate
• EEOC looking for strong cases and may dismiss
  sooner under its priority charge processing
  procedures

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Civil unions

• Same sex couples will be able to enter into civil
  unions as of 01/01/08, with all the same rights
  and responsibilities as married persons under NH
  law (HB 437)
• Since RSA 354-A covers marital status and sexual
  orientation
• marital status will now be interpreted to
  include civil union, not just marriage
• Failure to treat employee in a civil union the
  same way as a married employee with respect to
  compensation, benefits, leave, etc., may be
  discriminatory.

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What to review

• All policies and forms applying to married
  employees, or reflecting the marital status of an
  employee
• Benefits
• Leave (parenting, sick, etc.)
• Bereavement
• Sick dependent
• Nepotism/ethics policies

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What to ask

• Is the benefit required under NH law?
• Even if not required, would it be discrimination
  to offer it to heterosexual married employees but
  not to homosexual employees in civil unions?
• Anything required under NH law and/or not
  pre-empted by ERISA or some other federal law
  must be offered to employees in civil unions on
  the same basis as is offered to employees in
  marriages
• Would ERISA pre-empt application of RSA 354-A in
  this area?
• Retirement plans
• Severance plans
• Medical, dental, and death benefit plans
• Medical savings plans
• Private vs. public employer (ERISA does not apply
  to public employers)

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What to decide

• Even if ERISA would pre-empt application of RSA
  354-A, does the private employer want to extend
  benefits such as group insurance to the partners
  and their dependent children?
• Consult with insurance company, tax specialists,
  corporate counsel, and other specialists as to
  effect of COBRA, HIPPA, and on tax and payroll
  management.
• Certain federal laws define spouse and
  marriage in ways that will require you to treat
  those in civil unions differently. This will not
  be a violation of NH RSA 354-A.

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Examples

• Employer provides health insurance to employees
  and their spouses, as well as to gay employees
  and their partners. Should the employer continue
  to offer benefits to the unmarried gay employees
  and their partners after 01/01/07?
• Employer has 50 employees. Gay employee has
  entered into a civil union and has adopted her
  partners natural child. If the child has a
  serious medical condition needing care at home by
  a parent while undergoing treatment, is employee
  entitled to FMLA leave?

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Top tips

• Training
• Accessibility
• Documentation
• Investigate meaningfully in order to respond
  meaningfully whether internally or to HRC
• Consider mediation
• Dont intimidate witnesses
• Talk to Commission about concerns, needs,
  timelines