New Hampshire’s Law Against Discrimination
New Hampshire’s law against discrimination in many ways parallels federal acts that prohibit discrimination, but there are some ways in which New Hampshire acts are distinct. Some of those differences are as follows.
Threshold Number of Employees
New Hampshire’s law against discrimination applies to employers with six (6) or more employees. Included are private employees, as well as the state and all of its political subdivisions, boards, departments and commissions. Certain social clubs, fraternal or religious associations or corporations are exempt from this law. Federal discrimination laws have higher thresholds for jurisdiction (fifteen (15) to fifty (50) employees depending on the statute).
Scope Of Employer Discrimination
The law establishes that it shall be an unlawful discriminatory practice for “an employer because of the age, sex, sexual orientation, race, color, marital status, physical or mental disability, religious creed, or national origin of any individual to refuse to hire an employee or to bar or to discharge from employment such individual or to discriminate against such an individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” (RSA 354-A:8, I; NH Admin. Rules, Hum. 401. 01).
Differences With the Scope of Federal Discrimination Statutes
It is important to note several differences between New Hampshire and federal nondiscrimination laws. First, New Hampshire law provides that marital status is protected; there is no similar protection under federal law. Second, unlike federal law, there is no requirement under New Hampshire law that an individual be at least forty (40) years old to file an age discrimination complaint. Finally, New Hampshire law prohibits discrimination on the basis of “sexual orientation.” Sexual orientation is defined as “having or being perceived as having an orientation towards heterosexuality, bisexuality, or homosexuality.” Federal law does not have a similar provision.
Pregnancy Discrimination/Maternity Leave and Reinstatement
New Hampshire's Employment discrimination statute specifically prohibits pregnancy discrimination and outlines how covered employers should deal with employment, accommodations, leave, pay, benefits and reinstatement. That statute, RSA 354-A:7, VI provides that [ covered employers] shall permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable. In other words, there is no durational limit on the leave as long as it is medically necessary.
The law also provides that for all other employment related purposes, including receipt of benefits under fringe benefit programs, pregnancy, childbirth, and related medical conditions shall be considered temporary disabilities, and a female employee affected by pregnancy, childbirth, or related medical conditions shall be treated in the same manner as any employee affected by any other temporary disability. The law prohibits covered employers from failing or refusing to make reasonable accommodations for the known physical or mental limitations of a qualified individual with a disability who is an applicant or employee, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer. Finally the law prohibits employers from denying employment opportunities, compensation, terms, conditions, or privileges of employment to a job applicant or employee who is a qualified individual with a disability, if such denial is based on the need of such employer to make reasonable accommodation to the physical or mental impairments of the applicant or employee.
Limits On the Use of Information In Job Application
New Hampshire law also states that “. . . it shall be an unlawful discriminatory practice for an employer to print or circulate any statement, advertisement or publication, or to use any application or to make any inquiry which expresses, directly or indirectly, any limitation, specification or discrimination as to age, sex, sexual orientation, race, color, marital status, physical or mental disability, religious creed or national origin or any intent to make any such limitation, specification or discrimination in any way on the ground of age, sex, sexual orientation, race, color, marital status, physical or mental disability, religious creed or national origin, unless based upon a bona fide occupational qualification; provided, however, that nothing in that Act shall limit an employer after the offer of hire of an individual from inquiring into and keeping records of any existing or preexisting physical or mental conditions.” (RSA 354-A:7, III).
Violations of Discrimination Laws
Because most violations of Title VII of the Civil Rights Act of 1964 are also violations of New Hampshire law against discrimination, the federal agency which enforces Title VII, the Equal Employment Opportunity Commission (EEOC), has an arrangement with the New Hampshire Commission for Human Rights whereby most complaints are investigated, at least initially, by the state agency.