Benefits of Sexual Harassment Seminar Training in New Hampshire:

The New Hampshire Supreme Court’s recent decision in E.E.O.C. v. Fred Fuller Oil Co. could have significant implications for public employers, as elected officials and governmental employees can now be held personally liable for aspects of workplace discrimination and harassment.

Legal Background:
New Hampshire’s nondiscrimination statute, RSA 354-A, provides that it shall be an “unlawful discriminatory practice” for an employer with at least six (6) employees to “refus[e] to hire or employ or to bar or discharge from employment . . . or to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment, unless based upon bona fide occupational qualification” if such refusal to hire/employ and/or discrimination is based upon the individual’s age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability, or national origin. Unlawful discrimination includes harassment of employees because of their status as a member of a protected class. The law also prohibits “any person, employer, labor organization, employment agency, or public accommodation” from “[a]iding, abetting, inciting, compelling or coercing another or attempting to aid, abet, incite, compel or coerce another to commit an unlawful discriminatory practice or obstructing or preventing any person from complying with th[e statute] or any order issued under the authority of th[e statute].” The law also prohibits

“any person engaged in any activity to which th[e statute] applies” from retaliating against an individual who opposes workplace discrimination or who participates in any complaint proceeding opposing workplace discrimination.

The Fred Fuller Decision:

RSA 354-A has long prohibited “any person” from aiding and abetting discrimination and from retaliating against those who oppose workplace discrimination. However, due to the way in which the statute is worded, it remained unclear as to whether the Legislature intended to put individuals at risk of liability. The Commission for Human Rights has interpreted the statute as creating individual liability, but in 2005, the New Hampshire Federal District Court issued a decision which reached the opposite result.

The Fred Fuller Oil Co. is a discrimination case pending in the federal court. Rather than rely on the earlier federal court ruling that the statute did not provide for individual liability, the federal court “certified the question” to the New Hampshire Supreme Court. This is a process by which the federal court decides that it would be more appropriate for the highest state court to interpret a state statute.

In its decision, the New Hampshire Supreme Court held that the statutory references to “person” must be read in the context of the statutory definitions section, which defines “person” broadly to include “one or more individuals.” The Court determined that it was reasonable to assume that the Legislature intended that individual employees who aid and abet workplace discrimination, or who retaliate against another employee in the workplace because he or she has engaged in protected conduct, should be held personally liable for that unlawful discriminatory practice.