Effective July 1, 2006, New Hampshire’s law against discrimination has been amended to broaden the list of employees under its protection to those working for charitable and educational organizations previously exempted from compliance.
The Prior Law
New Hampshire RSA 354-A: 2, VII previously exempted from the definition of employer any “club exclusively social, or a fraternal, charitable or educational or religious association or corporation, if such club, association or corporation is not organized for private profit.” The law always did, and still does, exempt from the definition “any employer with fewer than six persons in its employ.”
Most federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act have a higher threshold number of employees before the particular law applies to an employer. For example, Title VII does not apply to employers with fewer than fifteen employees. Consequently, small charitable or educational employers in New Hampshire were previously able to rely on the fact that they were exempted from the definition of employer when it came to issues such as sexual harassment, pregnancy leave and discrimination on the basis of any number of protected classifications.
The New Law
RSA 354-A: 2, VII has been repealed and reenacted to read as follows:
"Employer" does not include any employer with fewer than 6 persons in its employ, an exclusively social club or a fraternal or religious association or corporation, if such a club, association, or corporation is not organized for private profit, as evidenced by declarations filed with the Internal Revenue Service, or for those not recognized by the Internal Revenue Service, those organizations recognized by the New Hampshire secretary of state. Entities claiming to be religious organizations, including religious educational entities, may file a good faith declaration with the human rights commission that the organization is an organization affiliated with, or its operations are in accordance with the doctrine and teaching of a recognized and organized religion to provide evidence of their religious status...
The Practical Impact
The most significant impact of the change in the law is on charitable and educational employers with between six and fourteen employees. Bona fide fraternal and social organizations and religious institutions remain exempt. Larger employers were previously required to comply with federal law which similar to New Hampshire law prohibits discrimination on the basis of race, sex, religion, national origin, age, disability, and veteran status.
In addition, all charitable and educational organizations, regardless of size, are impacted by this change insofar as New Hampshire law, in some areas, provides greater protection to employees than does the federal law.
One of the clearest examples of this is the protection provided under New Hampshire law to pregnant women. RSA 354-A: 7, VI requires an employer to permit a female employee to take leave of absence for the period of temporary 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 must be made available to her by the employer unless business necessity makes it impossible or unreasonable to do so. Practically speaking, the period of an employee’s leave and the time frame for which a position must be held open, especially the employee suffers from medical complications, can be longer under New Hampshire law than under most state laws; thus, the financial impact on the company can be more significant.
Another example is the addition of sexual orientation as a protected class under RSA 354-A. Federal law does not provide similar protection.
Clearly, the expectation is that charitable and educational institutions will be among the most diligent in safeguarding the civil rights of their employees. In light of the new law, employers should review their policies. However, often these organizations are the ones which struggle the most with cash flow and budgets; and there are times when compliance with the law, such as the pregnancy leave law discussed above, can be expensive.
Another recent legislative change in New Hampshire illustrates this point further. Effective January 1, 2007, RSA 354-A will also require employers to make reasonable accommodation to qualified employees or applicants with a disability in order to allow them to perform the essential functions of their job. Although employers were previously prohibited from discriminating on the basis of disability, the reasonable accommodation provision of the ADA was not part of the New Hampshire law. Employers of between six and fourteen employees, including charitable and educational organizations, will now be required to make any accommodation that would not create an undue hardship on the employer. This could have a significant financial impact on smaller employers.
Consequently, it is time for all small employers, particularly charitable and educational institutions, to dust off their employee handbooks in order to update them to incorporate the changes to under state law. With careful planning and appropriate new policies, the change should be seamless and have minimal impact on employers while benefiting current and prospective employees. In addition, the increased consistency between state and federal law should be particularly helpful to those who implement such policies in the workplace.
Charla Bizios Stevens is a member of the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. She represents employers in litigated and non-litigated matters and is available to conduct workplace and management training. Charla can be reached at 603-628-1363 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth. www.mclane.com