Bill, who is white, male, and heterosexual, calls the employee complaint hotline to complain about harassment by several of his co-workers. Specifically, Bill complains that he is being harassed by co-workers through their questions and comments insinuating that he is homosexual. He claims that co-workers joke that his marriage is a sham and that the woman who calls for him really is not his wife. Bill denies that he is homosexual and claims that the store manager had discouraged him from reporting his complaints and is now reducing his hours. What is an employer to do?
New Hampshire's law against discrimination prohibits discrimination in employment because of someone's sexual orientation or perceived sexual orientation.
The addition of "sexual orientation" to the list of specifically protected categories in employment became effective in 1998. This protection is in addition to the statute's protected categories of age, sex, race, color, marital status, physical or mental disability, religious creed, and national origin. With limited exceptions, the law applies to employers with more than five employees.
Under New Hampshire's law against discrimination, RSA 354-A, "sexual orientation" means "having or being perceived as having an orientation for heterosexuality, bisexuality, or homosexuality." Simply stated, the law affords protection to employees who are targeted either based on their actual sexual orientation or based on what others believe an employee's orientation to be. Thus, an employee need not be actually gay, lesbian, bisexual, or heterosexual to be protected. It is enough that a person is "perceived" as having that particular sexual orientation and it is not relevant whether the perception is correct.
As with the other protected classes listed, it is also unlawful discriminatory practice to retaliate against employees exercising their rights under this law. The law prohibits discharging, expelling or otherwise retaliating or discriminating against any person because that person has opposed any practices forbidden under the New Hampshire law against discrimination or because that person has filed a complaint, testified or assisted in any proceeding under the law. Even if the underlying complaint of discrimination based on sexual orientation is unsupported, an employer may still be liable for retaliation.
The number of total charges of discrimination at the New Hampshire Human Rights Commission based upon sexual orientation has vacillated but remained low. In 2005, the Commission reported 7 charges of discrimination based upon sexual orientation or 2% of the total charges. In 2006, the Commission reported 5 charges of discrimination based upon sexual orientation or 2% of the total charges. In 2007, there were 14 charges of discrimination based upon sexual orientation or 4% of the total charges.
Issues about sexual orientation are often challenged in the environment of the work place where there are photographs on desks or walls and conversations about husbands, wives, partners, and family members. Types of harassment or discriminatory conduct in the work place may include overt acts such as derogatory or hateful words or less obvious acts such as negative stereotyping. It may include physical acts such as touching or non-verbal acts such as leering or gestures.
There are protective measures an employer can take in preventing discrimination in the work place.
- Employers should implement a written equal employment or anti-discrimination policy that applies to all protected classes. The policy should include a complete and thorough description of the type of conduct that constitutes discrimination or harassment. The policy should include a clear complaint procedure for employees to follow with options on who to go to with a complaint.
- Employees should be provided a copy of the policy and sign a confirmation as to receiving, reading, and understanding the policy, of which confirmation is placed in the employee's personnel file. The written policy should furthermore be posted on bulletin boards in conspicuous places so that all employees are aware of it.
- Employers should also conduct training for managers and non-managers regarding the policy. Training is important because it informs and sensitizes employees on the type of behavior that can give rise to harassment or discrimination, and it aids in helping them know and understand the written policy and the implementation of the written policy. Training should include overall harassment prevention training and include examples of unaccepted behavior relating to sexual orientation, as well as the other protected categories.
- Employers should also train managers to respond appropriately to complaints of harassment, discrimination, or retaliation.
- Employers should investigate and respond promptly to complaints of discrimination and harassment. All complaints, no matter how minor should be treated seriously and investigated.
- Employers also need to be consistent in the handling of employee complaints and with any discipline of employees who violate the policy. As the New Hampshire Supreme Court has advised employers, it is not enough to merely have a policy, employers need to follow their policy.
Thus, in Bill's example, the employer should have a written policy that describes the types of conduct unacceptable in the work place, including conduct based upon actual or perceived sexual orientation, and a statement that the company prohibits retaliation against anyone who files a complaint or who participates in an investigation. Prompt steps should be taken to investigate Bill's complaint. The employer should take appropriate and responsive action based upon the investigation including discipline.
Finally, while New Hampshire protects discrimination based upon sexual orientation, federal law does not cover sexual orientation. On November 7, 2007, the United States House of Representatives voted to approve H.R. 3685, a bill which seeks to ban workplace discrimination based on sexual orientation. The Employment Non-Discrimination Act (ENDA) is a proposed federal law that would prohibit discrimination against employees on the basis of sexual orientation. Under the bill, businesses with fifteen or more employees are prohibited from engaging in such discrimination. There are exceptions for armed forces, private clubs, and religious organizations. The bill has not been voted on in the Senate, and President Bush has threatened to veto it.
Jennifer Parent is a Director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association. Jennifer can be reached at (603) 628-1360 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.