Ready to Complain?

Filing a harassment suit is more complicated than it sounds

When you talk about "harassment," people pretty much assume you're talking about sex. So while gender issues work well as a case-in-point on the larger legal issue of workplace harassment, let's start by stipulating that other forms exist, too. According to the U.S. Equal Employment Opportunity Commission, "harassment is unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability or genetic information."

That definition comes from Federal laws such as the Civil Rights Act of 1964 (lawyers call it "Title VII"), the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990 ( the "ADA"). It's also covered by New Hampshire state law, RSA 354:A, which adds marital status and sexual orientation to the list of covered forms. It also leads to a little conflict and confusion, but let's hold that thought for a moment.

To become illegal, harassment must reach the level where "enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive." It can include, they say, jokes, epithets, name calling, mockery, insults, objects, and pictures. It can also include retaliation against someone for complaining about harassment in the first place.

"Given recent U.S. Supreme Court decisions, it appears that retaliation cases may go up from where we are now," says attorney Jennifer Lee Ruth Parent of McLane Graf Raulerson & Middleton in Manchester. Those decisions have been expanding the bounds of retaliation so that now it covers not just the person who complained, but close associates as well.

One case, Thompson vs. North American Stainless, found that the firing of the fiance of a woman who complained about sexual harassment could be considered retaliation. "The court said Miriam would have been dissuaded if she thought Eric would be fired," Parent says. "It didn't fix a class of relationships, but it provided guidance such as that a close family member might always meet the standard; but a minor reprisal on a mere acquaintance would be less likely to."

According to Parent, an earlier case also extended protection to people who provide information in support of a harassment claim. That case, Crawford vs. Metropolitan, found that the plaintiff had been fired for participating as a witness in an internal investigation of reported harassment. "Crawford claimed she was fired because she was 'disapproving' of the behavior," Parent says, and the court was disapproving of that.

Let's not forget the Family Medical Leave Act either. According to attorney Kenneth J. Barnes in Concord, "The ADA gets intertwined with disability discrimination issues because, under the ADA and RSA 358A, it's illegal to discriminate because of a disability, which is defined as 'an impairment that substantially interferes with a major life activity.'" Employers are required to make "reasonable accommodations" to address the disability, and according to Barnes, that includes the need to take time off to care for yourself or family members.

"One of the reasons the employer might say you can't do your job is because you are absent too much," Barnes says, "so for a lot of people with disabilities, the time they are off is used against them as a performance issue. The ADA was recently amended to make it clear there should be less question in the court as to whether you have a disability and more as to whether it was why the company failed to promote or fired you."

Like cases involving retaliation, the area of age discrimination seems to be growing, too – call it another effect of the "economic downturn." On the federal level, claims of age discrimination have grown from 19,103 in FY2007 to 23,264 in FY2010.

"A lot of employees are trying to make ends meet, but doing it by getting rid of the people who have been working there for a long time, and therefore make the most money," notes Barnes. "All they look at is the bottom line, so they hire a lot of kids out of high school to replace a few high paid workers and make their budget look better. That usually doesn't work for the employer, but it's also very hard to prove so it winds up not being litigated as much as it occurs."

Regardless of the form of discrimination, New Hampshire law says the complaint process starts with a report to the state's Human Rights Commission, if the complaint is filed under RSA 354:A. Alternatively, the complainant may file under one of the federal laws instead – or, as Barnes points out, only under federal law if the complainant works for the federal government.

Following the filing of a complaint, the Human Rights Commission may call for mediation, may achieve a resolution without mediation, or may make a finding of probable cause that the harassment really occurred. A hearing follows that finding. Or, after 180 days, New Hampshire law gives the plaintiff the right to take his or her case to court. Then the fun starts.

"You wont find a lot of the most egregious violations in court records because employers are not stupid," says Barnes. "You're not going to get a trial in cases where they blatantly violated one of these laws; they settle those."

But if you do end up in court the difference between the federal and the state laws can make a big difference to the outcome, including whether you ever get to trial. "New Hampshire courts don't believe causes of action should be thrown out before it gets to a jury," Barnes says. "Federal courts throw cases out on summary judgments some 70 or so percent of the time, and New Hampshire courts deny summary judgments between 70 and 90 percent of the time."

The difference comes down to the information presented. Federal summary judgments are usually based on affidavits written by lawyers based on the statements of litigants and witnesses, but the sources themselves never show up in court to face cross-examination.

"If you have a jury trial, then you have evidence presented to a jury, and real witnesses that they can look in the eye and see their demeanor," Barnes says. "That's what New Hampshire courts say. In federal court, judges look at affidavits and say 'we don't want to waste our time hearing the case'."

Both sides understand that – which brings us to the fun part. If a complainant files a case in state court, in most cases, the employer will seek to have it moved to federal court instead – and usually succeed. "There's a lot that goes into where a case may be," says Parent, who does mostly defense work.

Plaintiff's lawyers generally try to stop that. "You need to have a jury trial so that the person who makes the decision has actually seen the evidence and the witnesses," says Barnes, a plaintiff's attorney. "That's why we have trials: the individual facts do matter, and they make the difference whether the employee has suffered damages and deserves compensation."