Sexual harassment is a form of workplace discrimination that is prohibited under both federal and state laws. In New Hampshire, as in the rest of the United States, employees have the right to work in an environment free from harassment, including unwanted sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature. This article will explore the nuances of sexual harassment law in New Hampshire, including the definitions, the potential impact on victims, the legal framework for addressing claims, and the challenges of proving harassment in court. Additionally, we will discuss the burden-shifting analysis, a crucial aspect of sexual harassment lawsuits, and offer guidance for those who may be facing sexual harassment in the workplace.
What is Sexual Harassment?
Sexual harassment refers to unwelcome and inappropriate behavior of a sexual nature that negatively affects an individual’s work environment. Under both federal and state law, sexual harassment is considered a form of sex discrimination and is prohibited in the workplace. The two main categories of sexual harassment are quid pro quo harassment and hostile work environment harassment.
Quid Pro Quo Harassment: This occurs when submission to or rejection of sexual advances is used as the basis for employment decisions, such as hiring, firing, promotions, or salary increases. For example, a supervisor may offer a promotion in exchange for sexual favors or threaten to deny an employee’s promotion if they reject a sexual advance.
Hostile Work Environment Harassment: This occurs when the conduct creates an intimidating, hostile, or offensive work environment that unreasonably interferes with an employee’s ability to perform their job. Examples of hostile work environment harassment include sexually suggestive comments, unwanted touching, or the display of inappropriate material, all of which create a toxic workplace atmosphere.
The Impact of Sexual Harassment
Sexual harassment can have devastating consequences for the individuals subjected to it, affecting both their personal well-being and their professional lives. The emotional, psychological, and physical effects can linger long after the harassment occurs.
Physical and Emotional Harm
Victims of sexual harassment often experience significant emotional distress, including:
Anxiety and Stress: Constant worry about the next unwanted interaction or retaliation can cause significant anxiety.
Depression: The emotional toll of harassment may lead to depression, feelings of helplessness, and a sense of powerlessness.
Sleep Disruption: Victims may struggle with insomnia or nightmares, impacting their overall health and well-being.
Physical symptoms may also manifest, such as headaches, stomachaches, or other stress-related illnesses.
Job Performance and Career Advancement
Sexual harassment can hinder a victim’s ability to perform their job duties effectively. Anxiety, depression, and the fear of further harassment can lead to:
Decreased Productivity: Employees may find it difficult to focus, leading to mistakes, missed deadlines, and an overall drop in productivity.
Job Insecurity: In some cases, victims may feel forced to leave their jobs due to the harassment, either because they feel unsafe or because their professional standing has been damaged.
Career Stagnation: For victims subjected to quid pro quo harassment, rejection of unwanted advances can directly affect their career progression, leading to missed promotions or even termination.
Furthermore, sexual harassment can contribute to a toxic work culture, reducing overall morale and productivity among all employees. When harassment is allowed to persist unchecked, it can erode trust within the organization and foster an environment of fear and uncertainty.
Legal Framework: Federal and State Law
Under Title VII of the Civil Rights Act of 1964, sexual harassment is prohibited as a form of sex discrimination in employment. Title VII applies to employers with 15 or more employees and is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Additionally, New Hampshire has its own state-specific laws that provide protections against sexual harassment in the workplace.
New Hampshire's Law Against Discrimination (RSA 354-A) prohibits discrimination based on sex, including sexual harassment, in employment. This law applies to employers with six or more employees and is enforced by the New Hampshire Commission for Human Rights (NHCHR).
In both federal and state contexts, sexual harassment is unlawful when it meets certain criteria, including unwelcome behavior and a negative impact on the victim’s work environment, performance, or employment opportunities.
The Elements of Sexual Harassment in New Hampshire
In order for behavior to constitute sexual harassment, it must meet specific criteria. While the exact elements of a sexual harassment claim can vary depending on the jurisdiction, the following general principles apply.
Key Elements of Sexual Harassment
Unwelcome Conduct: The behavior must be unwanted by the individual, meaning the victim does not invite or consent to the sexual advances.
Sexual Nature of the Conduct: The conduct in question must be sexual in nature, including verbal comments, physical gestures, visual displays (e.g., pornographic images), or physical touching.
Impact on Employment: The harassment must meet one of the following conditions:
Quid Pro Quo Harassment: Submission to or rejection of the conduct becomes a term or condition of employment.
Hostile Work Environment: The conduct unreasonably interferes with the individual’s work performance or creates an intimidating, hostile, or offensive workplace environment.
Hostile Work Environment vs. Quid Pro Quo Harassment
While both hostile work environment harassment and quid pro quo harassment are forms of sexual harassment, they differ in the way the harassment occurs:
Quid Pro Quo Harassment: This type of harassment usually occurs when someone with power (e.g., a supervisor) demands sexual favors in exchange for something related to employment, such as promotions or favorable job assignments
Hostile Work Environment: This form of harassment typically involves a pattern of behavior or isolated incidents that create an atmosphere of fear, discomfort, or offense in the workplace. The harasser may not necessarily hold a position of power, but their behavior still creates an intolerable work environment.
Taking Action: What to Do if You Are a Victim of Sexual Harassment
If you believe that you have been a victim of sexual harassment in New Hampshire, it is essential to take prompt action. Here are the steps you should consider:
Document the Harassment: Keep a detailed record of the incidents, including dates, times, locations, and a description of the conduct. If there are any witnesses, note their names and contact information.
Report the Harassment: Notify your employer about the harassment. Most companies have policies and procedures for reporting harassment, which may involve contacting human resources or another designated individual.
File a Complaint: If your employer fails to take action or if the harassment continues, you may file a complaint with the New Hampshire Commission for Human Rights (NHCHR) or
the Equal Employment Opportunity Commission (EEOC). These agencies investigate claims of sexual harassment and can take legal action on your behalf.
Consult an Attorney: Sexual harassment lawsuits are complex, and an experienced employment law attorney can help you navigate the legal process. An attorney can assess your case, advise you on your legal options, and represent your interests in court if necessary.
Filing Sexual Harassment Complaint at the New Hampshire Commission for Human Rights
A complaint is an informal report of discrimination an individual makes to the Commission. A Charge of Discrimination is a formalized complaint, which is notarized and docketed by the Commission. Visit the Commission's website for more information.
Can You File a Charge of Sexual Harassment Anonymously?
No, you cannot file a Charge of Discrimination anonymously. The Commission requires your identity to proceed with the charge, as they need to investigate and communicate with you throughout the process. The law provides protections from retaliation.
How Long Do I Have to File a Charge of Sexual Harassment?
The filing deadline for discrimination charges depends on where the discrimination took place and what type of discrimination it is:
• Under New Hampshire State Law (NH RSA 354-A): A charge must be filed within 180 days from the last date of discrimination.
• Under Federal Law: If your employer is subject to federal law, you have 300 days from the last date of discrimination to file your charge with the Equal Employment Opportunity Commission (EEOC).
It’s important to file your charge within the time frame to avoid losing your opportunity to seek justice.
If You Have an Employment Complaint, Should You Contact the EEOC as Well?
If you are filing a Charge of Discrimination related to employment, and your employer has 15 or more employees, the EEOC will automatically receive your charge. This process is known as dual filing, and it means your complaint will be filed with both the New Hampshire Commission for Human Rights (NHCHR) and the EEOC.
For smaller employers, the charge may only be filed with the NHCHR.
How Much Does It Cost to File a Charge of Sexual Harassment?
There is no cost to file a Charge of Sexual Harassment Discrimination with the NHCHR. The Commission provides its services free of charge, including the process of drafting and docketing your charge.
This ensures that everyone has access to the legal process, regardless of their financial situation.
Do You Need an Attorney?
You do not need an attorney to file a Charge of Sexual Harassment Discrimination or to participate in the Commission’s process. However, you may choose to hire an attorney to help you navigate the legal system, especially if your case is complex. An attorney can offer advice, represent you in hearings, and help with settlement negotiations.
Does the Commission Provide Legal Advice?
The Commission acts as a neutral party and cannot provide legal advice. Its role is to investigate discrimination complaints, not to advocate for one side. If you need legal guidance or representation, it’s essential to consult with an attorney who specializes in employment or civil rights law.
What if You are Retaliated Against for Filing a Charge of Sexual Harassment Discrimination?
It is illegal for an employer, housing provider, or any other entity to retaliate against you for filing a Charge of Discrimination. Retaliation may include actions like:
• Firing or demoting you
• Denying you promotions or raises
• Changing your job responsibilities or hours in an unfavorable way
If you experience retaliation after filing a charge, you can amend your charge to include the retaliation. The Commission will take appropriate steps to investigate and address retaliation.
What Happens After You File a Charge of Sexual Harassment Discrimination?
After you file a Charge of Discrimination, the Commission will begin its investigation. The process typically involves:
• Initial Review: The Commission will determine if the charge is within its jurisdiction and if there is enough evidence to proceed.
• Once the Commission has docketed your Charge of Discrimination, it will serve notice to the entity charged and your case is assigned to an Investigator in the order it was received. Assignment is not immediate. The wait time for an Investigator to be assigned varies. Once an Investigator is assigned, both parties will be notified and the investigation will proceed.
• Investigation: The Commission will gather evidence, interview witnesses, and assess the facts.
• Resolution: If there is sufficient evidence of discrimination, the Commission may attempt to resolve the issue through mediation or other alternative dispute resolution methods. If a resolution isn’t reached, the Commission may move forward with a formal hearing or investigation. You may be entitled to and awarded damages which include non-monetary and monetary compensation.
Conclusion
Sexual harassment is a serious issue that can have far-reaching consequences for both victims and organizations. In New Hampshire, individuals who experience sexual harassment are protected by both federal and state laws. Whether the harassment takes the form of quid pro quo demands or creates a hostile work environment, employees have the right to seek legal recourse.
If you or someone you know is facing sexual harassment in the workplace, it is important to take action as soon as possible. Document the harassment, report it to your employer, and consider consulting with a skilled attorney who can guide you through the legal process. With the right support, victims of sexual harassment can seek justice and ensure a safer, more respectful work environment for everyone.
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