NH Discrimination – In recent weeks a bill has been brought before the Senate Judiciary Committee, SB 263, aimed at eliminating the gap between protections afforded adults versus children with regard to discrimination in their “work” places. Currently children have lesser protection.
Civil Rights Act of 1963
Currently under federal laws, e.g. the Civil Rights Act of 1963, the Americans with Disabilities Act as Amended, and New Hampshire RSA 354-A:7, adult employees of businesses with greater than 6 employees are protected from discrimination on the basis of sex, disability, and race. The state law, 354-A:7 additionally provides protection against discrimination on the basis of sexual orientation and gender identity. Under these laws in order to hold an employer liable for its discriminatory and hostile work environment, the evidence must show that the employer knew of harassment and failed to take prompt, remedial measures to stop the harassment.
Do Federal Laws Protect Children
Certain federal laws, e.g. Title IX, Title VI, and the Rehabilitation Act prohibit gender, race, and disability discrimination in schools. Currently no federal or New Hampshire state law, however, prohibits discrimination on the basis of gender identity or LGBTQ status. Under federal law, it also more difficult to hold a school liable for its discriminatory hostile “learning” environment for students. Under federal law, a school is liable only where it is shown to be “deliberately indifferent” to its hostile learning environment, meaning the school’s “inactions in response to the harassment are clearly unreasonable in light of known circumstances.” See Davis v. Monroe County Board of Education (emphasis added). Unlike for adults in the workplace, the focus in school cases is not on whether the environment was actually remediated by those in authority, but rather on whether the school merely took any action, even remotely calculated, to correct the harassment. Generally speaking, if the school has taken any responsive action, even if ineffective, the school will not be held liable for harassment of its students.
SB 263 would amend our state’s bullying law to permit a private right of action, for children suffering in discriminatory hostile learning environments, that is equal to the right of action already afforded adults.
Very recently, I had occasion too, to consider the rights of LGBTQ students in NH schools versus LGBTQ adults at work. Here too, the adults fare far better. The NH civil rights act affords monetary relief for adults abused or harassed at work due to their sexual orientation and gender identity. Meanwhile, the same act has not been interpreted to apply to NH public schools, and federal law does not fill in the gaps for LGBTQ kids.
If you have questions regarding harassment and abuse at work or school, please contact Megan Douglass at Douglas, Leonard & Garvey at 1-800-240-1988 for a consultation or fill out our online contact form.