2006 Spring, 6. Anatomy of an Employment Discrimination Lawsuit.

AuthorBar Journal Author - Attorney Lauren Simon Irwin

New Hampshire Bar Journal


2006 Spring, 6.

Anatomy of an Employment Discrimination Lawsuit

New Hampshire Bar Journal Volume 47, No. 1, Pg. 6 Spring 2006 Anatomy of an Employment Discrimination Lawsuit Bar Journal Author - Attorney Lauren Simon Irwin Introduction

Employment discrimination continues to exist in New Hampshire. Litigation of these types of claims can be both challenging and rewarding.

New Hampshire's State Anti-Discrimination Law, RSA 354-A, was originally derived from a variety of New Hampshire statutes enacted between 1965 and 1992 and was repealed and re-enacted as RSA 354-A in 1992. In 1992, RSA 354-A was amended to allow the award of compensatory damages. In addition, RSA 354-A was amended to prohibit discrimination based on sexual orientation in 1997. Finally, as of June 16, 2000, any party alleging to be aggrieved by a violation of RSA 354-A is entitled to bring a civil action for damages and/or injunctive relief in the superior court. This law prohibits employment discrimination on the basis of age, sex (including pregnancy), race, color, marital status, physical or mental disability, religious creed, national origin and sexual orientation.1 The law covers employers who employ six or more employees (currently excluding non-profits). In addition to our state anti-discrimination law, there are a number of federal civil rights laws which protect New Hampshire citizens from employment discrimination. See 42 U.S.C. 2000(e) et. seq. (Title VII), 42 U.S.C. 12101 et. seq. (Americans with Disabilities Act), 42 USC 1981.

This article is intended to describe the process of selecting an employment discrimination case, going through the required administrative process, filing in court, conducting discovery, and otherwise preparing for trial from a plaintiff's perspective.

Case Selection

One of the most difficult and most critical issues for a plaintiff's employment attorney is case selection. Most members of the general public have difficulty distinguishing between unpleasant work environments and unlawful practices. Therefore, an employment attorney is often faced with countless telephone calls describing "harassment" or a "mean boss" who created a "hostile environment." After discussing the issues, it usually becomes clear that most situations are not actionable; that is, they do not involve harassment based on age, sex, race, color, marital status, physical or mental disability, religious creed or national origin or sexual orientation. If there is no harassment based on one of these categories (or a whistleblower, wrongful discharge, or FMLA issue), there is not likely to be a case.

In addition, employment attorneys must be cautious in choosing cases that involve a resignation as opposed to a termination. The federal court, in particular, has outlined the strict guidelines for finding that a resignation is, in fact, a constructive discharge. See Asselin v. Waldron, CV-02-330-M (D.N.H. 1/13/04); Blackden v. Stanley et. al,. CV-02-475-M (D.N.H. 12/31/03). Without a constructive discharge or termination, a plaintiff cannot recover lost wages as an element of damages (although there could still be recovery for compensatory and punitive damages caused by a hostile environment). While it is often the case that an employment attorney can help an employee work through issues while he or she is still employed, these cases rarely end up providing enough in the form of damages to pursue through the full course of litigation.

Finally, a plaintiff's attorney must analyze the plaintiff's likelihood of finding comparable employment in the near future. Obviously, the plaintiff has an obligation to mitigate (i.e. search for comparable employment), but the plaintiff is often not able to find a comparable position for some time. This issue is a significant factor in the value of the case.

Beginning the Litigation Process

After selecting a case, an employment discrimination case must be filed at the New Hampshire Commission for Human Rights (HRC) or the Equal Employment Opportunity Commission (EEOC).2 In order to state a claim under New Hampshire's Anti-Discrimination Law, 354-A, a plaintiff must file at the New Hampshire Commission for Human Rights ("HRC") within 180 days after the alleged act of discrimination3. Although earlier acts may be included under a "continuing violation" theory, courts have interpreted this theory very narrowly. See Truax v. City of Portsmouth, CV-00-63-B (D.N.H. 6/18/01). For federal claims, a plaintiff generally has 300 days from the alleged act in which to file.4 However, if there is a colorable claim under state law, it is advisable to file at the HRC and ask that the HRC effect a dual filing with the EEOC. The benefit of a state law claim is that there are uncapped compensatory damages (which may include enhanced compensatory damages). See Jury Instructions given in Sweeney v. Allard Nazarian Group, Inc. d/b/a Granite State Manufacturing, 02-C-0843, (Hillsborough Cty. Sup. Ct., N. Dist. October, 2005). However, because claims under Title VII and 42 U.S.C. 1981 also include punitive damages, a plaintiff will most likely want to bring both state and federal claims. Therefore, because of the short statute of limitations for these types of claims, it is advisable to file the charge as soon as possible.

Choosing whom to sue is extremely important. For example, if a parent corporation or otherwise related entity is found to be a "single employer," there may be great value in naming both entities. See Penn Tech Papers, Inc. v. NLRB,

706 F.2d 18 (1st Cir. 193). First, one entity might lack the assets to satisfy a judgment. Second, including another entity may increase the cap on punitive damages (the cap under...

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