When the owner of a Nashua diner offered to pay a waitress to perform sexual favors, she went to his son, who also worked in the business, for help. The son assured her it would not happen again and even added, if she didn’t take legal action, she would not have to work with the father again.
Many readers already know how these stories unfold. Shortly thereafter, the woman was suspended for two weeks for not cleaning the bathrooms properly. When she returned to work, the father slapped her butt, and, when she complained, he pressed his groin against her. She again reported the incident to the son. Within days, she was fired.
She filed a complaint with the NH Commission for Human Rights, which investigated and found probable cause and held a public hearing on the sexual harassment retaliation complaint—one of the few cases to reach that stage in NH as many are withdrawn, settled out of court or mediated out of court. At the hearing, she described the effect the harassment had on her. She began changing her appearance—wearing sweatpants, loose clothing and going without makeup—so as not to attract attention, according to commission records. After she was fired, she became depressed, finding it difficult to get out of bed. In March 2016, the commission ordered the diner to pay its former employee $23,000 in lost wages and compensatory damages, as well as a $10,000 fine to the State of NH’s general fund.
While the number of sexual assault complaints filed with the commission is between 40 and 46 annually since FY 2013, complaints that receive a public hearing are far and few between—only one to three annually in that same time frame. (See chart.) And the last case cited on the commission’s website, prior to 2016, was in 2010.
Roxanne Juliano, assistant director of the NH Human Rights Commission, says the number of 2017 sexual harassment complaints is slightly down from previous years, though she adds, “[Reporters] every day are calling us about this.”
Nationally, complaints dipped until recently. Per the Equal Employment Opportunity Commission, sexual harassment grievances declined between FY 2010 and FY 2016, from 7,994 to 6,758.
In FY 2016, of the 7,433 sexual harassment claims resolved by the EEOC (many of which had been filed in previous years), 54 percent were found to have no reasonable cause and almost 23 percent were closed for administrative reasons, such as being unable to locate or communicate with the complainant, closed due to the outcome of related litigation, or the EEOC had no statutory jurisdiction.
The 23 percent that were resolved favored the plaintiff, and that includes negotiated settlements.
What’s Behind the Numbers?
Juliano says there are many reasons why complaints don’t make it to the hearing stage. “Some people withdraw a charge, some parties settle. Sometimes we find no jurisdiction,” she says as the commission can only investigate complaints involving businesses with six or more employees and that have been filed within 180 days of the incident. She points out that some complaints filed with the commission are also filed with the EEOC, which investigates those complaints against businesses with at least 15 employees. Some complainants opt to take their cases to court. In fact, Juliano says, six sexual harassment claims in 2016 were transferred to the court system, and 10 were settled through the NH commission. For 2017, 10 sexual harassment cases had been settled as of November 2017. Juliano points out some cases go through a free and voluntary mediation program provided by the commission.
Depending on the complexity of a case, investigations can take anywhere from a few months to more than a year. And sexual harassment is just a portion of the complaints, which also cover discrimination for disability, age, race, sex, religion and sexual orientation that the commission handles.
During the year, the commission may handle 300 to 350 cases, and they do so with a staff of just four full-time investigators, a part-time investigator, a director, an assistant director and a one and half admin positions. Juliano says the commission used to have six full-time investigators until its budget was cut. “That has impacted our ability to expediently investigate cases.”
She says it can take months before a case is assigned to an investigator, and an investigation can sometimes take up to two years. By statute, the commission needs to complete a case within 24 months.
Investigators also handle the initial intake of complaints. If someone wants to bring a charge, those charges have to be drafted, and the commission’s staff drafts half to three-quarters of those complaints.
Adding to the challenge, Juliano says the agency has experienced attrition, which means additional time is needed to hire and then train new employees.
And, while the commission used to provide trainings for companies and organizations to prevent discrimination and harassment, Juliano says it is unable to conduct as many trainings and outreach due to the lack of resources.
None of this should dissuade people from filing complaints, Juliano says, noting the commission works diligently. But, she adds, with more resources, cases could be resolved quicker, witnesses would be more available with recollections more recent, and would likely lead to lower damages as people would not lose wages for as long a period of time. “It can be a better scenario if investigations are contained to a year,” Juliano says.
Filing With the NH Commission for Human Rights
• A charge must be filed within 180 days of the last date of discrimination. (Under certain circumstances, a charge may be filed up to 300 days from the date of alleged discrimination.)
• There is no fee to file a charge.
Procedure After Filing
• A copy of the charge is sent to the respondent for a written response.
• An investigator is assigned to the case and begins an impartial investigation of the charge.
• If the complainant decides during the investigation that he or she does not want the investigation to be completed, the complainant may withdraw the charge without prejudice.
• Throughout the investigation, the commission encourages both parties to consider how they might be willing to resolve the case. The investigator can assist the parties with settlement discussions. The commission also offers voluntary mediation at no cost.
• Parties are required to provide relevant information to the investigator when requested.
• If the case cannot be resolved, the investigator completes the investigation and prepares a report. There are seven volunteer commissioners that can receive those reports. The assigned investigating commissioner will make a decision of either probable cause or no probable cause. The parties are sent a copy of the investigative report.
• If there is a finding of probable cause, a public hearing will be scheduled.
• Prior to the public hearing, the commission will attempt to conciliate the case. The parties can decide to remove the case to court. If the commission hears the case, it goes before three commissioners and a decision is issued either finding in favor of the charging party and ordering appropriate relief, or finding in favor of the responding party and dismissing the charge.
• Either party can appeal the commission’s decision to Superior Court. A complainant, at any time, can remove a case to Superior Court or request the right to sue in federal court. A company can take it to state Superior Court only after probable cause.
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