Revision: Jan. 30, 2018, 11:05 a.m.
SB 558-FN - AS INTRODUCED
SENATE BILL 558-FN
AN ACT relative to discrimination based on pregnancy or lactation.
SPONSORS: Sen. Fuller Clark, Dist 21; Sen. Hennessey, Dist 5; Sen. Lasky, Dist 13; Rep. McBeath, Rock. 26; Rep. Rosenwald, Hills. 30; Rep. Butler, Carr. 7; Rep. Cahill, Rock. 17; Rep. Umberger, Carr. 2
This bill creates a cause of action for a person who believes she has been discriminated against by an employer for breast-feeding.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
(d) For any employer not to make reasonable accommodations for an employee who is breast-feeding.
132:10-d Breast-feeding. Breast-feeding a child does not constitute an act of indecent exposure and to restrict or limit the right of a mother to breast-feed her child is discriminatory. A person who believes her right to breast-feed her child has been violated may file a discrimination claim with the state commission for human rights under RSA 354-A, or for protection under RSA 275-E, or may seek immediate injunctive relief in district or superior court.
SB 558-FN- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill would provide that a person who believes her right to breast-feed her child has been violated may file a discrimination claim under RSA 354-A, seek protection under RSA 275-E, or may seek immediate injunctive relief in the district or superior court.
The Judicial Branch indicates enforcement of discriminatory practices under RSA 354-A:7 is by the Human Right Commission; however, pursuant to RSA 354-A:22, any person aggrieved by an order of the Human Rights Commission may appeal that order to the superior court. The Branch has no information on how many such appeals would be filed, but does have information on the cost of such appeals. Such an appeal would be classified as a complex equity case in the superior court. The cost of an average complex equity case in the superior court will be $740 in FY 2019 and $746 in FY 2020. Under RSA 275-E, the Whistleblowers’ Protection Act, an aggrieved employee has a right to bring a civil suit for violation of that section. An aggrieved employee also has the right to a hearing before the Commissioner of Labor or designee. Decisions of the Commissioner can be appealed to the Supreme Court which has discretionary review of such appeals. The Branch has no information on how many additional civil actions would be filed or how many administrative appeals may arise as a result of the proposed bill. The civil suit would be classified as a complex civil case in the superior court. The estimated cost of an average complex civil case in the superior court is $737 in FY 2019 and $745 in FY 2020. The administrative appeals are too speculative to arrive at a conclusion regarding the fiscal impact. The Branch indicates even one appeal accepted for full appellate consideration could cost in excess of $10,000. Regarding claims for injunctive relief, the Branch has no information on how many such claims would be filed, but indicates such claims would also be classified as complex equity cases in the superior court. It should be noted that average case cost estimates for FY 2019 and FY 2020 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Department of Labor indicates there would be no increase in revenues or expenditures to the Department because the Department already has an existing process for whistle blowers cases to be adjudicated.
The Human Rights Commission indicates this bill would expressly authorize the Commission to hear and resolve charges brought by individuals who believe their breast-feeding rights have been violated. The Commission states the bill does not establish any new rights or expand existing rights, but clarifies the availability administrative and judicial forums for protection of rights. The Commission has been accepting and resolving breast-feeding discrimination charges for many year under their existing jurisdiction, which defines discrimination on the basis of sex to include pregnancy and medical conditions which result from pregnancy. The Commission indicates, because the bill does not impose any new requirements on the commission, it would not have a material impact on the Commission’s revenues or expenditures.
The Department of Justice would need to provide legal advice to state agencies, boards and commissions with respect to their legal obligations under the law. The Department anticipates this could be done within the current budget. In the event a discrimination lawsuit was filed against a state entity, the Department of Justice would be responsible for defending the case. The Department cannot estimate the number or complexity of such lawsuits so the impact on state expenditures is indeterminable.
The Judicial Council assumes because the causes of action available are all civil in nature, there would be no impact on indigent defense expenditures.
The New Hampshire Association of Counties does not anticipate this bill would have any impact on county revenues or expenditures.
The Department of Corrections states this bill would have no fiscal impact on the Department because the penalty for violation is a misdemeanor and terms of incarceration for such offenses are served at county correctional facilities.
Judicial Branch, Human Rights Commission, Departments of Labor, Corrections and Justice, Judicial Council and New Hampshire Association of Counties