There are federal and state statutes prohibiting employment discrimination, including based upon race, or national origin, and firing an employee to protect him from the racial hatred of coworkers could result in a valid claim under those statutes but perhaps not under New Hampshire’s non-statutory wrongful discharge law as noted in the July 18, 2017 New Hampshire federal trial court decision of Pedro M. Florez Duran v. Environmental Soil Management, Inc. The statutory claims have a shorter period of time in which they may be brought compared to the non-statutory claims and those statutory claims need to filed first with the New Hampshire Commission for Human Rights or the Equal Employment Opportunity Commission so for some fired employees they may miss the time period to file their statutory claim leaving only a New Hampshire non-statutory wrongful discharge claim. Mr. Duran brought claims both under the employment discrimination statute and a state non-statutory wrongful discharge claim. The Court was asked to rule on the employer’s request for summary judgment in part on the non-statutory wrongful discharge claim and granted that judgment in favor of the employer and to leave the case to go forward on the federal employment discrimination statutory claims.
The Court noted in order to prevail on a non-statutory wrongful termination claim, the former employee must establish that he was fired out of bad faith, malice, or retaliation and because he performed acts which public policy would encourage or refused to perform acts which public policy would condemn. The Court noted that the evidence was clear that the manager of the employer who fired Duran did so out of concern for his safety. Even if the safety issues were because of the racial or national original animus of the coworkers, it would not be a firing due to bad faith, malice, or retaliation by Duran’s coworkers. The Court also found that the employer did not terminate Duran for performing acts which public policy would encourage or for refusing to perform acts which public policy would condemn. New Hampshire law is clear that you cannot establish a public policy element of the wrongful discharge claim based upon prohibition against discrimination under federal law. The Court noted that even if the manager’s termination decision discouraged future employees from reporting potential harassment or a safety violation, that firing is not because Duran performed acts which public policy would encourage or for refused to perform acts which public policy would condemn. Therefore his New Hampshire non-statutory wrongful discharge claim was dismissed leaving Duran to his federal statutory claims. The court has not determined whether those claims will win or lose but just that Duran has the right to a trial on those claims.
For employers facing a New Hampshire non-statutory wrongful discharge claim tied into an employment discrimination argument, the Duran decision may be a benefit as to that claim but not the statutory employment discrimination claims. To avoid being in the circumstance in the first place, employers should not fire employees because they are concerned for their safety because their coworkers are racists; the solution is for the employer to stop and prevent in the future racial harassment in the work place.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].