Public employers also receive guidance on ‘divisive concepts’ from Attorney General’s Office

This story was updated July 22, 2021 at 3 p.m. with information from the state Attorney General’s Office. 

In addition to guidance for school officials, the state Attorney General’s Office has also released advice for public employers on upholding the state’s new “divisive concepts” law during trainings. The public employer guidance says the new law does not contain the same prohibitions as the original “divisive concepts” bill that did not pass, but the language is largely the same.

And, neither guidance document says how complaints to state agencies will be investigated or evaluated.

Like the guidance for educators, the question-and-answer sheet for public employers clarifies what can and can’t be included in training, who’s covered under the new law, and where complaints should be filed. 

The new law, passed as part of the state budget, prohibits employers and government programs, like educators, from advocating that one group of people is inherently racist, superior, or inferior to people of another group. “Train and treat all equally and without discrimination,” the Attorney General’s Office advised.

Trainings and programs can still include “issues related to equity, diversity, inclusion, equality, and other related topics,” the Attorney General’s Office said. They can state that “practices or ideas . . . may disproportionately affect certain identified groups.” The trainings can also include implicit bias training aimed at “teaching people about biases they may have of which they are not consciously aware and helping them become aware of those biases so as to encourage treating others with dignity and respect and to avoid treating others less than equally.”

Employers and government programs can still “provide and require sensitivity training based on the “inherent humanity and equality of all persons” and the “ideal that all persons are entitled to be treated with equality, dignity, and respect,” the guidance said.

The Attorney General’s Office stated in its guidance that the law that passed does not include the prohibitions in House Bill 544, the inspiration for the budget provision. The phrase “divisive concepts” was removed, however the two are more similar than different. 

HB 544 and the new law both included the prohibitions listed above. The law that passed does not contain HB 544’s prohibition against teaching or training that “meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.” Nor does the new law say trainings cannot argue that “an individual’s moral character is necessarily determined by his or her race or sex.”

Public employees can refuse to participate in trainings and cannot be fired, warned, or disciplined for doing so. The new law does not apply to private individuals or groups using public buildings, such as schools. 

Complaints against educators and public employers can be filed with New Hampshire Commission for Human Rights, the Attorney General’s Office, or brought in a lawsuit in superior court.

The law says educators who violate the law can face disciplinary sanctions from the State Board of Education but does not say what penalties public employers could face. 

Kate Giaquinto, spokeswoman for the Attorney General’s Office, said complaints will be reviewed by the office’s Civil Rights Unit. “The unit reviews every complaint to determine what next steps may be necessary and whether the complaint alleges a potential violation of either the New Hampshire Law Against Discrimination, RSA Chapter 354-A, or the New Hampshire Civil Rights Act, RSA Chapter 354-B,” she said in an email. “Not every complaint alleges violations of either law or rises to the level of prosecution. In many cases, additional investigatory steps may be taken and other appropriate remedies may be sought including referral to the New Hampshire Commission for Human Rights or other agencies.”