Petition for Writ of Certiorari — Bosselait v. New Hampshire Department of Employment Security

p

88 “8 B82

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

Albert and Edward Bosselait, Petitioners

v.

State of _ ne Oe — of

ent

and moulds Picen Comer. ndents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW HAMPSHIRE

Bruce E. Friedman Richard Hesse

Civil Practice Clinic Franklin Pierce Law

2 White Street Center

Concord, NH 033501 2 White Street

603-225-3350 Concord, NH 03301

603-228-1541

Counsel for Petitioner Counsel of Record

i.

QUESTIONS PRESENTED

I. Did the Supreme Court of New Hampshire err

when it said two uncounseled elderly and laid-off

janitors had not adequately preserved their Federal

claims (at a nonjudicial unemployment

compensation tribunal powerless to rule on the

issues) when they argued the law was

“discriminating against them” and "can always be

fixed” instead of explicitly citing 29 U.S.C.§791 and

the equal protection clause of the Fourteenth

Amendment?

Il. Does the N.H. unemployment compensation

statute discriminate in violation of the Federal

Rehabilitation Act, 29 U.S.C.§794 insofar as it

denies unemployment benefits to two laid off

janitors otherwise eligible for benefits who cannot

work full time because of their health and

handicaps at their ages (of 76 and 79)?

Il. Does the equal protection clause guarantee two

laid off part-time janitors, who have worked their

entire lives, and other partially disabled workers

an opportunity for an individualized determination

of availability and attachment to the labor market,

as required by Turner v. Department of Empl. Sec.

423 U.S. 44 (1975) and as afforded all other New

Hampshire unemployment compensation claimants?

ii

TABLE OF CONTENTS |

QUESTIONS PRESENTED. ....cccccccccesesesesescseseersveeseees i |

TABLE OF CONTENTS. .......ccccccccceseeceseeveces =e ii |

TABLE OF AUTHORITIES. ....ccccceccsescscerseesereereesvsvers iii |

PITITION,.. «riers: enesstsnddecersimmedaeenlaaaaaaaaiae 1

OPINION BELOW...) Soy a nec ieee 2 |

Bip Ss 8: 6 LEE EL LD I 3 :

STATUTES AND CONSTITUTIONAL .

PROVISIONS INVOLVED.....ccccccscececosessecevsrerenenee 3

STATEMENT GP THEE Ge ciccicescacccciccsccscccccsccesees 4 |

How The Federal Questions Were .

PreSOQit.. ........00.seonsngkee aan eanmneannNNebteebeontesiabes 6

REASONS FOR GRANTING THE PETITION.............. 12

I. PROTECTION OF FEDERAL RIGHTS (AND |

PRESENTATION OF FEDERAL QUESTIONS) |

SHOULD NOT DEPEND ON MEANINGLESS

FORMALISM AND UNNECESSARY

FORMAL SEIS cscs cae ae onecen onco core 12

II]. THIS CASE RAISES IMPORTANT AND ;

UNRESOLVED ISSUES CONCERNING

WHO §504 PROTECTS AND WHAT

PROTECTION IT OFFERS; THE DECISION

BELOW CLASHES WITH PRECEDENT

AND NARROWS THE LAW'S

iii

itl. THIS CASE PROVIDES AN OPPORTUNITY

TO CLARIFY THE APPLICATION OF

FOURTEENTH AMENDMENT CASES

FROM TURNER TO CLEBURNE......................... 22

NE 25

APPENDICES

A. Appee! Tribune! Decision....................... A-1

B. Appellete Division Decision................... A-3

C. New Hampshire Supreme Court

EE EE a ok ae oe A-11

D. New Hampshire Supreme Court Denial of

RECONSIGETOLION 0... ccccccceecceneee A-32

E. Questions Presented in Bosseleits

Petition to New Hampshire

TABLE OF AUTHORITIES

Constitutional Provisions

Fourteenth Amendment, United States

ee i,3,5,6,8,9,

10,11

Statutes and Regulations

RG, ROR, AER 3

RSA 282-A:31,

Pe iadintidiictihi dh Anbish decieccissssoncscboccostoonsed 45

29 U.S.C. §794,

8504 of the Rehabilitation Act....... i,4,5,6,9,10,

14,15,16,18,20

29 C.F.R.

Rl acecduteatsnsxesaésXancstelerasteadanatekeledeemmene 9,16,17,18

Cases

Alexander v. Choate 469 U.S.287(1985)............. 20

Appeal of Gallant 125 N.H. 83(1984)................. 13

Berlinguette v. Stanton 120 N.H. 760(1980)....... 14

Davis v. Wechler 263 U.S. 22(1923)..........0.0000... 13

Eddings v. Oklahoma 455 U.S. 104(1982)............ ll

Henry v. Mississippi 379 U.S. 443(1965)....... 12,13

NAACP vy. Alabama 357 U.S. 449(1958)......... 12,13

Raley v. Ohio 360 U.S. 423(1959)....00.00. 6,12

s

Vv

School Board of Nassau County v.

Arline 0S, _.107 S.Ct. 1123,(1987).......... 17,18

Southeastern Community College v.

Davis 442 U.S. 397(1979)...........cccccccecceeeeeeeee 10

Staub v. City of Baxley 355 U.S.

PR race ed, ons crete thaileccceccecsccccesseees 14

Strathie v. D ) of T tat

716 F.2d 227 Srd Cir. (1983)...........cecereeenees 19

EF Ae DUR M e WD Peoceccdescesnsssepresasescevesccocoee 22,25

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

Albert and Edward Bosselait, Petitioners

Vv.

ote Se ee =

and Spaulding Youth Center, Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW HAMPSHIRE

“Bilt ¥ae) 45

STIPREME COURT OF ! °F.

Petitioners, Albert and Edward Bosselait,

respectfully pray that a Writ of Certiorari issue to

review the judgment of the Supreme Court of New

Hampshire, entered July 29, 1988, when the Court

denied a rehearing of its decision and opinion of

duly 8, 1988, which affirmed the denial of

petitioners’ claim for unemployment compensation

benefits.

OPINION BELOW

The decision of the Appeal Tribunal! is

attached as Appendix A. The decision of the

Appellate Division is attached as Appendix B. The

decision of the New Hampshire Supreme Court

(Souter, J.) is unreported and is attached hereto as

Appendix C.

3.

JURISDICTION

After the decision of the New Hampshire

Supreme Court dated July 8, 1988, petitioner

timely moved for a rehearing, which was denied

by order dated July 29, 1988, attached as

Appendix D.

This Court's jurisdiction is invoked pursuant

to 28 U.S.C.§1257(3). As the issue of this Court's

jurisdiction is entwined with the first Question

Presented, the Statement of the Case elaborates on

the manner in which petitioners’ claims were

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29 U.S.C.§794(Sapp. 1987) Nondiscrimination under

Federal panied programs; promulgation of rules

No otherwise qualified individual with

handicaps...shall, solely by reason of his handicap,

be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination

under or recei Federal

mh te rat ving

N RSA 282-A:31,1(d) Benefit

ew Hampshire yl

1. An unemployed individual shall be

eligible to receive benefits with respect to any

week only if the Commissiner finds that:

(d) He is available for and seeking

permanent, full-time work for which he is

qualified.

STATEMENT OF THE CASE

Edward and Albert Bosselait - now ages 78

and 8] - worked their entire lives. In addition to

their regular full-time employment, they started

sharing another full-time job as janitors at

Spaulding Youth Center in Tilton, New Hampshire

in 1964 by each working 4 hours per day. After

retiring from their full-time jobs in the mid

1970's, Albert and Edward continued at

Spaulding until they and some 30 full-time

workers were laid off in 1986 through no fault of

their own.

5.

The other laid-off workers - at least those

able to work a full day but unable to find work-

could obtain unemployment benefits based on

their wages in the previous year. The Bosselaits -

unable to any longer do manual labor for a full

day, but fully able to do many part-time janitoria)

jobs - were denied unemployment benefits

because of their inability to work a full day

because of their physical handicaps at their age.

This case challenges the state imposed

discrimination in RSA 282-A:31,I(d) that denies to

the Bosselaits (and others with physica] or mental

handicaps which limit their hours of work ) what

all other laid off workers in New Hampshire are

entitled to: an oportunity to show that there is a

labor market for the services they offer.

Since their initial hearing over two years

ago, the Bosselaits have challenged this law

“discriminating against” them. [Transcript of

Appea) Tribunal, in Certified Record before the

New Hampshire Supreme Court, page 49;

hereinafter R). They contend that such

discrimination is violative of the Federal law

prohibiting discrimination against the handicapped

in federally assisted programs (29 U.S.C.8794;

8504 of the Rehabilitation Act) and the equal

protection clause of the Fourteenth Amendment.

Although the New Hampshire Supreme Court

Opinion states that "[njot one of these issues ...

6.

has been ... timely raised below", Appendix C at

page A-15 it went on to discuss and, in essence,

pass on the §504 claim at length, id pages A

19-25. Similarly, the equal protection claim is

also discussed and in essence, passed on, at

length, id. pages A 25-31. Under this Court's line

of cases that hold "[t]) here can be no question as

to the proper presentation of a federa) claim

when the highest state court passes on it", Raley

v. Ohio, 360 U.S. 423, 436-7(1959), this Court has

jurisdiction to hear these claims. But, as the

Supreme Court of New Hampshire's opinion also

indicates that the issues were not properly

raised, it is necessary to elaborate on how the

Federal claims were presented and preserved

throughout these proceedings.

The Record indicates as follows:

1. In July 1986, the Bosselaits applied for

unemployment compensation benefits when they

were laid off through no fault of their own, were

looking for work, and had no restrictions except

that their health foreclosed full-time manual

labor.

_ @. In forms provided by the Department,

Albert indicated he had “physical handicaps” of a

7.

"weak back” and was “limited” to "20 hours a

week” (R 115B and R112); and Edward

indicated “physical handicaps” of “partial

eyesight, angina” (RO5B).

3. They were denied benefits on July 9,

1986 by a certifying officer because "New

Hampshire Unemployment Compensation law

requires that an individual be available for and

seeking permanent full-time work for which he is

qualified..." (R100). They had two weeks to

appeal and did so.

4. On July 350, 1986 they appeared

unrepresented by an attorney (and accompanied

by their state representative) before the Appeals

Tribunal, which had the information about their

handicaps. At the hearing, there was no mistake

about the nature of the Bosselaits' claims or about

their inability to work a full day.

[The Chairman]: "Now you're saying that the

whole crutch [sic] of the matter is than [sic]

you're saying you cannot work more than

four hours a day?" (R 48) (emphasis added)

Albert: “That sounds right...I'm seventy-six

and he's seventy-nine.”

Edward: "I'm seventy-nine and I'm not

gonna play with my health...You think

because we don't want to work. [R49]

Demers [Chairman]. No, No.

[a discussion of the law requiring a search

E for full-time work ensued and Edward said]

"I think that it's discriminating against old

‘ fellas... we think that... the law is the law.

It can always be fixed.” (Emphasis added)

Chairman Demers “I hope you realize we

have no control about the law”. (R50)

i 5. The Appeal Tribunal, a lay body without

; judicial authority, ruled against the Petitioners on

: August 20, 1986, their claim.

i

through counsel, also sought to have the

Commissioner of the Department of Employment

Security reopen alleging that the full-time

requirement “conflict(s) with the state and Federal

3 |

~ constitutional and statutory requirements

prohibiting discrimination against these groups”

lincluding the “working handicapped"). (R81) and :

cited the “equal protection clause of the United |

States Constitution” (R80).

8. Neither the Appellate Division nor the

Commissioner responded favorably because each

considered these requests untimely and an initial

appeal to the New Hampshire Supreme Court was :

taken. That appeal led to a December 11, 1986 per :

curiam Supreme Court opinion "remandling} to the

appellate division...for a hearing on the merits of

appellants’ claims”. [R56].

9. At the hearing before the Appellate

Division - an administrative body empowered to

decide legal and constitutional issues - the

Bosselaits argued at length that the "full-time

requirement” violated the "Federal Constitutional ,

Right to Equal Protection” (R25-R36) and “adoptied) |

and incorporate(d] the lengthy brief of the :

Developmenta! Disabilities Advocacy Center, an |

amicus, "on the issues under §504 of the

Rehabilitation Act of 1973" and "29 C.F.R. 32 of

discrimination against the handicapped". (R29)

10. The Appellate Division ruled against the

Bosselaits on April 27, 1987, deciding both the

statutory and constitutional issues (A 3-9) citing

two of this Court's §504 cases.

i a —_— a

10.

ll. A Motion to Reconsider by the Bosselaits

ea ei i gp

397(1979) and pointing out b that

Given the other ways to test for a labor

market, the full-time requirement acts as a

barrier akin to wheel chair inaccessible

buildings and is illegal. (R5)

; and again a violation “of equa!

: protection of ws". R6.

12. The Bosselaits next filed a Petition for

; Appeal with the New Hampshire Supreme Court

explicitly raising the issues of whether the full-time

requirement violated “federal law and/or...federal

constitutional guarantees of due process and equal

protection” (see Appendix A-33) in their Questions

Presented, and also explicitly cited "Section 504 of

the Federal Rehabilitation Act” in their Summary of

Claims. Nevertheless, the New Hampshire

Supreme Court said the "federal statutory issues

[were not included and] were thus waived".

Appeal of Albert and Edward Bosselait Appendix C

A -16.

13. Petitioners’ Brief in the Supreme Court

, included several pages and a heading concerning

: 8504, and eleven pages on equal protection analysis

and argument. Their 235 page Reply Brief dealt

primarily with whether the Bosselaits were

11.

considered handicapped and §504 and equal

protection.

Notwithstanding this flood of Federal

questions raised by the Bosselaits throughout these

proceedings, the New Hampshire Supreme Court

Opinion advances the startling proposition that the

Bosselaits, appearing pro ge, should have made

what amounts to a “citation to book and verse”

Eddings v. Oklahoma 455 U.S. 104,113-14 n.9, of

the basis of their claims before the layperson

Appeal Tribunal (which was powerless to consider

their claims). See Appendix C at page A-16.

The New Hampshire Supreme Court's

opinion - after apparently finding that the Federal

issues had not been raised appropriately - then

discussed (and arguably decided) them at great

length.

In their Motion to Reconsider to the New

Hampshire Supreme Court, dated July 18, 1988,

the Bosselaits pointed out that the holding was

contrary to §504 and to Federal] cases concerning

exhaustion and futility. The Motion also contended

that the "...Court's failure to reach or remand on

the §504 issue is itself a violation of Federal law”.

The Bosselaits again raised their equal] protection

claim.

PRESENTATION OF FEDERAL

If, as in Raley. supra., the New Hampshire

Supreme Court's detailed discussion of the Federal

issues is not sufficient to confer jurisdiction on this

Court, this Court should review the case to

reaffirm the principle that a state court cannot

deprive this Court of jurisdiction of important

Federal questions by claiming noncompliance with

state procedural rules. CF. Henry v. Mississippi,

379 U.S. 443,447, 85 S. Ct. 564,567(1965).

Petitioners acknowledge that review is

inappropriate if the decision below rests on an

independent and adequate state ground, but a state

procedural ground which departs radically from

past state court practice cannot be an independent

basis for foreclosing review. This Court has held

that “[njovelty in procedural requirements cannot

be permitted to thwart review in this court applied

for by those who, in justified reliance upon prior

decisions, seek vindication in state courts of their

federal constitutional rights..." NAACP v. Alabama.

557 U.S. 449, 457-8 (1958).

13.

Further, "[wJhatever springs the State may set for

those who are endeavoring to assert rights that the

State confers, the assertion of federal rights, when

plainly and reasonably made, is not to be defeated

under the name of local practice." Davis v.

Wechler, 263 U.S. 22,24, (1923). Therefore, the

New Hampshire Supreme Court's apparent holding

that the petitioners failed to raise federal statutory

issues in their appeal petition and in the “trial”

forum of the appeal tribunal] should be no more

insulated from review than the decisions in Henry,

NAACP. and Davis.

As the discussion in the Section "How the

Federa] Claims Were Raised” makes clear, not only

did the New Hampshire Supreme Court simply err

about what was in the Questions Presented to it,

(Appendix E hereto) but it imposed an

unprecedented and unjustified burden on lay

people appearing before an administrative tribunal

on 3 weeks notice.

Unlike its previous holdings that appeals in

unemployment compensation cases “should be

simple, prompt, and non-legalistic”..., Appeal of

Gallant, 125 N.H. 83(1984), the Supreme Court

said that the Bosselaits waived their claims

because they failed to cite at the Appeal Tribunal

the section of Federal] law that supported their

unambiguous claim that the full-time requirement

of the law was “discriminating against” them.

ee aa ee eee ee

14.

Other than blocking this Court's review of the

Federal questions, there is no discernable

explanation or rationale for the the New

Hampshire Supreme Court requiring more of lay

people involved in a rapid fire administrative

proceeding than of lawyers involved in drawn out

litigation. By contrast to the burden placed on and

the barrier placed in front of the Bosselaits by its

holding, the New Hampshire Supreme Court has

said: “It is probably no exaggeration to say that in

no state is pleading treated more liberally [to aid in

the promotion of justice] and regarded less of a

game..." _Berlinguette v. Stanton, 120 N.H. 760,

762,423 A.2d 289(1980).

Because it is clear from the transcript that

the Appea] Tribunal understood the nature of the

Bosselaits' challenge, for the New Hampshire

Supreme Court to insist that in order to preserve

their federal statutory claim under the

Rehabilitation Act, 29 USC 8791, the petitioners

should have cited to the statute specifically is to

“force resort to an arid ritual of meaningless form."

Staub vy. City of Baxley, 355 U.S. 313,320(1958).

This is especially true as the administrative

tribunal both understood the Bosselaits were

challenging discrimination in the law and correctly

regarded itself as having “no control about the law”

(R50). While an important state interest in

15.

enforcing a procedural rule may bar vindication of

important federal rights, in this case there is no

legitimate state interest to be gained from insisting

on formal legal pleadings at the appeal! tribunal.

If the New Hampshire Supreme Court's

decision is allowed to go unreviewed,this Court will

send an ominous signal to it and other courts that

important Federal questions can be avoided by

insistence on lay people fulfilling legalistic gestures

in a forum where such gestures would be futile.

Il. THIS CASE RAISES IMPORTANT AND

UNRESOLVED ISSUES CONCERNING WHO

PROTECTS AND WHAT PROTECTION IT

THE DECISION BELOW CLASHES WITH PRECEDENT

AND NARROWS THE LAW'S REACH.

(A) Do Unemployment Programs Have To

Make Adjustments Similar to Employment

Programs?

Section 504, 29 U.S.C. §794 embodies this

Nation's overdue and noble efforts to treat the

handicapped fairly and remove artificial barriers

from their participation in society - or at least in

federally supported programs.

The law requires “reasonable accomodation”

be made for “otherwise qualified” but handicapped

individuals. With Federally supported employment

programs, one of the examples given by the

Secretary of Labor of such a reasonable

accomodation is “part-time or modified work

16.

schedules” 29 C.F.R §32.5. The Bosselaits ask the

simple but important question: Does the same law

require a similar reasonable accomodation in New

Hampshire's federally supported unemployment

program?

The answer to that question is of great

concern to those states - a majority by the

Department of Employment Security's count -

which deny benefits to workers who can only work

part-time. Even before the country hits its next

economic downturn, the answer is important for

the part-time worker limited by his or her

handicap to less than 8 hours work per day. Such

workers are the ones who are often laid off first -

and under the New Hampshire Supreme Court's

decision, such layoffs are encouraged, because they

can be done with no effect on the employer's tax

rate.

(B) Who is"Handicapped"?

In addition, this case cries out for review

because of the New Hampshire Supreme Court's

handling of the question of whether or not the

Bosselaits are entitled to be considered

handicapped in order to rceive any protection

under §504. For the Appeal Tribunal, the only

fact-finder in this case, the matter was simple:

17.

"...the whole crutch [sic] of the matter is

than [sic] you're saying you cannot work

more than four hours & day? jempahsis

The Appeal Tribunal accepted the Bosselaits

oral and written representations about physical

limitations at their age and ruled against them

because they could not meet the full-time

requirement at issue.

Yet, the New Hampshire Supreme Court

Opinion concludes “that if the plantiffs were unable

to satisfy the full-time work requirement, the

reason was not a handicap, but the plaintiffs’ ages”.

Appea] of Albert and Edward Bosselait Appendix C

hereto, at p. A-22.

It is difficult to square the New Hampshire

Supreme Court's concept of a handicapped

individual with: (a) the facts of this case; (b) the

definitions of a handicapped individual in the

Rehabilitation Act and in the Regulations pertaining

to the unemployment program in 29 C.F.R.832.3;

and the discussion in School Board of Nassau

County v. Arline, 107 S.Ct 1123. -

The Rehabilitation Act covers:

“alee posemn. who. @) bee 2. Bhaical or

mental impairment which substantially limits

one or more of such person's major life

activities, Ot ieee peeentiel aach'en

impairment or (ii) is regarded as haivng

18.

The implementing regulation should have left

little question that the Bosselaits were

“handicapped”:

(a) Handica individual means any

person who [hjas a physical or mental

impairment which substantially limits one or

more major life activities",

where major life activities are defined as:

",..functions such as caring for one's self,

performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning,

, and rcei education or vocation

training.” 29 C.F.R. 832.3 (emphasis added).

In Arline, supra, where the Court determined

that the effects of a contagious condition on the

associates of the plaintiff were sufficient to confer

a handicap, this Court interpreted Congress’ intent

as to provide a broad definition of “handicapped

individual".

The New Hampshire Supreme Court's

decision flies in the face of such intent. Are those

individuals near eighty years of age to be denied

the protection of §504 when their health fails them

specifically because they are nearly eighty?

(C) What is a "Reasonable Accomodation"?

A handicapped individual who cannot meet

all of a program's requirements is not otherwise

qualified if there is a factual basis in the record

reasonably demonstrating that accomodating that

19.

individual would require either a modification of

the essential] nature of the program, or impose an

undue burden on the recipient of federa) funds.

Strathie v. Department of Transportation, 716 F.2d

227 (3rd Cir. 1983).

There can be no basis for arguing that

paying unemployment compensation to workers

seeking part time work would frustrate the purpose

of the program. Consequently a refusal to modify

the program must be justified by its causing an

undue burden on the State.

New Hampshire provided unemployment

compensation to part time workers for the first 40

years that the program existed. The law was

amended to include the “full-time” language in

1977. Many other states provide unemployment

compensation to part time workers. It does indeed

seem likely that requiring the State, once again, to

pay compensation to handicapped part time

workers is a reasonable accomodation. This is

especially true because the part-time worker's

wages are fully taxed to support the system and

any burden on the unemployment fund can be

negated by adjusting benefits to all workers. This

Court should decide if Congress intended such

adjustments.

A last §504 issue of importance is whether a

federally supported benefit program can create a

complete bar to a worker whose physical

limitations prevent full time work. In Alexander v.

Choate, 469 U.S. 287(1985), the Court addressed a

question which, while perhaps appearing similar to

the Bosselait case, differed critically. The plaintiffs

in Alexander were in no way precluded from

participation in the program as administered by the

State of Tennessee. Rather the plaintiffs merely

wanted the program expanded to more completely

fulfill their needs. The Bosselait case reaches the

issue left unanswered by Alexander.

In Alexander, Justice Marshall articulated

the two countervailing considerations that must be

employed in determining whether there has been a

breach of the Rehabilitation Act. A State must try

to meet the objectives of the Act while keeping it

within manageable bounds. Id at 299. With regard

to the objectives of the Act, it is now established

that Congress intended to reach beyond invidious

discrimination into acts and actions that merely

have a “disparate impact” on handicapped

individuals. Id at 295-296. Further, the Court held

that a benefit, “cannot be defined in a way that

y

effectively denies otherwise qualified handicapped

individuals the meaningful access to which they

are entitled”. Id at 301.

The full time requirement in the New

Hampshire statute does have a disparate impact on

the class of which petitioners are members. And it

does effectively deny meaningful access to

"otherwise qualified individuals”. While the

statute precludes from participation those who,

because of other demands on their time or simply

out of preference, do not seek full time work, it

alsoshas the effect of precluding those who,

because of some "physical or mental impairment

which substantially limits one or more of such

person's major life activities". are unable to work

full time. An individual without a handicap may

qualify for unemployment compensation by simply

agreeing to accept full time work, irrespective of

whether his past employment has been full time or

parttime. This opportunity is not similarly

available to many handicapped individuals, such as

the Bosselaits, whose handicaps prevent them

from doing so. This, by definition, is a disparate

impact

The implications of this issue extend much

further than simply to those individuals who,

because of the disabilities accompanying age,

cannot work a full day. There are a multitude of

physical or mental disabilities that limit an

individual's ability to work an eight hour day.

22.

Chemotherapy, sickle cell anemia, chronic fatigue

syndrome, heart disease, dialysis treatment,

arthritis, AIDS and AIDS Related Complex,

emphysema, multiple sclerosis and a myriad of

other disabilities and treatments may limit an

individual's endurance and availability for ful] time

employment. Yet, by the very wording of the New

Hampshire statute and the holding below, these

individuals are automatically excluded from

participation in the unemployment compensation

program.

Ill. THIS CASE PROVIDES AN OPPORTUNITY TO

CLARIFY THE APPLICATION OF FOURTEENTH

AMENDMENT CASES FROM TURNER TO

CLEBURNE.

"The Fourteenth Amendment requires that

unemployment compensation boards no less

than school boards must achieve legitimate

state ends through more individualized

ror when basic human liberties are at

e".

Security, 423 U.S. 44,46 (1975).

In Turner, this Court invalidated without oral

argument Utah's disqualification for unemployment

benefits for women who were otherwise eligible

but were presumed “ ‘unable to work’ during [an]

18-week period because of pregnancy and

23.

childbirth” id. at 45. Here, the Bosselaits were

likewise presumed “unable to jor more accurately

unavailable for] work” by conditions beyond their

control. Despite the Bosselaits’

(a) long history of excellent work;

(b) involuntary layoff from their jobs;

(c) diligent search for work;

(d) providing the Department with its own

list of over 50 part-time janitorial vacancies; i.e. a

market for their services;

they were conclusively presumed ineligible for

benefits available to their recent co-workers

because of handicaps which limited their work

day, but not their unquestioned ability to work.

If Turner remains valid, it is hard to

understand why handicapped workers are not

entitled to the individualized determination

guaranteed Utah's pregnant women and all other

New Hampshire claimants on the issue of whether

there is a market for the services they offer.

Turner characterizes the state's justification

in the expediency embodied in using a presumption

as inadequate in the face of the “basic human

liberties...at stake” id at 46. And thus, in assessing

the level of scrutiny afforded to barriers

discriminating against those with handicaps, it

would be helpful for this Court to provide guidance

for lower courts applying the three opinions in

24.

Cleburne v. Cleburne Learning Center, Inc. 473 U.S.

432(1985). Even with the minimal scrutiny

afforded classifications in social welfare programs,

the discrimination embodied in the full-time

requirement against those who have worked but

cannot work a full day seems as offensive to the

Cleburne holding as to the Bosselaits, who decried

the law “discriminating against” them.

The issue takes on special importance for a

variety of reasons - which can be easily listed.

l. The growing market for part-time

workers; the U.S. t of Labor

"Monthly Labor Review” Feb.1986, p. 16

indicates that 24,682,000 le were

working part time and 17,340,000 of those

usually worked part-time. Employers may

provide them less or no benefits than

full-time workers, but can and should the

state be allowed to t such

discrimination when the workers become

involuntarily unemployed?

2. The nationwide push for

deinstitutionalization of the mentally and

emotionally handicapped and the similar

thrust to mainstream the physically

handicapped; does the Constitution protect

those whose limitations prevent full-time

work? Cleburne itself insisted on the

removal of artificial governmental

restrictions preventing the handicapped

from participating in group homes; does the

decision reach similar discrimination in

(unemployment programs?

25.

3. The need of many elderly or

handicapped throughout the nation who

cannot work a full day to supplement other

resources; does the Constitution offer them

protection? The Labor Department

statistics, supra, indicate that there were

144,000 part-time workers who usually

worked part-time because of their health

(like the Bosselaits for a decade) and

1,395,000 who usually worked full-time

but could not at the time of the survey

because of health reasons.

It seems worthy of this Court's consideration

to decide definitively what constitutional

protection is afforded the handicapped and

whether the state and federal governments can set

up a nationwide system of insurance against

involuntary unemployment, and then, consistent

with the guarantee of equal protection of the laws,

leave out of it those most vulnerable to involuntary

unemployment.

CONCLUSION

For the reasons stated above, a Writ of

Certiorari should issue to review the judgment of

the Supreme Court of New Hampshire.

A td a

Me.

ine

She

A~1 APPENDIX A

STATE OF NEW HAMPSHIRE

DEPARTMENT OF EMPLOYMENT SECURITY

517 LINCOLN STREET, MANCHESTER, NH 031035

DECISION OF APPEAL TRIBUNAL

Edward P. Bosselait Docket No. 1121-86

001 03 92350 Laconia

Spaulding Youth Center, Inc.

Benefits denied, claimant appealed.

APPEARANCES: Claimant with witness and

representative.

FINDINGS: The claimant, 79 years of age,

was employed as a part-time janitor by Spaulding

Youth Center, Inc. from 1964 unti] June 30, 1986

at which time he was laid off when the employer

sub-contracted his job to a professional cleaning \

firm. He worked fours hour a day from 4:00 p.m.

unti] 9:00 p.m., Monday through Friday, at $5.23

per hour.

The claimant will not accept any work

which requires him to work over four hours per

day. He contends that the law denying him

benefits is discriminatory to the elderly and should

be changed to allow benefits to persons who work

part-time only.

A-2

The Appea] Tribunal, after considering all the

records and testimony, finds that the claimant is

not ready, willing and able to accept and perform

suitable work on all of the shifts and during all of

the hours for which there is a market for the

services he offers and he is not available and

seeking permanent, full-time work and he therefore

does not meet the eligibility requirements of the

law within the meaning of RSA 282-A:31, l(c) and

(d).

DECISION: The claimant is ineligible to

receive benefits from June 30, 1986 through July

19, 1986 and until he shows that he is ready,

willing and able to accept and perform suitable

work on all of the shifts and during all] of the hours

for which there is a market for the services he

offers and that he has exposed himself to

employment to the extent commensurate with the

economic conditions and the efforts of a reasonably

prudent person seeking work.

Unanimous decision of the Appeal! Tribunal:

Merrill, Management; Buckham, Labor; Demers,

Chairman.

Roland P. Demeru

Chairman of the

Appeal Tribunal

Held: 7/30/86

Mailed: 8/20/86

APPENDIX B

STATE OF NEW HAMPSHIRE

DEPARTMENT OF EMPLOYMENT SECURITY

Appellate Division

32 South Main Street * Concord, N.H. 03301-4857

Kendal] W. Lane, Chairman

Joseph Stewart, Vice-Chairman

Eli Isaacson

Anne M. Hirshberg

Roger E. Gagnon

APPELLATE DIVISION DECISION

DOCKET #0065-86

(A) PARTIES

1. CLAIMANT: Albert J. Bosselait,

003-10-5676, Appellant

2. EMPLOYER: Spaulding Youth Center,

Appellee

3. DEPARTMENT OF EMPLOYMENT

SECURITY:

Michael M. Black, Esquire

(B) CASE HISTORY

1. TYPE OF CLAIM: Able and Available RSA

282-A:31, I(c) & (d)

2. LOCAL OFFICE: Laconia

3. WEEKS AT ISSUE: From June 30, 1986

through July 19, 1986 and until the

claimant shows that he is ready, willing

and able to accept and perform suitable

work on all of the shifts and during all of

the hours for which there is a market for

the services he offers and that he has

exposed himself to employment to the

extent commensurate with the economic

conditions and the efforts of a reasonably

prudent person seeking work.

4. APPEALED FROM: Appeal Tribunal

Decision

#1122-86; Merrill, Management; Bucknam,

Labor; Demers, Chairman.

5. COMMISSIONER'S DENIAL OF REQUEST TO

REOPEN - DATED: None (Remanded from

New Hampshire Supreme Court)

6. DATE OF APPEAL: January 15, 1987

HEARING: April 3, 1987

A-5

7. APPEARANCES: Bruce E. Friedman and

Patt Starr of the Franklin Pierce Law

Center, representative of the claimant;

Department by Attorney Black.

(C) DECISION

Edward and Albert Bosselait worked part time as

janitors for Spaulding Youth Center. They both

worked four hours a day. They shared on

eight-hour job, though the four hours they worked

were concurrent. It was admitted they were

physically able only to work four hours. NH RSA

282-A:31, (Dd provides that the claimant must be

available for and seeking permanent full-time work

for which he is qualified. The claimants in this

case are not seeking permanent full-time work but

rather are seeking only part-time work. Therefore,

under the statute they are not eligible for

unemployment compensation.

Amicas contends that RSA 282-A:31, I(d) violated a

Section 504 of the Rehabilitation Act of 1975 and

the regulations promulgated by the Secretary of

Labor pursuant to said act. Amicas cites us to

dicta in Schoolboard of Nassau City, Florida, et al

y. Gene H. Arline, US (55

U.S.L.W. 4245, March 3, 1987). The issue in that

case was whether or not a person suffering from a

A-6

contagious disease could be a handicapped person

within Section 504 of the Rehabilitation Act. That

question was answered in the affirmative. We

believe the issue raised by Amicas is best

addressed in the landmark case of Southeastern

Community Colige v. Davis, 442 US 397 (1979).

The Court faces several] issues. The initia] issue

was the language of the statute itself. The Court

found:

"[slection 504 by its terms does not compe!

educationa! institutions to disregard the

disabilities of handicapped individuals or to

make substantial modifications in their

programs to allow disabled persons to

participate. Instead, it requires only that an

‘otherwise qualified handicapped individual’

not be excluded from participation in a

federally funded program ‘solely by reason of

his handicap,’ indicating only that mere

possessionof a handicap is not a permissible

ground for assuming an inability to function in

a particular context.” Id at 405.

In further addressing the language of the statute,

the Court defined an otherwise qualified person as

one who was able to meet al] the program

requirements in spite of his handicap. Id 506.

A-7

The Court also considered the regulations

promulgated by the Department of Health,

Education and Welfare, that respondent had

pointed to as requiring a modification of the

program to fit her needs. The Court stated:

"{shuch a fundamental! alteration in the nature

of a program is far more than the

‘modification’ the regulation requires.” Id at

410. :

Further in considering the regulations, the Court

stated that:

"if these regulations were to require

substantia] adjustments in existing programs

beyond those necessary to eliminate

discrimination against otherwise qualified

individuals, they would do more than clarify

the meaning of s 504. Instead, they would

constitute an unauthorized extension of the

obligations imposed by the statute.” Id at 410.

Finally, in considering the regulations, the Court

found:

"fhjere, neither the language, purpose, nor

history of s 504 reveals an intent to impose an

~ A-8

affirmative-action obligation on all recipients

of federal funds. Accordingly, we hold that

even if HEW has attempted to create such an

obligation itself, it lacks the authority to do

so.” Id at 411, 412.

Similarly, the Secretary of Labor's regulations and

the Act cannot be interpreted to impose such an

obligation on the State of New Hampshire.

The claimants have further argued RSA 282-A:351,

I(d) as it applies to these claimants is

unconstitutional as a violation of Article I, Part 1 of

the New Hampshire Constitution. We cannot agree

with this. The New Hampshire Supreme Court has

held unemployment compensation rights to be

purely statutory. Hallahan v. Riley, 94 NH 338;

Poraponino v. State, 106 NH 2735; Kurowski v.

DES, 107 NH 177.

The Court has also stated the purpose of the

Unemployment Compensation Act:

",.18 to insure in limited measure against

unemployment of individuals regularly

attached through labor market which is

not occasioned with their consent or by their

fault.” Welman v. Riley, 95 NH 507, 510.

A-9

The Court has held the purpose of the availability

requirements:

"..48 to determine if he is unemployed because

of lack of suitable job opportunities or for

some other reason such as physical

incompacity or unwillingness to work.”

Roukey v. Riley, 96 NH 3561, 352.

There is no statutory or constitutional requirement

that 100 percent of all employees be entitled to

receive unemployment compensation benefits. The

Legislature has stated there is no vested right to

unemployment compensation (RSA 282-A:174).

The purpose of the Unemployment Compensation

Act and the availability requirements coupled with

the State's interest in preserving the integrity of

the Unemployment Compensation Trust Fund

provide a constitutional] basis for the distinction

between full-time and part-time employment. We

believe the facts surrounding the legislation support

not only the “rational basis” test (which appears to

apply to this appeal) but also that the “challenged

Classifications are reasonable and have a fair and

substantial relation to the object of the legislation”.

Carson vy. Maurer, 120 NH 925, 932, 936. This

A-10

statute does not create an unreasonable

classification, and, therefore, the question of

modifications to the statutory framework is an

issue to be decided in the legislative forum of this

State.

Therefore, the decision of the Appeal Tribunal is

SUSTAINED.

Signed: Kendal] W. Lane, Chairman

Concurring: Joseph Stewart, Vice Chairman

Roger Gagnon

Dated: April 24, 1987

A-11

APPENDIX C

; NOTICE: This Opinion is subject to Motions

for Rehearing under Rule 22 as well as formal

revision before publication in the New Hampshire

Reports. Readers are requested to notify the

Clerk/Reporter, Supreme Court of New Hampshire,

Supreme Court Building, Concord, New Hampshire

03301, of any errors in order that corrections may

be made before the Opinion goes to press. THE

CONTENTS OF THIS OPINION MAY BE DISCLOSED

AT OR AFTER 8:00 A.M. ON THE DATE THE

OPINION BEARS. IF THE OPINION IS RECEIVED

BEFORE THAT TIME AND DATE, ITS CONTENTS

SHOULD BE KEPT CONFIDENTIAL.

THE SUPREME COURT OF NEW HAMPSHIRE

Department of Employment Security

No. 87-159

APPEAL OF ALBERT AND EDWARD BOSSELAIT

(New Hampshire Department of Employment

Security)

duly &, 1988

Bruce E. Friedman, Franklin Pierce Law

Center Civil Practice Clinic, of Concord, by brief

and orally, for the plaintiffs.

A-12

Stephen E. Merrill, attorney general (David

S. Peck, assistant attorney general, on the brief and

orally), for the State.

SOUTER, J. Two formerly part-time

employees bring this appeal under RSA 282-A:67,

1, from an order of an appeal tribunal of the

department of employment security (DES), which

denied them unemployment compensation because

they were not “ready, willing and able” to accept

and perform full-time work. We affirm.

The plaintiffs, Albert and Edward Bosselait,

are brothers, who were 76 and 79 years old,

respectively, at the time they filed their claims for

benefits. For 22 years they shared a single

full-time janitor's position at the Spaulding Youth

Center in Northfield, each of them working four

hours a day. It is not disputed that during the

relevant time Spaulding was an employer within

the meaning of the unemployment compensation

act, see RSA 282-A:8, although it took advantage of

its status as a charitable corporation to become in

effect a self-insurer against any claims its

employees might bring for benefits on account of

unemployment, see RSA 282-A:69, II.

In 1986, Spaulding contracted with a third

party for custodial services and eliminated about

A-13

55 positions, including the job held jointly by the

plaintiffs. Following their discharge on June 30,

1986, the plaintiffs applied to DES for

unemployment compensation benefits, and when a

certifying officer rejected their claims, gee RSA

282-A:44, they applied to an appeal tribunal within

the department, see RSA 282-A:53. The tribunal

held an evidentiary hearing, at which the plaintiffs

were assisted by a lay representative, and each of

them testified about limitations on his capacity to

work. Mr. Albert Bosselait represented that he had

a “weak back [that] goes out of joint when least

expected” and his brother indicated that he was

limited by partial eyesight and angina. They

indicated forthrightly that they would not accept

new jobs calling for more than four hours of work

each day. Mr. Edward Bosselait testified that "we

don't dare to work more than four hours a day at

our age,” and said that he was “not gonna play

with fhis) health.”

When the tribunal called attention to the

statutory eligibility requirement that an applicant

must be “available for and seeking permanent,

full-time work,” see RSA 282-A:31, I(d), Mr.

Edward Bosselait responded that “I think [the

statute is] discriminating against old fellas... old

A-14

people.” The tribunal found each plaintiff ineligible

because he was “not ready, willing and able” to

accept full-time work as the statute required. See

RSA 282-A:31, I(c).

After the appeal tribunal's decision, the

plaintiffs obtained legal] counsel, who requested the

commissioenr of DES to reopen the case before the

tribunal, based on state and federal equal —

protection claims and general allegations that

subparagraph (d) violated State and federal] statutes

prohibiting discrimination against mothers, the

handicapped, and people over 65. When the

commissioner refused to reopen, the plantiffs

appealed the appeal tribunal decision to the

appellate division of DES, see RSA 282-A:62,

purporting to raise a State equal protection claim,

and asserting a governmental obligation to provide

unemployment compensation to mothers, the

handicapped, and the elderly, who may be limited

to part-time work. (The procedural history from

appeal tribunal to appellate division is complicated

in the extreme. See Appeal of Albert Bosselait &

a., N.H. Supr. Ct. No. 86-430. Fortunately, its

details have no bearing on the present appeal.)

The appellate division noted that it was

admitted that the plantiffs were physically able to

work only four hours a day, but rejected claims

A-15

that subparagraph (d) violated the State equal

protection standard and conflicted with § 504 of

the federal Rehabilitation Act of 1975, 29 U.S.C.A.

§ 794 (Supp. 1988). The appeal to this court

under

RSA 282-A:67 ensued. As we have explained

elsewhere, see Appeal of Kelly, 129 N.H. 462, 466,

529 A.2d 935, 937 (1987), our jurisdiction is

limited to reviewing the record of the appeal

tribunal for errors of law, see RSA 282-A:67, IV,

except insofar as that record may have been

clarified or the issues limited in the course of

subsequent proceedings before the appellate

division.

The plaintiffs have challenged the denial of

benefits by seeking to raise three issues before us.

They claim that subparagraph (d) violates the

federal Age Discrimination Act of 1975, 42 U.S.C.A.

86101 et seg. (1983); that it violates the federal

Rehabilitation Act of 1973, 29 U.S.C.A. §791 et seq ;

and that it violates State and federal csntitutiona]

guarantees of equal protection of the laws. Not one

of these issues, however, has been both timely

raised below and preserved for consideration on

appeal.

Under our Rule 10(1Xc), a party appealing

from an administrative agency is limited to the

questions “set forth in the petition [for appeal] or

fairly comprised therein..." The petition in this

A-16 :

Case sets out two questions, each of them raising

an issue of equal protection under the State and

National Constitutions. Any federal statutory

issues were thus waived, although it does not

appear that they were ever adequately raised

before the appea) tribunal.

The record below contains no reference to

the Age Discrimination Act, 42 U.S.C.A. §6101 et

before the appeal tribunal! that he thought

subparagraph (d) discriminated against the elderly,

his remark could not reasonably have been

understood as initiating a statutory claim under

federal law. The review of proceedings before the

appeal tribunal is likewise devoid of any reference

to a Claim under the Rehabilitation Act, 29 U.S.C.A.

§ 791 et seq. While the plaintiffs referred to their

physica! limitations, their remarks, again, were

insufficient to put the tribunal on notice that it

should address the factual as well as lega! issues

peculiar to such a federa! statutory claim.

Thus it appears from the record that the

plaintiffs not only failed to raise the statutory

issues in their appeal petition to us, but failed to

raise them initially in the trial forum of the appeal

tribunal. Their belated attempts to inject the

statutory issues into the appeal at this point

—————oao_”—

A-17

therefore run afoul of our rule that “issues [must

be] raised at the earliest possible time, because

trial forums should have a full opportunity to come

to sound conclusions and to correct [claimed] errors

in the first instance.” Sklar Realty v. Town of

Merrimack, 125 N.H. 321, 328, 480 A.2d 149,

153 (19884) (citation omitted). To this we may

add that unless a claim is raised in the trial forum,

there is no opportunity for a party to develop a

factual record supporting his theory of relief, or to

make an offer of proof sufficient to justify a

demand to introduce relevant evidence and

preserve an issue for appeal. (The commissioenr of

DES is, of course, authorized by RSA 282-A:60 to

permit a claimant to reopen a case within the time

allowed in order to raise a new issue before an

appeal tribunal, if the claimant has a reasonable

explanation for his previous failure to raise the

issue and can give an indication of legal and

factual support for the position he wishes to take.)

Sklar is equally applicable, moreover, to bar

consideration of the equal protection questions that

the plaintiffs purport to preserve by listing them in

this appeal] petition, for these constitutional issues

were never adequately raised before the appeal

tribunal. While, as we noted above, one plaintiff

expressed the view that subparagraph (d) was

__ division saw fit to dea] with an issue under the

A-18

discriminatory against the aged, neither he nor

anyone on hs behalf expressed the view that the

statute was therefore invalid as working a denial! of

equal protection. Since many statutes are

candidates for enlightened amendment without

thereby being in any way unconstitutional, the

plaintiff's remark was not sufficient to put anyone

on notice that he thereby meant to raise a

constitutional issue. (We have not overlooked the

fact that the plaintiffs sought to raise a State equal

protection claim in the appellate division. The

appellate division, however, is not the forum of

trial whre issues may be raised initially in

accordance with Sklar and like cases. The division

provides an intermediate administrative appeal, in

which issues previously raised may be waived or

narrowed; it does not provide an opportunity to

raise new issues for the first time. See Appeal of

Kelly, 129 N.H. at 466, 529 A.2d at 937.)

We must in candor say, therefore, that if the

state of the record had been adequately disclosed

to us we would not have accepted this appeal. See

Sup. Ct. R. 10. Because, however, the appellate

Rehabilitation Act and to conclude that there was

no violation of the State equal protection guarantee,

and because similar claims may be raised in the

future, there is some utility in speaking to these

A-19

issues here, rather than merely entering the

summary affirmance that would be proper under

Rule 25(1Xd).

Consideration of the claim under the

Rehabilitation Act begins with the text of § 504,

which is codified as 29 U.S.C.A. § 794 (Supp.

1988):

"No otherwise qualified individual with

handicaps. . . shall, solely by reason of his

handicap . . . be denied the benefits of ...

any program... receiving Federal financial

assistance."

"Individual with handicap” is defined as a person

who has a

"physical or mental impairment which

substantially limits one or more of [a]

person's major life activities,”

id. § 706(8XB Xi), such as

"caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.”

29 C.F.R. § 1613.702(cO (1987).

A-20

While it is not disputed that the

unemployment compensation scheme receives such

federal assistance as to render § 504 applicable,

and while it is not denied that the back, heart, and

eyesight problems described by the plaintiffs may

qualify as handicaps under § 706 (8XB) (i), it is by

no means obvious that the State statutory

restriction of benefits to those who can and will

accept full-time employment violates the federal

statute. Here it is enough to identify two barriers

to drawing any such conclusion in this case.

There is, first, the language of § 504, that nc

otherwise qualified individual may be denied

benefits “solely by reason of his handicap.” 29

U.S.C.A. § 794. Before this provision can be

applied to invalidate State action denying a benefit

there must, at the very least, be evidence adequate

to support a finding o1 “act that the handicap is the

sole reason for the denial. That is to say, proof of

an exclusive causal link between handicap and

denial of benefits is a necessary condition for

finding a violation of § 504. (It is not in any

simple sense a sufficient condition, however. See

infra.) To satisfy this necessary condition in the

present case, the plaintiffs would be required to

prove not only that they suffered from handicaps

but that the handicaps, and the handicaps alone,

A-21

rendered them unable to work a full day and,

hence, unable to satisfy subparagraph (d).

The actual evidence, however, falls short of

any such proof. It is neither common knowledge,

nor do the plaintiffs claim, that a weak back, poor

eyesight, or angina necessarily prevents an

individual who can work four hours a day from

working eight. The back was described as going out

of joint "when least expected,” and there was no

indication that the eyesight got worse in the course

of the day. Nor was there any testimony that the

risk of angina symptoms varied with the duration,

as distinguished from the intensity, of work. The

nature of angina is, in any case, a subject

sufficiently uncommon to every day experience as

to require expert medical testimony before any

conclusions can be drawn about its effect on the

Capacity to do a given job over a given time. See

April v. Peront, 88 N.H. 309, 311, 188 A. 457, 458

(1936).

All that is left, then, is the candid testimony

that the plaintiffs "don't dare to work more than

four hours a day at [their ages)" and would not

"play with [their] health,” which would most

reasonably be interpreted to mean that men close

to eighty do not have the capacity for eight hours

of physical labor every day without risk to their

A-22

health. Since the plaintiffs have made no claim

that the risks suggested by the phrase “old age”

amounted collectively to a handicap within the

meaning of 29 U.S.C.A. § 706(8) (B) (i), a finder of

fact could only conclude that if the plaintiffs were

unable to satisfy the full-time work requirement,

the reason was not a handicap, but the plaintiffs’

ages. The appeal tribunal, therefore, would have

had no evidentiary basis to find a violation of §

504 proceeding from the enforcement of

subparagraph (qd).

The second barrier to statutory relief appears

if we assume for argument, and contrary to the

evidence just discussed, that “handicaps” did

preclude the plaintiffs from seeking and accepting

full-time jobs. Again, our focus is on the statutory

condition that a denial of benefits to an "otherwise

qualified” applicant, 29 U.S.C.A. § 794, be “solely

by reason of .. . handicap,” id., before relief can be

granted. Here, however, our concern is not with

the need to prove a causal connection in fact

between a handicap and ineligibility, but with a

handicapped plaintiff's burden to demonstrate that

he is “otherwise qualified” because the handicap is

not a permissible basis for denying him the benefit

in question.

A difficulty inherent in this burden arises

once we recognize that some benefits may be

A-23

provided for purposes that cannot be achieved by

extending them to individuals with certain

handicaps. As one example that has already been

subject to litigation, there are legitimate reasons to

deny nursing education assistance to a person

whose deafness cannot be corrected or

compensated for sufficiently to permit her to act

effectively and safely in the circumstances that

nurses routinely confront. See Southeastern

Community College v. Davis, 442 U.S. 397, 411

(1979).

Hence, a line must be drawn between

legitimate eligibility standards, as exemplified in

the case of the deaf nurse, and criteria that would

violate § 504, and plaintiffs claiming a § 504

violation must prove something more than a mere

causa] link between handicap and denial of benefit.

The Supreme Court of the United States has

indicated that in cases involving the application of

a facially neutral standard imposed without

discriminatory animus, a § 504 violation may be

established by evidence that the eligibility

standard produces a disparate adverse impact with

a “particular exclusionary” effect on a class of the

handicapped, Alexander v. Choate, 469 U.S. 287,

302 (1985), which is unreasonable, gee id. at 299

n. 19, either because there is no reasonable basis

for the exclusion itself when considered in relation

A-24

to an appropriate governmental objective, see id. at

307-08, or because the exclusion could be

eliminated without maresponey expense, see

as lavis, supra at

412-13; Petes toe ee 716

F.2d 227, 231 (Srd cir. 1983); but see Southeastern

Community College v. Davis, supra at 410-11 (no

congressional] intent to impose an affirmative action

obligation on all recipients of federal funds).

Taking this as the rule, the present plaintiffs

would not be entitled to relief under § 504 without

demonstrating to the appropriate finder of fact

that, although subparagraph (d) is facially neutral

with respect to the handicapped (since it merely

disqualifies those who are unable or unwilling to

work full-time), it nonetheless has an exclusionary

effect that falls with particuiar disparity on the

handicapped. They would also have to satisfy the

burden of demonstrating either that the full-time

work criterion is unjustifiable by reference to any

legitimate governmental objective, or that it would

not be unreasonably costly or burdensome to

expand the benefited class to include all the

handicapped. These are, of course, tall evidentiary

orders, which the plaintiffs did not attempt to

address, or even request an opportunity to address,

before the appeal tribunal, as the forum of trial.

A-25

They are consequently entitled to claim no relief

under § 504.

We come to more familiar ground in reaching

the issue under the State Cosntitution, part I,

article 12, raised by the plaintiffs’ contention that

a denial of equal protection inheres in the

restriction of benefits to those who are able and

willing to work full-time. In addressing this State

equal protection claim, the plaintiffs are principally

concerned to persuade us to review the effect of

subparagraph (d) under the so-called middle-tier

test of Carson v. Maurer, 120 N.H. 925, 931-33,

424 A.2d 825, 830-31 (1980), which requires that

legislation restricting the enjoyment of an

“important substantive right” be reasonable, not

arbitrary, and justified by a "fair and substantial”

relationship to the effectuation of a legitimate

governmental objective.

The plantiffs offer three arguments to

support their claim that entitlement to

unemployment compensation should be treated as

an important substantive right for purposes of

Carson. None of them is persuasive.

First, the plaintiffs argue for heightened

scrutiny on the ground that part-time workers are

taxed like all other workers to provide funds for

paying unemployment compensation, but claimants

from that class of part-time workers are refused

A-26

benefits to which workers are generally entitled.

The argument carries the plaintiffs nowhere,

however, for it rests on false assumptions of fact

and law. First, workers like the plaintiffs are not

taxed; their employers are taxed. See RSA

282-A:69, I. Nor are the employers’ taxes in

reality paid from the employees’ pockets. While

we may assume that unemployment compensation

expenses, like other expenses of doing business,

affect an employer's capacity and willingness to

pay a given level of wages, it is not demonstrably

apparent that employers’ taxes generally (or, in

this case, the employer's payments of benefits) are

taken dollar-for-dollar from funds that would

otherwise be expended in wages. The second

mistaken assumption is that that those who work

only part-time are denied benefits when they are

unemployed. On the contrary, former part-time

workers, like former full-time employees, are not

disqualified unless they are unable or unwilling to

take a full-time job as a condition of receiving

unemployment compensation. That is to say, the

members of the class affected by subparagraph (d)

are not identified by the hours they used to work,

but by the hours they can and will agree to work

in the immediate future.

The second argument for heightened scrutiny

purportedly rests on an analogy with federal cases

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applying a middle-tier test under the fourteenth

amendment for reviewing disparate treatment

based on gender, because of its immutability as a

characteristic. See, e.g., Califano v. Goldfarb, 430

U.S. 199 (1977). The plaintiffs argue that their age

is as immutable as gender, and because

subparagraph (d) is said to have a disparate effect

on the elderly, it should receive middle-tier

scrutiny. Whatever may be the merits of the

analogy, the short answer to any suggestion that a

distinction based on age merits middle-tier review

under the Nationa] Constitution is answered by

Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307, 313-14 (1976), in which the Supreme

Court of the United States rejected the argument

for strict scrutiny of age discrimination claims, in

favor of the rational basis test. See Cleburne v.

Cleburne Living Center, Inc., 475 U.S. 432, 440-41

(1985) (collecting cases on levels of fourteenth

amendment equal protection review); see also

Washington v. Davis, 426 U.S. 229, 242 (1976)

(non-dispositive significance of merely disparate

impact in equal] protection review). There is thus

no basis to claim that State equal protection

should grant the middletier scrutiny that federal

equal protection would provide, because federal

equal protection does not provide it.

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Finally, the plaintiffs try to identify their

interests with the rights on which middletier

review was premised in Carson, 120 N.H. at 925,

424 A.2d at 825, and Estabrook v. American Hoist

& Derrick, Inc., 127 N.H. 162, 498 A.2d 741

(1985). But to see why the present case bears no

comparison with Carson and Estabrook, it is only

necessary to recall that those cases dealt with

selective restrictions on common law rights of

action to recover for injuries. Here, on the

contrary, we are not dealing with any common law

right of recovery that was superseded by the

unemployment compensation scheme, for the latter

is entirely a creation of Adams, 113 N.H. 370, 373,

308 A.2d 844, 846 (1973); Pomponio v. State, 106

N.H. 272, 274, 209 A.2d 733, 734 (1965). Carson

and Estabrook therefore have no bearing on the

case.

If the analogy with Carson and Estabrook

fails, however, comparisons with other prior cases

are ready at hand. In Arsenault v. Abbott

Furniture Corp., 122 N.H. 521, 522, 446 A.2d

1174, 1175 (1982), we considered an equal

protection challenge to the benefit scheme under

the workers’ compensation act, RSA chapter 281,

which we resolved by application of the rational

basis test. We thus applied to alleged disparities in

compensation for injuries related to employment

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the same test we have since applied to equal

DrCaneRIR cneienee to jowien schedules in

N.H. B36, B40, 5290 Aza 968, 971 (4987).

Goulette's holdng exemplified a broader rule that

legislation merely regulating economic benefits and

burdens, with no other significant feature, is

reviewable under the rational basis criterion when

challenged under the equal protection clause for

allegedly producing disparate treatment, or under

the due process clause on the ground that even its

impartial application is invalid. See Boehner v.

State, 122 N.H. 79, 83-84, 441 A.2d 1146, 1148

(1982) (quoting Opinion of the Justices, 117 N.E.

749, 758, 379 A.2d 782, 788 (1977)); see also

Cleburne v. Cleburne Learning Center, Inc., 475

U.S. at 440 (rational basis test applied to review

"social or economic legislation” on fourteenth

amendment equal protection review).

A challenge to differentia] treatment in the

distribution of benefits under an unemployment

compensation scheme thus presents a classic

occasion to apply the rational basis test, and the

burden therefore rests on the plaintiffs to

demonstrate that the resriction of benefits to those

able and willing to accept full-time work is not

rationally related to the advancement of any

legitimate governmental interest. See Boehner v.

State, supra at 84, 441 A2d at1149. But this

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they cannot do, for the State has identified two

objectives that the legislature could find both to be

served by the restriction in question and to further

the admittedly proper State policy of mitigating the

effects of involuntary unemployment.

The first such objective is to conserve the

available funds for the benefit of those who need

them most, by restricting eligibility for benefits to

those who need them most. Those who need the

funds most are those with no sources of income

except their paychecks. Such claimants are likely

to seek full-time work, because they will need the

level of pay that only full-time work yields.

Conversely, the legislature could infer that those

who can or will work only part-time probably have

another source of income or support that provide

some mitigation for the effects of unemployment.

The legislature could, in short, conclude that the

full-time work requirement would effectively select

the most needy applicants, for whose benefit the

unemployment compensation funds should be

conserved.

The second objective that could be found to

be served by subparagraph (d) is that of limiting

the unemployment itself to the briefest possible

period, and thus limiting the demand for benefits

himself to part-time work thereby isolates himself

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from a significant, and probably the major, segment

of the job market, the legislature was entitled to

infer that an applicant ready to take full-time work

has a better chance of getting some job within any

given period of time. Once the applicant has a job,

he can of course look about for an alternative

schedule more to his liking, since he and his family

will not be subjected to unusual privation while he

does so, and no employer will be taxed to

compensate him while he makes the further

search. But pending a successful completion of

that further search, the legislative goals of limiting

unemployment and its social] costs will be served

by inducing the unemployed to accept work

full-time if that is what turns up first.

The scheme as so rationalized will] not,

admittedly, produce an exact equality of benefits

and burdens among the variously identifiable

segments of employable people. But the standard

of equal protection makes no such demand,

Boehner v. State, 122 N.H. at 85, 441 A.2d

149-50, any more than it requires a court

reviewing the effects of unemployment

compensation to ignore the other societal benefits,

such as socia] security, that are available to

responsible and commendable job applicants like

the plaintiffs, whose age prevents their acceptance

of full-time work.

Affirmed. All concurred.

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APPENDIX D

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 87-159 Appeal of Albert é& Edward

Bosselait :

the court upon July 29, 1988 made the following

order:

Plaintiffs’ motion for rehearing or

reconsideration is denied.

Distribution:

Bruce E. Friedman

Daniel J. Mullen

Spaulding Youth Center, Inc.

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C. QUESTIONS PRESENTED

APPENDIX E

1. Does RSA 282-A:31, I(d) violate federal

law and/or state and federal constitutional

guarantees of due process and equal protection in

that it denies unemployment compensation benefits

to an involuntarily unemployed part-time worker

who is actively seeking permanent part-time work

for which a market exists solely because he or she

is unwilling or unable to seek full-time work? [This

issue was presented to D.E.S and properly

preserved.)

2. Does RSA 282-A:31, I(d) violate federal

law and/or the state and federal constitutional

guarantees of equal protection in that it

discriminates against part-time workers, the

majority of whom are elderly, handicapped or

females with domestic responsibilities? [This issue

was presented to D.E.S. and properly preserved.)