Legislature(2003 - 2004)
05/04/2004 08:02 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES Number 1330 CHAIR WEYHRAUCH announced that the last order of business would be CS FOR SENATE BILL NO. 354(STA) am(efd fld), "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; and making conforming amendments." Number 1360 LISA M. FITZPATRICK, Esq., Chair, Human Rights Commission, Office of the Governor, said she would focus on the provisions of the bill that contain the remedies that would be available to the commission in the event that there is a finding of discrimination. She reported that the commission is contacted annually by thousands of individuals looking for information and relief. Many of those cases are not limited by jurisdiction, and so the commission actually ends up opening files on approximately 450 cases annually. Of those cases, Ms. Fitzpatrick said, most are resolved short of investigation and litigation. MS. FITZPATRICK said that historically, when there is a finding of discrimination, the commission has been authorized to put the individual who has been discriminated against back in the same state that he/she would have been [in] before the alleged discrimination occurred. She mentioned language in statute that allows the commission to award any appropriate relief. She noted that the language says, "including but not limited to" and then she enumerated several forms of relief. MS. FITZPATRICK said that SB 354 would modify that [statute] by allowing the commission to only award a few limited types of relief, which would include "back pay and front pay." She said the commission agrees those are important forms of relief, but not the only forms of economic relief that an individual ought to be able to obtain if he/she goes to the commission for a determination. The commission would also be allowed to order an employer to reinstate an employee, which is historically one of the mainstay forms of relief that people are afforded. She continued as follows: If you have an individual who requires a reasonable accommodation for their disability, it does not specifically allow the commission to authorize and order a reasonable accommodation for the person with the disability. It does not require the payment of retirement benefits, for example, if an individual has been discharged for discriminatory reasons. It doesn't allow for lost benefits that would have been included in the paycheck. So, for example, if you have an individual who is hired to work in a remote site and housing is a part of their ... compensation package but, as a result, their actual monetary paycheck is reduced, it does not specifically allow the commission to award compensation ... that would make up the difference. ... And there are ... varying situations under which, ... if an individual is discharged, they would lose their benefits of health insurance. But [also] there are actually instances where we are aware of an employer ... keeping an employee, but taking away their medical benefits when they became aware that the individual was pregnant. And it's hard to conceive of a justification that would be nondiscriminatory for that kind of an action, but the result is that then the employee is not covered by insurance and is in a situation of ... having to subsidize their pregnancy- related costs out of their own pocket. And under the present statutes it's not clear that ... the commission could do anything to assist that individual under those circumstances. There are other instances, as well. For example, ... if an individual has been discharged, the absence of any relief pertaining to vesting in a retirement plan or bonus, ... vacation pay, ... or restoration [of] seniority, reimbursement of other medical costs or other out-of-pocket expenses are not addressed in this bill. And these are all forms of relief that the commission has historically awarded individuals in varying forms. Obviously, in any one of these there's a duty on the part of the individual to mitigate their damages, to try to offset any costs that they might incur or have incurred. But [historically] the commission has been enabled to ... [make] these individuals ... whole, and we are concerned that by taking away that form of relief, ... these individuals are going to be coming up short and that there's realistically no other form [of relief] available to them. The Department of Law has argued in the past that these individuals can just go to the court system and file a case, and in some instances that is correct. But in the general run-of-the-mill case, there are a number of reasons why it is not a realistic alternative for these individuals. First off, the average case that the commission handles where it makes a finding of substantial evidence that there has been discrimination involves a small amount of money in the scheme of cases ... CHAIR WEYHRAUCH interjected to request that Ms. Fitzpatrick continue with her testimony at a future meeting. Number 1650 SENATOR GRETCHEN GUESS, Alaska State Legislature, spoke as a member of the Senate Rules Standing Committee ("SRLS"), sponsor by request of the governor. She stated that she is "fairly passionate about this bill" and some changes that she would like considered. SENATOR GUESS directed attention to Section 4, which is in regard to "Dismissal of complaint without prejudice", and said she is concerned about the broad authorization it would give to any executive director to dismiss a case. She said she knows that the commission is overwhelmed and needs to start being able to dismiss cases without going to full hearings. Notwithstanding that, she pointed out that there is not concurrence with the commission on any of the dismissals, so it would give the executive director full authority to dismiss cases, without any concurrence or review by the commission. The specific dismissals that Senator Guess said were of concern to her are listed on page 3: [subsection (a), paragraphs] (4), (6), (8)-(9). Paragraph (4) read: "(4) a hearing will not benefit the complainant". Paragraph (6) read: "(6) A hearing will not represent the best use of commission resources". Paragraph (8) read: "(8) the probability of success of the complaint on the merits is low". Paragraph (9) read: "(9) proceeding to a hearing will not serve the public interest". SENATOR GUESS offered her understanding that paragraphs (4) and (8) deal in prejudging the situation, while paragraphs (6) and (9) are very subjective statements for one person to make about an important issue. She asked the committee to consider whether it wants an executive director to have that much authority in statute, noting that the reason for the proposed dismissals are that [the commission] is too overwhelmed. However, from a policy perspective, she stated that she is not sure why the bill doesn't "go towards prioritizing versus dismissing." She clarified, "I don't mind a prioritization if we don't have enough resources, but I'm a little concerned when we start dismissing cases." Number 1807 SENATOR GUESS directed attention to some of the language being added to page 4, lines 17-18, which read: "The commission may not order an award of noneconomic or punitive damages in any case". She stated that the withdrawing of noneconomic and punitive damages prevents the commission from considering creative alternatives that would hopefully stop complaints in the future. She said she thinks the commission has done a good job at being creative about solutions, "both to make the person whole and, hopefully, helping that employer so there's no more complaints in the situation." She continued as follows: I [understand] wanting to make it clear to the public ... [that] it can't think that they're going to come and get a million-dollar judgment from [the] Human Rights Commission. On the other hand, I don't know if limiting the commission is the way to achieve that - if having very strict policy and regulations around that is the way to achieve it. Number 1887 SENATOR GUESS turned to the issue of front pay and the proposed limits on such. She noted that it used to be unlimited front pay, and explained that means that if she were discriminated against at the beginning of the process by never being hired, and it was found to be discrimination, the front pay would be what she would have been paid. She mentioned a considered compromise in the Senate of going to two years, the average length of one of the cases, and remarked that she is not certain how it ended up being one year, but surmised that there wasn't a lot of thought put into it and she just happened not to be in committee that day. She indicated that this is another issue for the committee to consider. Number 1929 SENATOR GUESS, in response to a question, offered her understanding that back pay exists only if a person is hired and then fired. She indicated that the Senate had not been able to "flesh that out" and the commission still "had some problems with it." REPRESENTATIVE SEATON responded, "But if the question comes down that after determination is made, everything beyond that would have been considered back pay, and we are talking about a year in the future, you don't have a problem with that?" SENATOR GUESS answered no. She said she thinks that's a reasonable policy. She said, "It's having a clear definition, which, on the Senate side, it wasn't." [SB 354 was held over.]
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