SB 132(efd fld): "An Act relating to complaints filed with, investigations, hearings, and orders of, and the interest rate on awards of the State Commission for Human Rights; and making conforming amendments."
00 SENATE BILL NO. 132(efd fld) 01 "An Act relating to complaints filed with, investigations, hearings, and orders of, and 02 the interest rate on awards of the State Commission for Human Rights; and making 03 conforming amendments." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 18.80.100 is amended to read: 06 Sec. 18.80.100. Complaint; time limitations. A person who is aggrieved by 07 a [ANY] discriminatory practice [CONDUCT] prohibited by this chapter may sign 08 and file with the commission a written, verified complaint stating the name and 09 address of the person alleged to have engaged in the discriminatory practice 10 [CONDUCT], and the particulars of the discrimination. A complainant may 11 withdraw the complaint at any time before the service of an accusation under 12 AS 18.80.120. A withdrawal must be signed by the complainant and be in 13 writing. A withdrawal does not limit the discretion of the executive director 14 provided in (b) of this section [THE EXECUTIVE DIRECTOR MAY FILE A
01 COMPLAINT IN LIKE MANNER WHEN AN ALLEGED DISCRIMINATION 02 COMES TO THE ATTENTION OF THE DIRECTOR]. 03 * Sec. 2. AS 18.80.100 is amended by adding new subsections to read: 04 (b) The executive director may file a complaint in the manner provided in (a) 05 of this section when a discriminatory practice comes to the attention of the executive 06 director. 07 (c) A complaint may be filed not later than 180 days after the alleged 08 discriminatory practice occurred or, for a continuing discriminatory practice, not later 09 than 180 days after the alleged discriminatory practice stopped. 10 * Sec. 3. AS 18.80.110 is amended to read: 11 Sec. 18.80.110. Investigation and conciliation. The executive director or a 12 member of the commission's staff designated by the executive director shall 13 informally investigate the matters set out in a filed complaint, promptly and 14 impartially. If the investigator determines that there is [THE ALLEGATIONS ARE 15 SUPPORTED BY] substantial evidence of an unlawful discriminatory practice 16 under this chapter, the investigator shall immediately try to eliminate or remedy the 17 discriminatory practice through an agreement reached [DISCRIMINATION 18 COMPLAINED OF,] by conference, conciliation, and persuasion. If an agreement is 19 reached, it must be reduced to writing and signed by the complainant, executive 20 director, and respondent. The agreement is binding and enforceable under this 21 chapter as an order of the commission. An agreement reached under this section 22 may include the compromise of damages authorized under this chapter. 23 * Sec. 4. AS 18.80 is amended by adding a new section to read: 24 Sec. 18.80.112. Dismissal of complaint without prejudice. (a) If an 25 investigation of a complaint under AS 18.80.110 fails to discover substantial evidence 26 of an unlawful discriminatory practice under this chapter, the executive director shall 27 issue an order dismissing the complaint without prejudice. The commission, in its 28 discretion, may review the executive director's order of dismissal and may affirm the 29 order, remand the complaint for further investigation, or refer the complaint for 30 conference, conciliation, and persuasion as provided in AS 18.80.110 if it concludes 31 that substantial evidence supports the complaint of an unlawful discriminatory
01 practice. 02 (b) At any time before the issuance of an accusation under AS 18.80.120, the 03 executive director may dismiss without prejudice a complaint if the executive director 04 determines, in the executive director's discretion, that 05 (1) the complainant's objection to a proposed agreement under 06 AS 18.80.110 is unreasonable; 07 (2) the complainant is unavailable or unwilling to participate in a 08 hearing; 09 (3) relief is precluded by the absence of the person alleged to have 10 engaged in the discriminatory practice; 11 (4) the person aggrieved by the discriminatory practice has initiated or 12 wants to initiate an action or proceeding in another forum based on the same facts; 13 (5) a hearing will not represent the best use of commission resources; 14 (6) a hearing will not advance the purposes stated in AS 18.80.200; or 15 (7) the probability of success of the complaint on the merits is low. 16 (c) Dismissal under this section does not prevent a complainant from 17 (1) initiating an action or proceeding in another forum; or 18 (2) filing a new complaint under AS 18.80.100 that resolves the 19 grounds for the dismissal under this section. 20 * Sec. 5. AS 18.80.120 is repealed and reenacted to read: 21 Sec. 18.80.120. Hearing. (a) If no agreement is reached under AS 18.80.110 22 and the executive director determines, in the executive director's discretion, to refer 23 the complaint for hearing, the executive director shall issue an accusation based on the 24 investigator's determination of substantial evidence and serve the person charged in 25 the accusation and the complainant with notice of the referral and a copy of the 26 accusation. The executive director's decision to refer the complaint to hearing is not 27 reviewable by the commission under this chapter. The location of the hearing is the 28 commission office unless the commission designates another location. The executive 29 director, or the executive director's designee, shall present the case in support of the 30 accusation before the commission. The person charged in the accusation may file a 31 written answer and may appear at the hearing, with or without counsel, and submit
01 evidence. 02 (b) The commission shall request the chief administrative law judge to appoint 03 under AS 44.64.020 an administrative law judge employed or retained by the office of 04 administrative hearings to preside over a hearing conducted under this section. 05 AS 44.64.040, 44.64.050, 44.64.055, 44.64.070, 44.64.080, 44.64.090, 44.64.095, and 06 44.64.200, and the procedures in AS 44.62.330 - 44.62.630 (Administrative Procedure 07 Act), apply to the hearing except as otherwise provided in this chapter. 08 (c) An accusation may be reasonably and fairly amended by the commission. 09 An amendment to name a different discriminatory practice must be supported by 10 substantial evidence, and the discriminatory practice must be referred for conference, 11 conciliation, and persuasion as provided in AS 18.80.110, before a hearing may 12 proceed. 13 (d) In a hearing on an accusation, each element of an accusation or defense 14 must be proven by a preponderance of the evidence. 15 (e) At any time after the issuance of an accusation, the executive director or 16 the person charged in the accusation may petition for a summary decision on the 17 accusation. The commission shall grant a petition if the record shows that there is no 18 genuine issue of material fact and the petitioner is entitled to an order under 19 AS 18.80.130 as a matter of law. 20 * Sec. 6. AS 18.80.130(a) is amended to read: 21 (a) At the completion of the hearing or after consideration of a petition for 22 summary decision under AS 18.80.120(e), if the commission finds that a person 23 charged in an accusation [AGAINST WHOM A COMPLAINT WAS FILED] has 24 engaged in the discriminatory practice [CONDUCT] alleged in the accusation 25 [COMPLAINT], it shall order the person to refrain from engaging in the 26 discriminatory practice [CONDUCT]. The order must include findings of fact [,] and 27 may order the person to take affirmative action to correct the discriminatory 28 practice [PRESCRIBE CONDITIONS ON THE ACCUSED'S FUTURE CONDUCT 29 RELEVANT TO THE TYPE OF DISCRIMINATION]. The commission may not 30 order an award of noneconomic or punitive damages in any case. In a case 31 involving a discriminatory practice [DISCRIMINATION] in
01 (1) employment, the commission may order any appropriate relief, 02 including [BUT NOT LIMITED TO,] one or more of the following: training of an 03 employer, labor organization, or employment agency, and its employees 04 concerning discriminatory practices; an accommodation for a person with a 05 disability; removal of or changes to a personnel record; posting of signs; 06 backpay; the hiring, reinstatement, or upgrading of an employee with or without back 07 pay; the payment of front pay for a period of not more than one year if hiring, 08 reinstatement, or upgrading of an employee is inappropriate because no vacancy 09 exists, the employer's discriminatory practice rendered the employee incapable of 10 returning to work, or the relationship between the employer and employee has so 11 deteriorated as to make working conditions intolerable; [,] restoration to 12 membership in a labor organization; [, or] admission to or participation in an 13 apprenticeship training program, on-the-job training program, or other retraining 14 program; or restoration of seniority; however, an order for back pay or front pay 15 must be reduced by the amount the employee could have earned or could earn by 16 making reasonably diligent efforts to obtain similar employment; 17 (2) housing, the commission may order the sale, lease, or rental of the 18 housing accommodation to the aggrieved person if it is still available, or the sale, 19 lease, or rental of a like accommodation owned by the person charged in the 20 accusation [AGAINST WHOM THE COMPLAINT WAS FILED] if one is still 21 available, or the sale, lease, or rental of the next vacancy in a like accommodation, 22 owned by the person charged in the accusation [AGAINST WHOM THE 23 COMPLAINT WAS FILED]; the commission may award actual damages, which shall 24 include [, BUT NOT BE LIMITED TO,] the expenses incurred by the complainant for 25 obtaining alternative housing or space; for storage of goods and effects; for moving; 26 and for other costs actually incurred as a result of the unlawful practice or violation. 27 * Sec. 7. AS 18.80.130(c) is amended to read: 28 (c) If the commission finds that a person charged in an accusation 29 [AGAINST WHOM A COMPLAINT WAS FILED] has not engaged in the 30 discriminatory practice [CONDUCT] alleged in the accusation [COMPLAINT], it 31 shall issue and cause to be served on the complainant an order dismissing the
01 complaint. 02 * Sec. 8. AS 18.80.130 is amended by adding a new subsection to read: 03 (f) The interest rate for an award under this section is determined in the 04 manner provided in AS 09.30.070. 05 * Sec. 9. AS 18.80.135(b) is amended to read: 06 (b) The commission may obtain a court order for the enforcement of any of its 07 orders by filing a complaint with the superior court in the judicial district in which the 08 unlawful practice [CONDUCT] is alleged to have occurred. 09 * Sec. 10. AS 18.80.140 is amended to read: 10 Sec. 18.80.140. Effect of compliance with order. Immediate and continuing 11 compliance with all the terms of a commission order is a bar to criminal prosecution 12 for the particular instances of discriminatory practice [CONDUCT] described in the 13 accusation issued under AS 18.80.120 [FILED BEFORE THE COMMISSION]. 14 * Sec. 11. AS 18.80.270 is amended to read: 15 Sec. 18.80.270. Penalty. A person, employer, labor organization, or 16 employment agency, who or that wilfully engages in an unlawful discriminatory 17 practice [CONDUCT] prohibited by this chapter, or wilfully resists, prevents, 18 impedes, or interferes with the commission or any of its authorized representatives in 19 the performance of duty under this chapter, or who or that wilfully violates an order of 20 the commission, is guilty of a misdemeanor and, upon conviction by a court of 21 competent jurisdiction, is punishable by a fine of not more than $500, or by 22 imprisonment in a jail for not more than 30 days, or by both. 23 * Sec. 12. AS 18.80.300 is amended by adding new paragraphs to read: 24 (17) "complainant" means a person who is aggrieved by a 25 discriminatory practice prohibited by this chapter and who has filed a complaint as 26 provided in AS 18.80.100; 27 (18) "pay" means wages; salaries; commissions; amounts an employer 28 contributes to retirement, health, or other fringe benefit plans; and other forms of 29 remuneration paid to an employee for personal services. 30 * Sec. 13. AS 44.62.330(a) is amended by adding a new paragraph to read: 31 (45) State Commission for Human Rights, where procedures are not
01 otherwise expressly provided in AS 18.80. 02 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 TRANSITION: REGULATIONS. The State Commission for Human Rights may 05 proceed to adopt regulations necessary to implement the changes made by this Act. The 06 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 07 effective date of the statutory change. 08 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 APPLICABILITY. This Act applies to all complaints filed on or after the effective 11 date of secs. 1 - 13 of this Act.