HCS SB 132(JUD): "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; providing for attorney fees and costs in cases involving human rights violations; making conforming amendments; and amending Rule 82, Alaska Rules of Civil Procedure."
00 HOUSE CS FOR SENATE BILL NO. 132(JUD) 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; providing for 03 attorney fees and costs in cases involving human rights violations; making conforming 04 amendments; and amending Rule 82, Alaska Rules of Civil Procedure." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 18.80.100 is amended to read: 07 Sec. 18.80.100. Complaint; time limitations. A person who is aggrieved by 08 a [ANY] discriminatory practice [CONDUCT] prohibited by this chapter may sign 09 and file with the commission a written, verified complaint stating the name and 10 address of the person alleged to have engaged in the discriminatory practice 11 [CONDUCT], and the particulars of the discrimination. A complainant may 12 withdraw the complaint at any time before the service of an accusation under 13 AS 18.80.120. A withdrawal must be signed by the complainant and be in 14 writing. A withdrawal does not limit the discretion of the executive director
01 provided in (b) of this section [THE EXECUTIVE DIRECTOR MAY FILE A 02 COMPLAINT IN LIKE MANNER WHEN AN ALLEGED DISCRIMINATION 03 COMES TO THE ATTENTION OF THE DIRECTOR]. 04 * Sec. 2. AS 18.80.100 is amended by adding new subsections to read: 05 (b) The executive director may file a complaint in the manner provided in (a) 06 of this section when a discriminatory practice comes to the attention of the executive 07 director. 08 (c) A complaint may be filed not later than one year after the alleged 09 discriminatory practice occurred or, for a continuing discriminatory practice, not later 10 than one year after the alleged discriminatory practice stopped. 11 * Sec. 3. AS 18.80.110 is amended to read: 12 Sec. 18.80.110. Investigation and conciliation. The executive director or a 13 member of the commission's staff designated by the executive director shall 14 informally investigate the matters set out in a filed complaint, promptly and 15 impartially. If the investigator determines that there is [THE ALLEGATIONS ARE 16 SUPPORTED BY] substantial evidence of an unlawful discriminatory practice 17 under this chapter, the investigator shall immediately try to eliminate or remedy the 18 discriminatory practice through an agreement reached [DISCRIMINATION 19 COMPLAINED OF,] by conference, conciliation, and persuasion. If an agreement is 20 reached, it must be reduced to writing and signed by the complainant, executive 21 director, and respondent. The agreement is binding and enforceable under this 22 chapter as an order of the commission. An agreement reached under this section 23 may include the compromise of damages authorized under this chapter. 24 * Sec. 4. AS 18.80 is amended by adding a new section to read: 25 Sec. 18.80.112. Dismissal of complaint without prejudice. (a) If an 26 investigation of a complaint under AS 18.80.110 fails to discover substantial evidence 27 of an unlawful discriminatory practice under this chapter, the executive director shall 28 issue an order dismissing the complaint without prejudice. 29 (b) At any time before the issuance of an accusation under AS 18.80.120, the 30 executive director may dismiss without prejudice a complaint if the executive director 31 determines that
01 (1) the complainant's objection to a proposed agreement under 02 AS 18.80.110 is unreasonable; 03 (2) the complainant is unavailable or unwilling to participate in a 04 hearing; 05 (3) relief is precluded by the absence of the person alleged to have 06 engaged in the discriminatory practice; 07 (4) the person aggrieved by the discriminatory practice has initiated or 08 wants to initiate an action or proceeding in another forum based on the same facts; 09 (5) a hearing will not represent the best use of commission resources; 10 (6) a hearing will not advance the purposes stated in AS 18.80.200; or 11 (7) the probability of success of the complaint on the merits is low. 12 (c) The commission, in its discretion, may, but is not required to, review the 13 executive director's order of dismissal under (a) or (b) of this section and may affirm 14 the order, remand the complaint for further investigation, or, if the commission 15 concludes that substantial evidence supports the complaint of an unlawful 16 discriminatory practice, refer the complaint for conference, conciliation, and 17 persuasion as provided in AS 18.80.110, or for hearing. 18 (d) Dismissal under this section does not prevent a complainant from 19 (1) initiating an action or proceeding in another forum; or 20 (2) filing a new complaint under AS 18.80.100 that resolves the 21 grounds for the dismissal under this section. 22 * Sec. 5. AS 18.80.120 is repealed and reenacted to read: 23 Sec. 18.80.120. Hearing. (a) If no agreement is reached under AS 18.80.110 24 and the executive director determines to refer the complaint for hearing, the executive 25 director shall issue an accusation based on the investigator's determination of 26 substantial evidence and serve the person charged in the accusation and the 27 complainant with notice of the referral and a copy of the accusation. The executive 28 director's decision to refer the complaint to hearing is not reviewable by the 29 commission under this chapter. The location of the hearing is the commission office 30 unless the commission designates another location. The executive director, or the 31 executive director's designee, shall present the case in support of the accusation before
01 the commission. The person charged in the accusation may file a written answer and 02 may appear at the hearing, with or without counsel, and submit evidence. 03 (b) The commission shall request the chief administrative law judge to 04 appoint, under AS 44.64.020, an administrative law judge employed or retained by the 05 office of administrative hearings to preside over a hearing conducted under this 06 section. AS 44.64.040 - 44.64.055, 44.64.070 - 44.64.200, and the procedures in 07 AS 44.62.330 - 44.62.630 (Administrative Procedure Act) apply to the hearing except 08 as otherwise provided in this chapter. 09 (c) An accusation may be reasonably and fairly amended by the commission. 10 An amendment to name a different discriminatory practice must be supported by 11 substantial evidence, and the discriminatory practice must be referred for conference, 12 conciliation, and persuasion as provided in AS 18.80.110, before a hearing may 13 proceed. 14 (d) In a hearing on an accusation, each element of an accusation or defense 15 must be proven by a preponderance of the evidence. 16 (e) At any time after the issuance of an accusation, the executive director or 17 the person charged in the accusation may petition for a summary decision on the 18 accusation. The commission shall grant a petition if, after a reasonable opportunity for 19 discovery, the record shows that there is no genuine issue of material fact and the 20 petitioner is entitled to an order under AS 18.80.130 as a matter of law. 21 * Sec. 6. AS 18.80.130(a) is amended to read: 22 (a) At the completion of the hearing or after consideration of a petition for 23 summary decision under AS 18.80.120(e), if the commission finds that a person 24 charged in an accusation [AGAINST WHOM A COMPLAINT WAS FILED] has 25 engaged in the discriminatory practice [CONDUCT] alleged in the accusation 26 [COMPLAINT], it shall order the person to refrain from engaging in the 27 discriminatory practice [CONDUCT]. The order must include findings of fact [,] and 28 may order the person to take affirmative action to correct the discriminatory 29 practice. The commission may not order an award of noneconomic or punitive 30 damages in a case [PRESCRIBE CONDITIONS ON THE ACCUSED'S FUTURE 31 CONDUCT RELEVANT TO THE TYPE OF DISCRIMINATION]. In a case
01 involving a discriminatory practice [DISCRIMINATION] in 02 (1) employment, the commission may order any appropriate relief, 03 including one or more of the following: training of an employer, labor 04 organization, or employment agency, and its employees concerning 05 discriminatory practices; an accommodation for a person with a disability; 06 removal of or changes to a personnel record; posting of signs; back pay; [BUT 07 NOT LIMITED TO,] the hiring, reinstatement, or upgrading of an employee with or 08 without back pay; the payment of front pay for a period of not more than one year 09 if hiring, reinstatement, or upgrading of an employee is inappropriate because a 10 vacancy does not exist, the employer's discriminatory practice rendered the 11 employee incapable of returning to work, or the relationship between the 12 employer and employee has so deteriorated as to make working conditions 13 intolerable; [,] restoration to membership in a labor organization; [, OR] admission 14 to or participation in an apprenticeship training program, on-the-job training program, 15 or other retraining program; or restoration of seniority; however, an order for back 16 pay or front pay must be reduced by the amount the employee could have earned 17 or could earn by making reasonably diligent efforts to obtain similar 18 employment; 19 (2) housing, the commission may order the sale, lease, or rental of the 20 housing accommodation to the aggrieved person if it is still available, or the sale, 21 lease, or rental of a like accommodation owned by the person charged in the 22 accusation [AGAINST WHOM THE COMPLAINT WAS FILED] if one is still 23 available, or the sale, lease, or rental of the next vacancy in a like accommodation, 24 owned by the person charged in the accusation [AGAINST WHOM THE 25 COMPLAINT WAS FILED]; the commission may award actual damages, which shall 26 include [, BUT NOT BE LIMITED TO,] the expenses incurred by the complainant for 27 obtaining alternative housing or space; for storage of goods and effects; and for 28 moving and [FOR] other costs actually incurred as a result of the unlawful practice or 29 violation. 30 * Sec. 7. AS 18.80.130(c) is amended to read: 31 (c) If the commission finds that a person charged in an accusation
01 [AGAINST WHOM A COMPLAINT WAS FILED] has not engaged in the 02 discriminatory practice [CONDUCT] alleged in the accusation [COMPLAINT], it 03 shall issue and cause to be served on the complainant an order dismissing the 04 complaint. 05 * Sec. 8. AS 18.80.130 is amended by adding a new subsection to read: 06 (f) The interest rate for an award under this section is determined in the 07 manner provided in AS 09.30.070. 08 * Sec. 9. AS 18.80.135(b) is amended to read: 09 (b) The commission may obtain a court order for the enforcement of any of its 10 orders by filing a complaint with the superior court in the judicial district in which the 11 unlawful practice [CONDUCT] is alleged to have occurred. 12 * Sec. 10. AS 18.80.140 is amended to read: 13 Sec. 18.80.140. Effect of compliance with order. Immediate and continuing 14 compliance with all the terms of a commission order is a bar to criminal prosecution 15 for the particular instances of discriminatory practice [CONDUCT] described in the 16 accusation issued under AS 18.80.120 [FILED BEFORE THE COMMISSION]. 17 * Sec. 11. AS 18.30 is amended by adding a new section to article 2 to read: 18 Sec. 18.80.147. Attorney fees and costs. (a) In an action brought by a person 19 under AS 22.10.020(i), a prevailing plaintiff shall be awarded costs as provided by 20 court rule and full reasonable attorney fees at the prevailing reasonable rate. 21 (b) Unless the action is found to be frivolous, in an action brought by a person 22 under AS 22.10.020(i), a prevailing defendant shall be awarded attorney fees and costs 23 as provided by court rule. If the action is found to be frivolous, the attorney fees to be 24 awarded to the defendant shall be full reasonable attorney fees at the prevailing 25 reasonable rate. 26 (c) In this section, "frivolous" means 27 (1) not reasonably based on evidence or on existing law or a 28 reasonable extension, modification, or reversal of existing law; or 29 (2) brought to harass the defendant or to cause unnecessary delay or 30 needless expense. 31 * Sec. 12. AS 18.80.270 is amended to read:
01 Sec. 18.80.270. Penalty. A person, employer, labor organization, or 02 employment agency, who or that wilfully engages in an unlawful discriminatory 03 practice [CONDUCT] prohibited by this chapter, or wilfully resists, prevents, 04 impedes, or interferes with the commission or any of its authorized representatives in 05 the performance of duty under this chapter, or who or that wilfully violates an order of 06 the commission, is guilty of a misdemeanor and, upon conviction by a court of 07 competent jurisdiction, is punishable by a fine of not more than $500, or by 08 imprisonment in a jail for not more than 30 days, or by both. 09 * Sec. 13. AS 18.80.300 is amended by adding new paragraphs to read: 10 (17) "complainant" means a person who is aggrieved by a 11 discriminatory practice prohibited by this chapter and who has filed a complaint as 12 provided in AS 18.80.100; 13 (18) "pay" means wages; salaries; commissions; amounts an employer 14 contributes to retirement, health, or other fringe benefit plans; and other forms of 15 remuneration paid to an employee for personal services. 16 * Sec. 14. AS 44.62.330(a) is amended by adding a new paragraph to read: 17 (46) State Commission for Human Rights, where procedures are not 18 otherwise expressly provided in AS 18.80. 19 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 20 read: 21 INDIRECT COURT RULE AMENDMENT. The provisions of AS 18.80.147, 22 enacted by sec. 11 of this Act, have the effect of changing Rule 82, Alaska Rules of Civil 23 Procedure, by requiring the award of full reasonable attorney fees in certain cases. 24 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 APPLICABILITY. This Act applies to all complaints filed on or after the effective 27 date of secs. 1 - 15 of this Act. 28 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 TRANSITION: REGULATIONS. The State Commission for Human Rights may 31 proceed to adopt regulations necessary to implement the changes made by this Act. The
01 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 02 effective date of the statutory change.