Legislature(2023 - 2024)BARNES 124
03/27/2023 03:15 PM House LABOR & COMMERCE
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| Audio | Topic |
|---|---|
| Start | |
| HB17 | |
| HB99 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 17 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 99 | TELECONFERENCED | |
HB 99-DISCRIMINATION: GENDER ID.;SEXUAL ORIENT.
3:37:19 PM
CHAIR SUMNER announced that the final order of business would be
HOUSE BILL NO. 99, "An Act relating to and prohibiting
discrimination based on sexual orientation or gender identity or
expression."
3:38:41 PM
REPRESENTATIVE PRAX questioned whether the proposed legislation
would allow the Alaska State Commission for Human Rights (ASCHR)
to hear new cases.
3:39:21 PM
ROBERT CORBISIER, Executive Director, Alaska State Commission
for Human Rights, responded that this is partially correct.
Referring to Bostock v. Clayton County, 590 U.S. 644 (2020), he
stated that when the Supreme Court of the United States first
issued this decision, ASCHR immediately began taking employment
cases. He stated that the Alaska Department of Law (DOL) gave
guidance that all five subject matters could be addressed by
ASCHR, until [Alaska's] attorney general (AG) provided an update
August of last year. After this ASCHR did not stop taking
employment cases, but it stopped taking cases in the other four
areas. He stated that the proposed legislation would align
state law with the Supreme Court's decision, allowing ASCHR to
take cases in all five subject matters again.
REPRESENTATIVE PRAX, with a follow-up question, expressed
uncertainty concerning the sequence of events. He questioned
why Alaska's AG first agreed, and then did not.
MR. CORBISIER expressed uncertainty concerning this, as he was
only briefly informed of the AG's decision.
3:42:53 PM
MARGRET BERGERUD, Legislative Council, Legislative Legal
Services, Legislative Affairs Agency, stated that she could not
add to the point per the internal decision-making process.
REPRESENTATIVE PRAX, with a follow-up question, asked whether
there was a written redaction by DOL or whether the decision was
based on a phone call.
MS. BERGERUD expressed the understanding that there was an email
between the AG's office and ASCHR, but it was not an official
opinion, and the redacted version was released after this.
REPRESENTATIVE PRAX questioned whether the redacted
correspondence is available.
3:44:34 PM
The committee took an at-ease from 3:44 p.m. to 3:45 p.m.
3:45:17 PM
REPRESENTATIVE JENNIE ARMSTRONG, Alaska State Legislature, as
prime sponsor of HB 99, expressed the understanding that Bostock
v. Clayton County was limited to employment discrimination based
on sex orientation or gender identity; therefore, it is
inherently based on sex. She stated that some states had
decided that any place [in the law] with language concerning sex
should encompass this. Furthermore, sex is in the ASCHR's
language, but it was communicated [from the AG's office] that no
other areas beside employment should be covered. If other areas
are to be covered, this would need to be in statute.
REPRESENTATIVE PRAX, with a follow-up question, asked whether
there is another federal law, other than Title VII of the Civil
Rights Act of 1964 ("Title VII"), that ASCHR relies on.
3:46:24 PM
MR. CORBISIER responded that the ASCHR looks at Americans with
Disabilities Act (ADA) for disability claims and the U.S. Equal
Employment Opportunity Commission Council (EEOC) for employment
claims. He stated that the Supreme Court of Alaska has
repeatedly affirmed that the interpretation of the statute
should be based on the framework of Title VII. He stated that
ASCHR has a contract with EEOC to investigate Title VII cases in
Alaska, as these cases are considered co-jurisdictional. He
added that federal funding is being received for each case that
is resolved.
MR. CORBISIER, in response to a series of follow up questions,
stated that [not all] cases involving EEOC are reimbursed by the
federal government; however, he clarified that 80 percent of
ASCHR's cases are employment related, [which are reimbursable by
the federal government]. In regard to the proposed legislation,
he answered that ASCHR would not be reimbursed by the federal
government for any public accommodation cases. He continued
that Title IX of the Civil Rights Act of 1964 ("Title IX"),
which concerns education, is outside of ASCHR's jurisdiction.
He stated that ASCHER would have jurisdiction over some
educational institutions, but the commission has not had any
Title IX cases.
3:50:45 PM
MS. BERGERUD added that Title IX addresses education
institutions that receive federal funding. She continued that
in regard to schools being an employer, ASCHR would have
jurisdiction under Title VII.
3:51:47 PM
REPRESENTATIVE PRAX asked whether ASCHR would have jurisdiction
in a discrimination case if a member of the general public came
into a school building, unrelated to education or sports.
MR. CORBISIER answered that it would have jurisdiction; however,
it would depend on the facts of the individual case.
3:52:48 PM
REPRESENTATIVE CARRICK, concerning the fiscal note, questioned
whether ASCHR would be able to handle the new mandates in the
proposed legislation with existing staff and financial
resources.
MR. CORBISIER responded in the affirmative. He stated that
ASCHR had already been doing all of these cases from December
2020 until August 2022. In response to a follow-up question, he
expressed uncertainty concerning the number of cases during this
period because the lesbian, gay, bisexual, transgender, queer or
questioning (LGBTQ) cases were not independently tracked. He
added that these cases all fell under "sex discrimination."
3:54:06 PM
REPRESENTATIVE RUFFRIDGE, concerning putting LGTBQ
discrimination cases under the general heading of "sex,"
questioned whether the proposed legislation would ensure that
this perspective would continue.
MR. CORBISIER responded that this is an accurate assessment.
REPRESENTATIVE RUFFRIDGE, with a follow-up question, referred to
the definitions HB 99 would put into statute linked with Title
VII. He expressed uncertainty on the linkage and questioned how
it would be connected to "blockbusting."
MS. BERGERUD responded that the proposed language in Section 1
would add "sex discrimination" to the protected classes listed
under blockbusting, as the current law does not prohibit this.
In response to a follow-up question, she stated that there is
not a link to Title VII, but the intention of the proposed
legislation is to take the language from the federal judge's
decision and codify the definition in state statute, and by
doing this, it would closely match federal regulation. She
added that when the legislation for human rights was enacted in
Alaska, it was written to follow the format based on Title VII,
and this is the connection.
3:58:53 PM
REPRESENTATIVE PRAX, referring to deleted language from Section
1 of the proposed legislation, questioned how this would narrow
the application of this section. He questioned the reasoning
behind this decision.
3:59:33 PM
TRISTAN WALSH, Staff, Representative Jennie Armstrong, Alaska
State Legislature, on behalf of Representative Armstrong, prime
sponsor, answered that the referenced change is a conforming
change from the version of the bill from the prior session. He
expressed the understanding that the change was made because of
legal drafting standards. He deferred to Ms. Bergerud.
MS. BERGERUD confirmed that this was a conforming change;
however, the language could be changed back if the committee
requested this.
REPRESENTATIVE PRAX questioned whether the added definitions in
Section 2 would broaden the definition of "sex" in regard to AS
18.80.
MS. BERGERUD responded in the affirmative.
REPRESENTATIVE PRAX questioned whether any current legal cases
have been decided to help understand the application of the
definitions in Section 2.
MS. BERGERUD responded that there has not been any local or
state guidance in the law on these definitions. She offered the
understanding that the federal court system has been addressing
this issue because Bostock v. Clayton County is a relatively new
decision. In response to a follow up concerning other cases,
she responded that there have been other federal cases; however,
she expressed uncertainty about cases concerning public
accommodations which would provide substantive guidance. In
summary, she stated that there are many cases "winding their
way" through the court system across the country, but no
guidance has been given.
MR. WALSH, concerning the language in Section 2, stated that
this was adopted when the bill was before the prior session. He
continued that language concerning the definition of "sex" and
"sexual orientation" was also added to the bill, because past
definitions had been limited and outdated.
4:05:50 PM
REPRESENTATIVE PRAX, in a follow up, asked whether the
definitions of "sex" and "sexual orientation" in Merriam
Webster's Dictionary has been used by the courts.
MR. WALSH responded that traditionally this dictionary, along
with Black's Law Dictionary, has been used. He deferred to Ms.
Bergerud.
MS. BERGERUD responded that in the statutory interpretation the
court system would look for the plain meaning of the language,
and this would be what a group of relevant individuals think a
word means. After this, these dictionaries and others would be
referred to in order to find a common thread of meaning. She
stated that the courts do not have a definitive way of doing
this.
REPRESENTATIVE PRAX expressed the concern that language changes
over time and expressed doubt that there is a common
understanding of these definitions. He questioned the attire
concerning "drag" and expressed the understanding that it would
be "garish."
4:09:09 PM
REPRESENTATIVE FIELDS, concerning proper attire at the
workplace, questioned whether employers would be able to
maintain expectations. Notwithstanding a person's sexual
orientation, he questioned the acceptance of "drag" attire in
the workplace.
MR. CORBISIER responded that the expectation of proper attire in
the workplace would be reasonable. He gave the example that
some workplaces do not allow hoodies or jeans, which are
considered gender neutral pieces of clothing.
MR. WALSH noted, for the record, that "drag" is typically
described as an "art form" and not normally a workplace
consideration. If an employee comes out as transgender, and the
employee's attire becomes an issue with the employer, this would
be a verbatim case of Bostock v. Clayton County, where it is
directly addressed.
4:12:42 PM
REPRESENTATIVE SADDLER question whether there is a finite number
of gender identities.
MR. CORBISIER expressed the opinion that the answer is no.
REPRESENTATIVE SADDLER suggested that this is then subjective.
MR. CORBISIER responded that there would be an objective test,
as in Bostock v. Clayton County.
REPRESENTATIVE SADDLER expressed the understanding that Mr.
Corbisier's answers were contradictory.
MR. CORBISIER clarified that there is not a finite universe of
gender identities; however, there still would be an objective
test. He offered the example of a female employee married to a
male; however, if the same female is married to a woman, and the
employer lets the employee go because of this, this would be a
sex-based discrimination.
REPRESENTATIVE SADDLER posed that if there is no finite universe
of gender identity, then anybody can assert that an identity
exists; when an individual is treated differently because of
this [there could be a discrimination case]. He questioned
whether this is a fare statement.
MR. CORBISIER concurred with the statement. He further
explained by comparing this to the idea that there is no finite
universe of race for humans, with every race being a protected
class. He added that every single human being is a member of a
protected class that is their race.
REPRESENTATIVE SADDLER surmised, "We are all special."
4:15:38 PM
REPRESENTATIVE FIELDS, in response to the discussion, suggested
that for discrimination cases, it is not what is the gender or
race, rather there must be proof with evidence of discrimination
because of this existence of the gender or race. He argued that
this is the key point.
MR. WALSH, addressing the topic, stated that a series of tests
were created in result of Bostock v. Clayton County. He
explained that these tests require a high bar, and they would be
used to examine other cases being made. He gave an example.
4:17:31 PM
REPRESENTATIVE PRAX provided an example of an employee not
removing a tongue stud when repeatedly asked by the employer,
and subsequently the employee was fired. He questioned whether
this was discrimination.
CHAIR SUMNER, referring to Bostock v. Clayton County, expressed
the opinion that if the same action had been taken with a female
employee, it would not be discrimination.
REPRESENTATIVE PRAX expressed concern over this example because
there may not be another employee to compare this with.
4:20:52 PM
REPRESENTATIVE CARRICK requested an example which would
illustrate the required burden of proof for a case to be
pursued. She suggested that it would be a high bar for ASCHR to
take on a case.
MR. CORBISIER stated that any details of cases which are not in
the annual report cannot be discussed because of the law
concerning public records. In general, he stated he can
describe the process and the evidentiary standards. He stated
ASCHR is required on a jurisdictional basis to take in any case
presented which has been articulated. Once evidence has been
presented, it will be determined if there is substantial
evidence present. He stated that the court has said that
substantial evidence lies between reasonable suspicion and
probable cause, with probable cause being at 50 percent.
However, if the case is deemed to have substantial evidence,
this would not mean it will go to trial, because if it does go
to trial it would need to be proved by a preponderance of
evidence.
4:26:27 PM
MR. WALSH, concerning Representative Prax's previous question,
answered that dress codes can be expected by employers.
Businesses would be in violation of Bostock v. Clayton County
when a trait has been related to the individual's sex and the
termination of employment. He quoted from the decision and
explained the "but-for" test. He stated that, in other words,
if one aspect [of an individual's sex] changes the outcome of
the scenario, then a "but-for" cause has been found.
4:28:55 PM
The committee took an at-ease from 4:28 p.m. to 4:34 p.m.
4:34:13 PM
REPRESENTATIVE WRIGHT questioned whether there are mechanisms in
place for a fraudulent claim of sex discrimination.
MR. CORBISIER responded that the investigation would reveal this
type of fraud. He stated that this applies to all complainants.
He continued that 90 percent of cases presented to ASCHR end up
with no substantial evidence. He added that all the cases can
be appealed. In response to a follow-up question, he stated
that when circumstances merit it, there can be an award of fees.
4:37:13 PM
REPRESENTATIVE ARMSTRONG, with closing comments, related a story
of an Alaskan transgender teenager, who had the question, "Why
don't people want us to be happy? Could you find that out for
me." She stated that the proposed legislation would be the
first step in the answer to this question. She continued by
remarking that making Alaska a place where people feel welcome
would help businesses, military families, and young adults.
4:38:37 PM
REPRESENTATIVE RUFFRIDGE moved to report HB 99 out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, HB 99 was reported out of the
House Labor and Commerce Standing Committee.