Legislature(2023 - 2024)GRUENBERG 120
04/26/2023 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB181 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 181 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 181-STATE COMMISSION FOR CIVIL RIGHTS
1:09:24 PM
CHAIR VANCE announced that the only order of business would be
HOUSE BILL NO. 181, "An Act renaming the State Commission for
Human Rights the Alaska State Commission for Civil Rights;
relating to removal of commissioners of the Alaska State
Commission for Civil Rights; relating to reports from the Alaska
State Commission for Civil Rights; relating to the definition of
'employer' for the purposes of the Alaska State Commission for
Civil Rights; and relating to local civil rights commissions."
1:09:46 PM
JAKE ALMEIDA, Staff, Representative Sarah Vance, Alaska State
Legislature, presented HB 181 on behalf the House Judiciary
Standing Committee, sponsor by request, chaired by
Representative Vance. He noted that the bill was introduced at
the request of the Alaska State Commission for Human Rights
(ASCHR). He gave an overview of the sectional analysis
[included in the committee packet], which read as follows
[original punctuation provided]:
Section 1: Amends AS 18.80.010 to rename the "State
Commission for Human Rights" to the "Alaska State
Commission for Civil Rights".
Section 2: Amends AS 18.80.020 by adding a new
subsection to allow the Governor to remove any
commissioner serving on the commission from office for
cause such as incompetence, neglect of duty, and
misconduct in office, and public statements and public
or private actions that undermine the commission's
work.
Section 3: Amends AS 18.80.060(a) by ensuring that the
commission's assessments regarding progress toward
equal employment opportunities, that are done once
every three years, is summarized in a report within 90
days of the Legislature convening and is available
electronically to the public as well.
Section 4: Amends AS 18.80.150 to direct the
commission to complete its annual report of the
preceding year's data on civil rights problems by
November 15th of each year, and make the report
electronically available to the public, and notify the
Legislature and the Governor of the report.
Section 5: Amends AS 18.80.290(a) to make a conforming
change regarding the name change of the commission for
municipalities.
Section 6: Amends AS 18.80.300(2) to make a conforming
change regarding the name change of the commission.
Section 7: Amends AS 18.80.300(5) to clarify that the
definition of "employer" does not include non-profits,
associations, social or fraternal entities under AS
10.20.005, religious associations and religious
corporations under AS 10.40.010, and for-profit
religious organizations AS 10.50.010.
Section 8 11: Makes conforming changes regarding the
name change of the commission.
CHAIR VANCE invited Mr. Corbisier to speak to the bill.
1:12:57 PM
ROB CORBISIER, Executive Director, Alaska State Commission for
Human Rights (ASCHR), gave invited testimony in support of HB
181. He opined that ASCHR's name was dated, explaining that the
name was most likely reflective of the 1940s, 1950s, and 1960s
era. He indicated that the name was a cause for confusion as to
the commission's jurisdiction. He shared several examples. He
shared his belief that changing the name to align with modern
linguistics would accomplish the mission of eliminating
perpetual discrimination. To that extent, the commission
formally endorsed the new name "Alaska State Commission for
Civil Rights."
1:16:23 PM
REPRESENTATIVE ALLARD asked whether Mr. Corbisier was familiar
with the legal definition of "human rights."
MR. CORBISIER stated that "human rights" was not defined in
Alaska Statutes.
REPRESENTATIVE ALLARD asked whether Mr. Corbisier had looked up
the common definition of "human rights."
MR. CORBISIER said he had reviewed the Universal Declaration of
Human Rights.
REPRESENTATIVE ALLARD shared her understanding that "human
rights" and "civil rights" meant the same thing. She recalled
that Mr. Corbisier had been advised against changing the
commission's name in the past, adding "I've never heard of
anybody misconstruing the title." She inquired about the cost
associated with the proposed name change.
MR. CORBISIER responded that the cost would be "nothing." He
reported that the website and two signs in the building would
need to be updated, as well as future publications. He added
that the commission was at the end of its current lease and was
looking to take over an existing lease space, which would
ultimately result in a net savings to the state. He expected
that new signage could be amortized as part of the buildout.
REPRESENTATIVE ALLARD provided examples of civil rights versus
human rights. She asked whether it was the commission's belief
that every person should be treated equally "based on the fact
that they're human."
MR. CORBISIER responded, "Absolutely."
REPRESENTATIVE ALLARD stated her opposition to the proposed name
change.
1:19:49 PM
REPRESENTATIVE EASTMAN asked whether "civil rights" would
capture voting and election rights.
CHAIR VANCE asked Mr. Corbisier to outline the statutory duties
of the commission in addition to answering Representative
Eastman's question.
1:21:07 PM
The committee took an at-ease from 1:21 p.m. to 1:25 p.m.
1:25:33 PM
CHAIR VANCE invited Mr. Corbisier to proceed with sharing the
commission's mission.
1:25:55 PM
MR. CORBISIER read the statutory purpose of the commission, per
AS 18.80.200, which read as follows:
Sec. 18.80.200. Purpose.
(a) It is determined and declared as a matter of
legislative finding that discrimination against an
inhabitant of the state because of race, religion,
color, national origin, age, sex, physical or mental
disability, marital status, changes in marital status,
pregnancy, or parenthood is a matter of public concern
and that this discrimination not only threatens the
rights and privileges of the inhabitants of the state
but also menaces the institutions of the state and
threatens peace, order, health, safety, and general
welfare of the state and its inhabitants.
(b) Therefore, it is the policy of the state and the
purpose of this chapter to eliminate and prevent
discrimination in employment, in credit and financing
practices, in places of public accommodation, in the
sale, lease, or rental of real property because of
race, religion, color, national origin, sex, age,
physical or mental disability, marital status, changes
in marital status, pregnancy or parenthood. It is also
the policy of the state to encourage and enable
physically and mentally disabled persons to
participate fully in the social and economic life of
the state and to engage in remunerative employment. It
is not the purpose of this chapter to supersede laws
pertaining to child labor, the age of majority, or
other age restrictions or requirements.
MR. CORBISIER continued to define the commission's mission per
AS 18.80.210, which read as follows:
Sec. 18.80.210. Civil rights.
The opportunity to obtain employment, credit and
financing, public accommodations, housing
accommodations, and other property without
discrimination because of sex, physical or mental
disability, marital status, changes in marital status,
pregnancy, parenthood, race, religion, color, or
national origin is a civil right.
1:27:48 PM
REPRESENTATIVE EASTMAN asked whether the right to vote was
considered a civil right.
MR. CORBISIER answered, arguably, yes; however, voting rights
would not be covered by the commission. He explained that
voting was a fundamental right; consequently, the government
could not discriminate against a person based upon his/her
membership in a protected class as it relates to voting. He
shared an example.
REPRESENTATIVE EASTMAN supposed that the name change would be a
step towards expanding the commission's scope to include
additional civil rights, such as voting rights. He asked
whether that was the commission's long-term goal.
MR. CORBISIER answered no. He argued that by changing "human
rights" to "civil rights", the scope of practice would be
restricted, as civil rights did not include the right to travel,
asylum, or freedom of speech, for example, all of which were
contained in the Universal Declaration of Human Rights.
1:30:03 PM
MR. CORBISIER resumed his discussion of provisions in the bill,
starting with the annual report date. He explaining that the
current reporting requirements may have worked in 1963 when the
commission was created. Now, however, the commission had five
business days to interpret and analyze all of the data for the
prior year, write the vignettes, send the report to a layout
editor, print the report, and deliver it to the legislative
library. Additionally, he pointed out that current statute
required 40 copies of the report to be provided to the
Legislative Affairs Agency (LAA) despite there being 60
legislators. He said the commission viewed the deadline as
unrealistic and made little or no effort to abide by it in the
last 40 years. In his time as executive director, Mr. Corbisier
said meeting the deadline was "simply impossible." He discussed
the annual assessment of the executive branch's progress on
equal employment opportunity, as required by statute,
highlighting its effectiveness. Nonetheless, scheduling a sit
down with the administration's cabinet members one week before
legislative session to analyze data was unrealistic, he said.
He explained that aligning the annual reports with the fiscal
year and changing the date to November 15 would allot four
months for production, even in an assessment year.
Additionally, it would fall after the election, allowing the
commission to notify both existing and newly elected legislators
of the report.
1:35:25 PM
REPRESENTATIVE EASTMAN contended that election results were
often announced after November 15.
MR. CORBISIER assured Representative Eastman that new
legislators would be properly informed [of the report].
1:36:14 PM
MR. CORBISIER discussed the printing requirements, conveying
that the legislative library did not want to be included in the
distribution chain any longer. Should HB 181 pass, an
electronic copy would be made available on the commission's
website and both the governor and the legislature would be
notified. He proceeded by highlighting a "hole" in nonprofit
jurisdiction, explaining that small nonprofits operating outside
the municipality of Anchorage could effectively discriminate
against an employee with impunity. He shared the example of an
administrator facing sexual harassment at a small nonprofit,
adding that the only recourse would be a private lawsuit
resulting in three weeks of backpay at most, which would not
cover the attorney fees. Those were the types of cases taken by
ASCHR, he said, noting that it wouldn't cost the victim of
discrimination anything, as the commission was a government
agency. He explained that the U.S. Equal Employment Opportunity
Commission (EEOC) had jurisdiction over nonprofits with at least
15 employees, whereas the Anchorage Equal Rights Commission had
jurisdiction over nonprofits within the municipality. He noted
that the statutory exclusion for nonprofits removed many
employers from ASCHR's jurisdiction. He said the commission
routinely received referrals from the EEOC on co-jurisdictional
cases. For each case, the commission received $800 from EEOC.
For that reason, expanding the nonprofit jurisdiction would
allow the commission to capture additional federal revenue, he
emphasized.
1:42:12 PM
REPRESENTATIVE EASTMAN recalled the example shared by Mr.
Corbisier of the sexual assault victim who only stood to gain
three weeks of backpay. He asked whether the commission could
effectively provide pro-bono legal services on that type of
case.
MR. CORBISIER clarified that the commission was not required to
have an attorney-client relationship with its complainants. To
the extent that the complainant's interest was aligned with
state policy, ASCHR could take the lead on the case. He noted
that complainants had the right to obtain their own attorney
while ASCHR was taking the case. He added that the commission
had the authority to obtain "make-whole relief," which was
effectively compensatory damages.
REPRESENTATIVE EASTMAN requested the commission's definition of
"employee".
MR. CORBISIER cited AS 18.80.300(4), which defined "employee" as
an individual employed by an employer, not including an
individual employed in the domestic service of any person. He
defined "employer" per subsection (5).
1:44:25 PM
REPRESENTATIVE EASTMAN asked for the definition of "employed".
MR. CORBISIER said the commission would refer to the common
definition of "employed".
REPRESENTATIVE EASTMAN asked whether a volunteer would be
considered an employee.
MR. CORBISIER answered no.
REPRESENTATIVE EASTMAN asked whether a volunteer who was
reimbursed for travel expenses would be considered an employee.
MR. CORBISIER said that person would still be considered a
volunteer.
1:45:52 PM
REPRESENTATIVE GRAY referenced the definition of "employer" on
page 2 of Resolution 2022-4 [included in the committee packet]
and asked whether Section 7 of the bill was fulfilling the
intent of the resolution.
MR. CORBISIER explained that Resolution 2022-4 was asking the
legislature to change the definition of employer in AS 18.80 to
exclude only nonprofit organizations that are not social welfare
clubs or social and recreational clubs. Effectually, the
resolution was requesting the legislature to define "employer"
under AS 18.80.300(5) as "a person, including the state and a
political subdivision of the state, who has one or more
employees in the state but does not include a club that is
exclusively social, or a fraternal, charitable, educational, or
religious association or corporation, if the club, association
or corporation is not organized for private profit." The
definition would encompass all nonprofits, including a "Jewish
only" fraternity, for example. He said ASCHR was asking the
legislature to add an affirmative defense for unlawful
employment practices under AS 18.80.220 that would allow a
religious corporation, association, educational institution, or
society, with respect to the employment of individuals of a
particular religion, to perform work connected with the carrying
on by such corporation, association, institution, or society of
its activities; additionally, it would cover employees who were
hired to engage in activities that were ecclesiastical,
spiritual, or religious, and whose job responsibilities include
furthering the study or advancement of religion. He noted that
the language was taken directly from Title 7 of the Civil Rights
Act. He shared an example.
1:50:41 PM
REPRESENTATIVE GRAY considered a scenario in which a Catholic
nonprofit organization terminated the employment of an
individual who was Jewish and asked whether that case would be
under the commission's jurisdiction.
MR. CORBISIER responded that if a parochial school had a
janitorial position with the duties of cleaning the floors and
bathrooms only, the position would not receive the affirmative
defense because the employee was not hired to engage in
activities that were ecclesiastical, spiritual, or religious;
nor did the job responsibilities further the advancement of
religion. He cited federal case law on the matter. Ultimately,
he indicated, the job description and the person's function
within the entity, as well as the entity itself, would be
significant factors.
REPRESENTATIVE GRAY shared a personal anecdote and asked whether
the affirmative defense would apply to a church that terminated
the employment of a choir singer who was not of the same faith.
MR. CORBISIER answered yes, the religious association would be
entitled to the affirmative defense.
REPRESENTATIVE GRAY directed attention to Section 7 and asked
whether the language would apply to a food bank.
MR. CORBISIER stated that as currently written, Section 7 did
not accomplish ASCHR's intent.
1:57:16 PM
REPRESENTATIVE GRAY asked Mr. Corbisier to clarify ASCHR's
intent.
MR. CORBISIER said updated language had been provided to Chair
Vance. The new language would redefine "employer" per the
language provided in Resolution 2022-4; additionally, it would
add a new subsection (e) under AS 18.80.220, which would create
an affirmative defense for religious entities that hire an
employee for ecclesiastical duties.
REPRESENTATIVE GRAY sought to confirm that employees performing
non-ecclesiastical duties would have protection under the law.
MR. CORBISIER answered yes, under the commission's proposed
language.
REPRESENTATIVE GRAY considered a scenario wherein attending
church on Sunday was a job requirement and asked whether the
affirmative defense could be applied if that requirement was not
fulfilled.
MR. CORBISIER did not know the answer.
2:00:13 PM
REPRESENTATIVE C. JOHNSON inquired about the cost of managing
each case.
MR. CORBISIER said it depends on the case. He reminded the
committee that ASCHR received $800 from the EEOC for performing
even a minimal amount of work on a case. He shared several
examples.
REPRESENTATIVE C. JOHNSON was unsure whether $800 was worth the
workload brought on by the additional cases of referral.
MR. CORBISIER confirmed that the commission had the capacity to
take on additional cases in its existing budget. He admitted
that ASCHR's caseload "fell off a cliff" during the COVID-19
pandemic because many people weren't working during that time.
He related that the bill could reduce the draw on the general
fund (GF), adding that either way, additional federal receipts
would be acquired. He noted that some cases did not require
much time and that most cases were closed out due to a lack of
substantial evidence on the complainant's behalf.
REPRESENTATIVE C. JOHNSON requested that Mr. Corbisier follow up
with an average cost per case.
2:06:40 PM
REPRESENTATIVE GROH asked whether the proposed legislation would
protect a religious charity organization that paid lawyer wages
to employees of a specific national origin with similar
qualifications as other employees.
MR. CORBISIER said, that would be discrimination. He reiterated
that currently, nonprofits were untouchable in terms of any
employment matters.
REPRESENTATIVE GROH considered a hypothetical scenario in which
an employee who became disabled on the job while working for a
religious corporation was fired because the insurance was too
expensive. He asked whether that act would be protected under
the proposed law.
MR. CORBISIER said should the bill pass with new language
requested by the commission, the employer would be entitled to
the affirmative defense if the employee was hired for
ecclesiastical, spiritual, or religious purposes. He confirmed
that the employer could terminate that employee because of the
disability in that scenario.
REPRESENTATIVE GROH asked whether the change in the definition
of "employer" would allow a religious childcare provider to
legally refuse an applicant with a speech impediment if the
individual was qualified to care for children.
MR. CORBISIER answered yes, under the commission's proposed
language.
2:09:15 PM
MR. CORBISIER continued his overview of the bill. He said the
last issue of significance was the for-cause removal provision.
He recalled a real-life example in which the governor removed
several commissioners through the "black rifles matter" sticker
controversy. For that reason, the commission believes that a
for-cause removal provision was needed. He emphasized the
importance of ASCHR remaining apolitical to avoid its
weaponization as a political arm of the administration. He
clarified that this was not an attempt to "poke a thumb in the
eye" of the governor. The for-cause removal provision was taken
directly from Alaska Oil and Gas Conservation Commission (AOGCC)
removal statute and would provide due process rights for the
removal of a commissioner.
2:12:37 PM
REPRESENTATIVE EASTMAN referred to page 1, line 13 through page
2, line 14, and asked how one would define the scope of
"undermining the commission's work."
MR. CORBISIER said that was open to interpretation. He
reiterated that the language would provide an opportunity for a
commissioner who was being targeted to publicly defend
himself/herself in a tribunal if the attack was for policy
differences related to politics.
REPRESENTATIVE EASTMAN asked what a tribunal consisted of.
MR. CORBISER cited the AOGCC statute, which was most recently
tested with the removal of Hollis French. He explained that Mr.
French, as a commissioner, had the opportunity to retain counsel
and present counter evidence in his tribunal after the
Department of Law (DOL) presented its evidence in front of the
third-party hearing officer. The hearing officer then
considered the charges, wrote up findings, and presented them to
the Office of the Governor. He suspected that the Office of the
Governor would take a similar tactic to implement [Section 1] of
HB 181, should it pass.
REPRESENTATIVE EASTMAN asked whether the tribunal proceedings
were available to members of the public.
MR. CORBISIER answered that the provision in question was not
confidential, nor would not fall within executive session under
the Open Meetings Act. He recalled that the Hollis French
tribunal was open to the public; however, he was not certain.
2:17:06 PM
REPRESENTATIVE GRAY asked where the term "tribunal" was located
in the bill.
MR. CORBISIER clarified that the term was not used in the bill.
REPRESENTATIVE GRAY sought to verify that the governor would
decide whether a commissioner had committed misconduct and that
individual would have the opportunity to publicly defend
himself/herself against the accusation. He asked who would
decide whether the governor made the right decision.
MR. CORBISIER answered, arguably, the public. He reminded
Representative Gray that in Mr. French's tribunal, a private
attorney was obtained to be the hearing officer tasked with
making a judgment on the findings. The governor was then
responsible for making a decision based on those findings. He
described the tribunal as another opportunity for a check and
balance on the agency and to ensure that the commission's work
remained politically independent.
REPRESENTATIVE GRAY asked how the public could express its
opinion on the findings of misconduct.
MR. CORBISIER, in response, said through expressing their
approval or disapproval to the Office of the Governor, rather
than to the commission.
2:20:54 PM
REPRESENTATIVE GRAY asked whether any adverse actions could be
taken if the governor's accusations of misconduct were found to
be improper or without merit.
MR. CORBISIER responded that a provision could be added to
repeal the decision to the Alaska Superior Court.
CHAIR VANCE asked Mr. Corbisier to describe the current process
for removing a commissioner from the commission.
MR. CORBISIER answered that there was no provision in existing
statute. He reported that a prior court case supported the
argument that a removed commissioner could challenge the
governor's decision; however, because ASCHR's commissioners were
unpaid volunteers, there was no incentive for them to involve
themselves in a court challenge.
CHAIR VANCE announced that HB 181 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 181 - Sponsor Statement.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| HB - 181 v.A.PDF |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| HB 181 - Sectional Analysis.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| ASCHR 2022 Annual Report.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 HR2022 |
| HB 181 - Resolution-2022-3-Signed.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| HB 181 - Resolution-2022-4-Signed.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| HB 181 - Resolution-2022-8-Signed.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |
| HB 181 - Resolution-2022-10-Signed.pdf |
HJUD 4/26/2023 1:00:00 PM |
HB 181 |