Legislature(2003 - 2004)
04/01/2004 03:35 PM Senate STA
| Audio | Topic |
|---|
* 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
CHAIR GARY STEVENS announced SB 354 to be up for consideration
and noted that the bill was heard previously.
SCOTT NORDSTRAND, Deputy Attorney General, Civil Division,
Department of Law (DOL), recapped previous testimony and the
concerns expressed by the Human Rights Commission about some of
the provisions of the bill.
He stated that it's important for the State to talk about the
procedures that are used before the Human Rights Commission.
With that in mind, he said he would walk members through the
process so they would understand what the bill does in terms of
the process.
If someone feels that they've been discriminated against they
may file a complaint with the commission. The commission
investigates the complaint and ultimately produces a finding of
whether or not there was substantial evidence of discrimination.
If substantial evidence is found, the next step is conciliation.
This is a mediation process in which the commission tries to use
a professional to bring the two parties together to work for a
solution. If that is unsuccessful, a failure of conciliation
occurs and the commission director would prepare an accusation.
That is like a complaint in a lawsuit. Discovery would follow
and an attorney would be assigned who would represent the
director in advocating on behalf of the person who may have been
discriminated against. The employer often times hires a lawyer
and the case goes forward in much the same way that a lawsuit
would. Ultimately there would be a hearing before a hearing
officer. The changes are procedural, but they're important to
the participants, he said.
In the 1995 Fish and Game v Meyer case the Alaska Supreme Court
was second-guessing how much evidence constitutes substantial
evidence. They concluded that the evidence had to be "completely
lacking in merit," which is a very low threshold.
MR. NORDSTRAND said that tied the commissions' hands because
they couldn't exercise good judgment in terms of which cases to
take to judgment. If they have to take every case forward, no
matter how small the evidence, the burden is enormous and the
system is backlogged. This bill, he said, gives the executive
director the discretion to dismiss a claim for very specific
reasons. The Human Rights Commission is supportive of that, he
assured members.
Next, he said, there is a procedural aspect to the bill that is
particularly important to employers. If a complaint is filed
against an employer, they might spend thousands of dollars on an
attorney simply to respond to the complaint. Currently the
system doesn't allow motions for summary judgment before the
commission and this bill sets up a system to allow that.
Sometimes, after the accusation stage the claims or charges
change. Under the current system, the commission may amend the
complaint and add the other charge. However, in the amendment
process the substantial evidence requirement is bypassed. In
this bill, he said, if you add a substantively new claim you
must go back and make sure there is a finding of new evidence
before it can be added to the accusation.
SENATOR COWDERY asked if there is a method for the employer to
recover attorney fees.
MR. NORDSTRAND said there is a statutory provision about the
commission awarding attorney fees, but it is seldom done. He
explained that it's the director's representative in the form of
a human rights advocate - a state attorney presenting the case
and the employer has a defending attorney. If attorney fees were
awarded to an employer, they would have to come from the
commission or the State. He wasn't aware of a case where that
happened.
CHAIR GARY STEVENS asked if his office and the Human Rights
Commission had come to agreement on most of the issues raised
previously.
MR. NORDSTRAND replied there were three disputed issues. The
commission wanted to change language on how you define whether
you have reasonably mitigated your damages. The commission
wanted to use "reasonably diligent" and the DOL wanted
"reasonable and diligent." DOL conceded the difference.
The second disagreement was how to amend the complaint and under
what standard. DOL proposed that you couldn't amend the
complaint without "good cause." The commission prefers that you
amend "reasonably and fairly." DOL conceded that difference as
well.
Still in dispute is the front pay issue. DOL proposes to limit
front pay to two years because those are speculative damages.
Frankly, he said, there is no agreement on that issue and it's
up to the Legislature to decide whether or not that's good
policy. The administration's position is that two years is a
fair remedy. In conclusion he said the commission's remedial
powers are not all encompassing. As it stands, the commission
cannot order punitive damages or emotional distress damages as
you could if the case were taken to court. "All we're saying is
one other limitation. If you go to the system where the State
provides the lawyer, provides the process and the employer has
no hope of recovering any attorney fees even if they win, let's
limit it to two years."
CHAIR GARY STEVENS asked where "reasonable and diligent" is
addressed.
MR. NORDSTRAND pointed out that it's in Section 6 at the bottom
of page 4.
CHAIR GARY STEVENS asked Paula Haley or Lisa Fitzpatrick whether
they agreed with the change.
LISA FITZPATRICK, Human Rights Commission, said she agreed on
the first issue.
CHAIR GARY STEVENS asked for an amendment to reflect the change.
SENATOR COWDERY motioned to amend SB 354 on page 4, line 31
deleting the words "reasonable and diligent" and inserting
"reasonably diligent." There being no objection amendment 1
passed.
CHAIR GARY STEVENS asked where the second issue was located in
the bill.
MR. NORDSTRAND said that relates to the standards for amending a
complaint found on page 3, line 27. Delete "showing of good
cause" and insert "reasonably and fairly" between "be" and
"amended" in the same sentence.
CHAIR GARY STEVENS asked for a motion.
SENATOR COWDERY motioned to adopt amendment 2 on page 3, line
27. Delete the first sentence in Section 5 (c) and insert, "An
accusation may be reasonably and fairly amended by the
commission." There being no objection, it was so ordered.
CHAIR GARY STEVENS asked for the location of the third issue,
which was related to the two year front pay issue.
MR. NORDSTRAND said that is on page 4, line 23.
CHAIR GARY STEVENS asked Ms. Fitzpatrick to comment.
MS. FITZPATRICK advised that the Human Rights Commission has
discussed the issue and has voted against putting a limitation
on the number of years or the amount of time that front pay may
be awarded. Front pay is an infrequently used but valuable
remedy that hasn't presented a problem, she said.
She agreed with Mr. Nordstrand that it is inherently somewhat
speculative, but nationally the courts recognize it as a remedy
that is available to litigants in civil rights cases. Even there
it is rarely invoked, but it needs to be available.
CHAIR GARY STEVENS recapped the commission's position.
SENATOR COWDERY opined that two years is too much and he would
support an amendment for one year.
CHAIR GARY STEVENS asked Mr. Nordstrand to comment.
MR. NORDSTRAND stated that three of the seven commissioners
supported the two year limitation. "I don't think this is out of
the mainstream in terms of a result," he said. He pointed out
that if there were a particularly egregious case, the employee
could go the courts to recover more. These are commission
remedies and all other remedies would be available in court.
CHAIR GARY STEVENS summarized that the Human Rights Commission
prefers no limit to front pay and the Department of Law suggests
a two year limit and Senator Cowdery believes a one year limit
is sufficient.
SENATOR STEDMAN said he wouldn't object to an amendment from
Senator Cowdery.
SENATOR COWDERY made a motion to adopt amendment 3 on page 4,
line 23 deleting "two years" and inserting "one year" to address
the front pay issue. There being no objection, it was so
ordered.
CHAIR GARY STEVENS asked if there were any further issues to
address.
MS. FITZPATRICK stated that the commission wasn't in full
agreement with part of Section 4 relating to administrative
dismissal for certain enumerated reasons. On page 3, line 7 they
suggest inserting "timely" before "initiating" or deleting all
of line 7. As written the option to go forward in another forum
is misleading to the layperson because there are time
constraints on actions.
CHAIR GARY STEVENS asked Mr. Nordstrand to respond.
MR. NORDSTRAND expressed the concern that placing a warning in
statute would create a statutory inner-connection that wouldn't
work very well. This doesn't mean that the commission couldn't
or shouldn't warn people of this in their process, he said,
because they should let it be known that there is a statute of
limitations.
SENATOR COWDERY remarked that he didn't like the fact that the
employer isn't able to recovery expenses even if they win. Even
if you win you lose, he said. He asked if there was a remedy for
that.
MR. NORDSTRAND said there is a provision in AS 18.80.130 (e) for
that. He read: "The commission may order payment of reasonable
expenses, including reasonable attorney fees to any private
party before the commission when the commission, in its
discretion, determines the allowance is appropriate." That's
honored by the exception more than the rule, he said, and it's
unlikely that there is much impetus for the commission to award
attorney fees against itself for losing the case. To fix that,
you'd have to change the language or devise an alternative.
CHAIR GARY STEVENS asked Ms. Fitzpatrick for a comment.
MS. FITZPATRICK said she wasn't familiar with the language and
deferred to Paula Haley.
PAULA HALEY, Human Rights Commission staff, informed members
that the provision has been invoked rarely in her sixteen year
tenure.
CHAIR GARY STEVENS announced his preference was to send the bill
on to the Judiciary Committee and they could address that issue.
SENATOR COWDERY agreed, but asked the Department of Law to
consider his concern.
MR. NORDSTRAND asked whether he wanted something prepared for
that committee.
SENATOR COWDERY stated that he would like the issue addressed in
this bill if possible.
MR. NORDSTRAND agreed to assist.
CHAIR GARY STEVENS asked for a motion to move the bill as
amended.
SENATOR COWDERY made a motion to move CSSB 354(STA) from
committee with individual recommendations and attached fiscal
note. He asked for unanimous consent. There being no objection,
it was so ordered.
| Document Name | Date/Time | Subjects |
|---|