SB 354: "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; making conforming amendments; and providing for an effective date."
00 SENATE BILL NO. 354 01 "An Act relating to complaints filed with, and investigations, hearings, and orders of, 02 the State Commission for Human Rights; making conforming amendments; and 03 providing for an effective date." 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 no later than 180 days after the alleged 08 discriminatory practice or, for a continuing discriminatory practice, no later than 180 09 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 a discriminatory practice under this 16 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. Any agreement reached under this 22 section 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 for administrative convenience. (a) At any time 25 before the issuance of an accusation under AS 18.80.120, the executive director may 26 dismiss without prejudice a complaint for administrative convenience if the executive 27 director determines, in the executive director's discretion, that the complainant's 28 objection to a proposed conciliation agreement is unreasonable; the complainant is 29 unavailable or unwilling to participate in a hearing; relief is precluded by the absence 30 of the person alleged to have engaged in the discriminatory practice; a hearing will not 31 benefit the complainant; the person aggrieved by the discriminatory practice has
01 initiated or wants to initiate an action or proceeding in another forum based on the 02 same facts; a hearing will not represent the best use of commission resources; a 03 hearing will not advance the purposes stated in AS 18.80.200; the probability of 04 success of the complaint on the merits is low; or proceeding to a hearing will not serve 05 the public interest. 06 (b) Dismissal under this section does not prevent a complainant from 07 (1) initiating an action or proceeding in another forum; or 08 (2) filing a new complaint under AS 18.80.100 that resolves the 09 grounds for the dismissal under (a) of this section. 10 * Sec. 5. AS 18.80.120 is repealed and reenacted to read: 11 Sec. 18.80.120. Hearing. (a) If informal efforts under AS 18.80.110 to 12 eliminate or remedy the alleged discriminatory practice are unsuccessful and the 13 executive director determines, in the executive director's discretion, to refer the 14 complaint for hearing, the executive director shall issue an accusation based on the 15 investigator's determination of substantial evidence and serve the person charged in 16 the accusation and the complainant with notice of the referral and a copy of the 17 accusation. The executive director's decision to refer the complaint to hearing is not 18 reviewable by the commission under this chapter. The location of the hearing is the 19 commission office unless the commission designates another location. The executive 20 director, or the executive director's designee, presents the case in support of the 21 accusation before the commission. The person charged in the accusation may file a 22 written answer and may appear at the hearing, with or without counsel, and submit 23 evidence. 24 (b) The commission shall follow the procedures in the Administrative 25 Procedure Act, AS 44.62.330 - 44.62.630, except as otherwise provided in this 26 chapter. 27 (c) An accusation may be amended by the commission only upon a showing 28 of good cause. An amendment to name a different discriminatory practice must be 29 supported by substantial evidence, and the discriminatory practice must be referred for 30 conciliation as provided in AS 18.80.110, before a hearing may proceed. 31 (d) In a hearing on an accusation, each element of an accusation or defense
01 must be proven by a preponderance of the evidence. 02 (e) At any time after the issuance of an accusation, the executive director or 03 the person charged in the accusation may petition for a summary decision on the 04 accusation. The commission shall grant a petition if the record shows that there is no 05 genuine issue of material fact and the petitioner is entitled to an order under 06 AS 18.80.130 as a matter of law. 07 * Sec. 6. AS 18.80.130(a) is amended to read: 08 (a) At the completion of the hearing or after consideration of a petition for 09 summary decision under AS 18.80.120(e), if the commission finds that a person 10 charged in an accusation [AGAINST WHOM A COMPLAINT WAS FILED] has 11 engaged in the discriminatory practice [CONDUCT] alleged in the accusation 12 [COMPLAINT], it shall order the person to refrain from engaging in the 13 discriminatory practice [CONDUCT]. The order must include findings of fact, and 14 may prescribe conditions on [THE ACCUSED'S] future conduct relevant to the type 15 of discriminatory practice [DISCRIMINATION]. The commission may not order 16 an award of noneconomic or punitive damages in any case. In a case involving a 17 discriminatory practice [DISCRIMINATION] in 18 (1) employment, the commission may order one or more of the 19 following: the training of an employer, labor organization, or employment 20 agency, and its employees, concerning discriminatory practices; [ANY 21 APPROPRIATE RELIEF, INCLUDING BUT NOT LIMITED TO,] the hiring, 22 reinstatement or upgrading of an employee with or without back pay; the payment of 23 front pay for a period of not more than two years if hiring, reinstatement, or 24 upgrading of an employee is inappropriate because no vacancy exists, the 25 employer's discriminatory practice rendered the employee incapable of returning 26 to work, or the relationship between the employer and employee has so 27 deteriorated as to make working conditions intolerable; [,] restoration to 28 membership in a labor organization; [,] or admission to or participation in an 29 apprenticeship training program, on-the-job training program, or other retraining 30 program; however, an order for back pay or front pay must be reduced by the 31 amount the employee could have earned or could earn by making reasonable and
01 diligent efforts to obtain similar employment; 02 (2) housing, the commission may order the sale, lease, or rental of the 03 housing accommodation to the aggrieved person if it is still available, or the sale, 04 lease, or rental of a like accommodation owned by the person charged in the 05 accusation [AGAINST WHOM THE COMPLAINT WAS FILED] if one is still 06 available, or the sale, lease, or rental of the next vacancy in a like accommodation, 07 owned by the person charged in the accusation [AGAINST WHOM THE 08 COMPLAINT WAS FILED]; the commission may award actual damages which shall 09 include[, BUT NOT BE LIMITED TO,] the expenses incurred by the complainant for 10 obtaining alternative housing or space; for storage of goods and effects; for moving 11 and for other costs actually incurred as a result of the unlawful practice or violation. 12 * Sec. 7. AS 18.80.130(c) is amended to read: 13 (c) If the commission finds that a person charged in an accusation 14 [AGAINST WHOM A COMPLAINT WAS FILED] has not engaged in the 15 discriminatory practice [CONDUCT] alleged in the accusation [COMPLAINT], it 16 shall issue and cause to be served on the complainant an order dismissing the 17 complaint. 18 * Sec. 8. AS 18.80.130 is amended by adding a new subsection to read: 19 (f) The interest rate for an award under this section is determined in the 20 manner provided in AS 09.30.070. 21 * Sec. 9. AS 18.80.140 is amended to read: 22 Sec. 18.80.140. Effect of compliance with order. Immediate and continuing 23 compliance with all the terms of a commission order is a bar to criminal prosecution 24 for the particular instances of discriminatory practice [CONDUCT] described in the 25 accusation issued under AS 18.80.120 [FILED BEFORE THE COMMISSION]. 26 * Sec. 10. AS 18.80.270 is amended to read: 27 Sec. 18.80.270. Penalty. A person, employer, labor organization, or 28 employment agency, who or that wilfully engages in an unlawful discriminatory 29 practice [CONDUCT] prohibited by this chapter, or wilfully resists, prevents, 30 impedes, or interferes with the commission or any of its authorized representatives in 31 the performance of duty under this chapter, or who or that wilfully violates an order of
01 the commission, is guilty of a misdemeanor and upon conviction by a court of 02 competent jurisdiction is punishable by a fine of not more than $500, or by 03 imprisonment in a jail for not more than 30 days, or by both. 04 * Sec. 11. AS 18.80.300 is amended by adding a new paragraph to read: 05 (17) "complainant" means a person who is aggrieved by a 06 discriminatory practice prohibited by this chapter and who has filed a complaint as 07 provided in AS 18.80.100. 08 * Sec. 12. AS 44.62.330(a) is amended by adding a new paragraph to read: 09 (61) State Commission for Human Rights, where procedures are not 10 otherwise expressly provided in AS 18.80. 11 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 APPLICABILITY. This Act applies to all complaints filed on or after the effective 14 date of secs. 1 - 12 of this Act. 15 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 16 read: 17 TRANSITION: REGULATIONS. The State Commission for Human Rights may 18 proceed to adopt regulations necessary to implement the changes made by this Act. The 19 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 20 effective date of the statutory change. 21 * Sec. 15. Section 14 of this Act takes effect immediately under AS 01.10.070(c). 22 * Sec. 16. Except as provided in sec. 15 of this Act, this Act takes effect July 1, 2004.