CSSB 354(STA) am(efd fld): "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; and making conforming amendments."

00 CS FOR SENATE BILL NO. 354(STA) am(efd fld) 01 "An Act relating to complaints filed with, and investigations, hearings, and orders of, 02 the State Commission for Human Rights; and making conforming amendments." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 18.80.100 is amended to read: 05 Sec. 18.80.100. Complaint; time limitations. A person who is aggrieved by 06 a [ANY] discriminatory practice [CONDUCT] prohibited by this chapter may sign 07 and file with the commission a written, verified complaint stating the name and 08 address of the person alleged to have engaged in the discriminatory practice 09 [CONDUCT], and the particulars of the discrimination. A complainant may 10 withdraw the complaint at any time before the service of an accusation under 11 AS 18.80.120. A withdrawal must be signed by the complainant and be in 12 writing. A withdrawal does not limit the discretion of the executive director 13 provided in (b) of this section [THE EXECUTIVE DIRECTOR MAY FILE A 14 COMPLAINT IN LIKE MANNER WHEN AN ALLEGED DISCRIMINATION

01 COMES TO THE ATTENTION OF THE DIRECTOR]. 02 * Sec. 2. AS 18.80.100 is amended by adding new subsections to read: 03 (b) The executive director may file a complaint in the manner provided in (a) 04 of this section when a discriminatory practice comes to the attention of the executive 05 director. 06 (c) A complaint may be filed not later than 180 days after the alleged 07 discriminatory practice or, for a continuing discriminatory practice, not later than 180 08 days after the alleged discriminatory practice stopped. 09 * Sec. 3. AS 18.80.110 is amended to read: 10 Sec. 18.80.110. Investigation and conciliation. The executive director or a 11 member of the commission's staff designated by the executive director shall 12 informally investigate the matters set out in a filed complaint, promptly and 13 impartially. If the investigator determines that there is [THE ALLEGATIONS ARE 14 SUPPORTED BY] substantial evidence of a discriminatory practice under this 15 chapter, the investigator shall immediately try to eliminate or remedy the 16 discriminatory practice through an agreement reached [DISCRIMINATION 17 COMPLAINED OF,] by conference, conciliation, and persuasion. If an agreement is 18 reached, it must be reduced to writing and signed by the complainant, executive 19 director, and respondent. The agreement is binding and enforceable under this 20 chapter as an order of the commission. Any agreement reached under this 21 section may include the compromise of damages authorized under this chapter. 22 * Sec. 4. AS 18.80 is amended by adding a new section to read: 23 Sec. 18.80.112. Dismissal of complaint without prejudice. (a) At any time 24 before the issuance of an accusation under AS 18.80.120, the executive director may 25 dismiss without prejudice a complaint if the executive director determines, in the 26 executive director's discretion, that 27 (1) the complainant's objection to a proposed conciliation agreement is 28 unreasonable; 29 (2) the complainant is unavailable or unwilling to participate in a 30 hearing; 31 (3) relief is precluded by the absence of the person alleged to have

01 engaged in the discriminatory practice; 02 (4) a hearing will not benefit the complainant; 03 (5) the person aggrieved by the discriminatory practice has initiated or 04 wants to initiate an action or proceeding in another forum based on the same facts; 05 (6) a hearing will not represent the best use of commission resources; 06 (7) a hearing will not advance the purposes stated in AS 18.80.200; 07 (8) the probability of success of the complaint on the merits is low; or 08 (9) proceeding to a hearing will not serve the public interest. 09 (b) Dismissal under this section does not prevent a complainant from 10 (1) initiating an action or proceeding in another forum; or 11 (2) filing a new complaint under AS 18.80.100 that resolves the 12 grounds for the dismissal under (a) of this section. 13 * Sec. 5. AS 18.80.120 is repealed and reenacted to read: 14 Sec. 18.80.120. Hearing. (a) If informal efforts under AS 18.80.110 to 15 eliminate or remedy the alleged discriminatory practice are unsuccessful and the 16 executive director determines, in the executive director's discretion, to refer the 17 complaint for hearing, the executive director shall issue an accusation based on the 18 investigator's determination of substantial evidence and serve the person charged in 19 the accusation and the complainant with notice of the referral and a copy of the 20 accusation. The executive director's decision to refer the complaint to hearing is not 21 reviewable by the commission under this chapter. The location of the hearing is the 22 commission office unless the commission designates another location. The executive 23 director, or the executive director's designee, presents the case in support of the 24 accusation before the commission. The person charged in the accusation may file a 25 written answer and may appear at the hearing, with or without counsel, and submit 26 evidence. 27 (b) The commission shall follow the procedures in AS 44.62.330 - 44.62.630 28 (Administrative Procedure Act) except as otherwise provided in this chapter. 29 (c) An accusation may be reasonably and fairly amended by the commission. 30 An amendment to name a different discriminatory practice must be supported by 31 substantial evidence, and the discriminatory practice must be referred for conciliation

01 as provided in AS 18.80.110, before a hearing may proceed. 02 (d) In a hearing on an accusation, each element of an accusation or defense 03 must be proven by a preponderance of the evidence. 04 (e) At any time after the issuance of an accusation, the executive director or 05 the person charged in the accusation may petition for a summary decision on the 06 accusation. The commission shall grant a petition if the record shows that there is no 07 genuine issue of material fact and the petitioner is entitled to an order under 08 AS 18.80.130 as a matter of law. 09 * Sec. 6. AS 18.80.130(a) is amended to read: 10 (a) At the completion of the hearing or after consideration of a petition for 11 summary decision under AS 18.80.120(e), if the commission finds that a person 12 charged in an accusation [AGAINST WHOM A COMPLAINT WAS FILED] has 13 engaged in the discriminatory practice [CONDUCT] alleged in the accusation 14 [COMPLAINT], it shall order the person to refrain from engaging in the 15 discriminatory practice [CONDUCT]. The order must include findings of fact [,] and 16 may prescribe conditions on [THE ACCUSED'S] future conduct relevant to the type 17 of discriminatory practice. The commission may not order an award of 18 noneconomic or punitive damages in any case [DISCRIMINATION]. In a case 19 involving a discriminatory practice [DISCRIMINATION] in 20 (1) employment, the commission may order one or more of the 21 following: the training of an employer, labor organization, or employment 22 agency, and its employees, concerning discriminatory practices; [ANY 23 APPROPRIATE RELIEF, INCLUDING BUT NOT LIMITED TO,] the hiring, 24 reinstatement, or upgrading of an employee with or without back pay; the payment of 25 front pay for a period of not more than one year if hiring, reinstatement, or 26 upgrading of an employee is inappropriate because no vacancy exists, the 27 employer's discriminatory practice rendered the employee incapable of returning 28 to work, or the relationship between the employer and employee has so 29 deteriorated as to make working conditions intolerable; [,] restoration to 30 membership in a labor organization; [,] or admission to or participation in an 31 apprenticeship training program, on-the-job training program, or other retraining

01 program; however, an order for back pay or front pay must be reduced by the 02 amount the employee could have earned or could earn by making reasonably 03 diligent efforts to obtain similar employment; 04 (2) housing, the commission may order the sale, lease, or rental of the 05 housing accommodation to the aggrieved person if it is still available, or the sale, 06 lease, or rental of a like accommodation owned by the person charged in the 07 accusation [AGAINST WHOM THE COMPLAINT WAS FILED] if one is still 08 available, or the sale, lease, or rental of the next vacancy in a like accommodation, 09 owned by the person charged in the accusation [AGAINST WHOM THE 10 COMPLAINT WAS FILED]; the commission may award actual damages, which shall 11 include [, BUT NOT BE LIMITED TO,] the expenses incurred by the complainant for 12 obtaining alternative housing or space; for storage of goods and effects; for moving; 13 and for other costs actually incurred as a result of the unlawful practice or violation. 14 * Sec. 7. AS 18.80.130(c) is amended to read: 15 (c) If the commission finds that a person charged in an accusation 16 [AGAINST WHOM A COMPLAINT WAS FILED] has not engaged in the 17 discriminatory practice [CONDUCT] alleged in the accusation [COMPLAINT], it 18 shall issue and cause to be served on the complainant an order dismissing the 19 complaint. 20 * Sec. 8. AS 18.80.130 is amended by adding a new subsection to read: 21 (f) The interest rate for an award under this section is determined in the 22 manner provided in AS 09.30.070. 23 * Sec. 9. AS 18.80.140 is amended to read: 24 Sec. 18.80.140. Effect of compliance with order. Immediate and continuing 25 compliance with all the terms of a commission order is a bar to criminal prosecution 26 for the particular instances of discriminatory practice [CONDUCT] described in the 27 accusation issued under AS 18.80.120 [FILED BEFORE THE COMMISSION]. 28 * Sec. 10. AS 18.80.270 is amended to read: 29 Sec. 18.80.270. Penalty. A person, employer, labor organization, or 30 employment agency, who or that wilfully engages in an unlawful discriminatory 31 practice [CONDUCT] prohibited by this chapter, or wilfully resists, prevents,

01 impedes, or interferes with the commission or any of its authorized representatives in 02 the performance of duty under this chapter, or who or that wilfully violates an order of 03 the commission, is guilty of a misdemeanor and, upon conviction by a court of 04 competent jurisdiction, is punishable by a fine of not more than $500, or by 05 imprisonment in a jail for not more than 30 days, or by both. 06 * Sec. 11. AS 18.80.300 is amended by adding a new paragraph to read: 07 (17) "complainant" means a person who is aggrieved by a 08 discriminatory practice prohibited by this chapter and who has filed a complaint as 09 provided in AS 18.80.100. 10 * Sec. 12. AS 44.62.330(a) is amended by adding a new paragraph to read: 11 (61) State Commission for Human Rights, where procedures are not 12 otherwise expressly provided in AS 18.80. 13 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 APPLICABILITY. This Act applies to all complaints filed on or after the effective 16 date of secs. 1 - 12 of this Act. 17 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 18 read: 19 TRANSITION: REGULATIONS. The State Commission for Human Rights may 20 proceed to adopt regulations necessary to implement the changes made by this Act. The 21 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 22 effective date of the statutory change.