Legislature(2003 - 2004)

05/04/2004 08:02 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES                                                                                     
Number 1330                                                                                                                     
CHAIR WEYHRAUCH  announced that the  last order  of business                                                                    
would be  CS FOR SENATE  BILL NO. 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."                                                                                      
Number 1360                                                                                                                     
LISA M.  FITZPATRICK, Esq., Chair, Human  Rights Commission,                                                                    
Office  of  the  Governor,  said  she  would  focus  on  the                                                                    
provisions of the bill that  contain the remedies that would                                                                    
be available to the commission in  the event that there is a                                                                    
finding   of  discrimination.     She   reported  that   the                                                                    
commission   is   contacted   annually   by   thousands   of                                                                    
individuals  looking for  information and  relief.   Many of                                                                    
those  cases are  not limited  by jurisdiction,  and so  the                                                                    
commission actually  ends up opening files  on approximately                                                                    
450 cases annually.   Of those cases,  Ms. Fitzpatrick said,                                                                    
most are resolved short of investigation and litigation.                                                                        
MS.  FITZPATRICK said  that historically,  when  there is  a                                                                    
finding   of  discrimination,   the   commission  has   been                                                                    
authorized to put the individual  who has been discriminated                                                                    
against back in  the same state that he/she  would have been                                                                    
[in]  before  the  alleged  discrimination  occurred.    She                                                                    
mentioned language in statute  that allows the commission to                                                                    
award any appropriate  relief.  She noted  that the language                                                                    
says,  "including   but  not  limited   to"  and   then  she                                                                    
enumerated several forms of relief.                                                                                             
MS.  FITZPATRICK   said  that  SB  354   would  modify  that                                                                    
[statute] by  allowing the  commission to  only award  a few                                                                    
limited types of  relief, which would include  "back pay and                                                                    
front  pay."   She  said  the  commission agrees  those  are                                                                    
important  forms  of  relief,  but not  the  only  forms  of                                                                    
economic  relief that  an  individual ought  to  be able  to                                                                    
obtain   if   he/she   goes  to   the   commission   for   a                                                                    
determination.   The  commission  would also  be allowed  to                                                                    
order  an  employer  to  reinstate  an  employee,  which  is                                                                    
historically  one  of  the mainstay  forms  of  relief  that                                                                    
people are afforded.  She continued as follows:                                                                                 
     If  you   have  an   individual  who   requires  a                                                                         
     reasonable accommodation for  their disability, it                                                                         
     does  not  specifically  allow the  commission  to                                                                         
     authorize  and  order a  reasonable  accommodation                                                                         
     for the person  with the disability.   It does not                                                                         
     require  the payment  of retirement  benefits, for                                                                         
     example, if an individual  has been discharged for                                                                         
     discriminatory  reasons.    It doesn't  allow  for                                                                         
     lost  benefits that  would have  been included  in                                                                         
     the paycheck.   So,  for example,  if you  have an                                                                         
     individual who is  hired to work in  a remote site                                                                         
     and housing  is a  part of their  ... compensation                                                                         
     package but,  as a  result, their  actual monetary                                                                         
     paycheck  is  reduced,  it does  not  specifically                                                                         
     allow  the commission  to  award compensation  ...                                                                         
     that would make up the difference. ...                                                                                     
     And there are ...  varying situations under which,                                                                         
     ...  if an  individual is  discharged, they  would                                                                         
     lose  their benefits  of  health  insurance.   But                                                                         
     [also] there  are actually instances where  we are                                                                         
     aware of an employer  ... keeping an employee, but                                                                         
     taking  away  their  medical  benefits  when  they                                                                         
     became  aware that  the  individual was  pregnant.                                                                         
     And it's hard to  conceive of a justification that                                                                         
     would  be nondiscriminatory  for that  kind of  an                                                                         
     action, but  the result is that  then the employee                                                                         
     is not covered by insurance  and is in a situation                                                                         
     of  ...  having   to  subsidize  their  pregnancy-                                                                         
     related costs out of their  own pocket.  And under                                                                         
     the present  statutes it's not clear  that ... the                                                                         
     commission  could  do   anything  to  assist  that                                                                         
     individual under those circumstances.                                                                                      
     There are other instances,  as well.  For example,                                                                         
     ...  if an  individual  has  been discharged,  the                                                                         
     absence of  any relief pertaining to  vesting in a                                                                         
     retirement plan  or bonus,  ... vacation  pay, ...                                                                         
     or  restoration [of]  seniority, reimbursement  of                                                                         
     other   medical  costs   or  other   out-of-pocket                                                                         
     expenses  are not  addressed in  this  bill.   And                                                                         
     these are all forms  of relief that the commission                                                                         
     has  historically awarded  individuals in  varying                                                                         
     forms.  Obviously,  in any one of  these there's a                                                                         
     duty  on the  part of  the individual  to mitigate                                                                         
     their  damages, to  try to  offset any  costs that                                                                         
     they   might  incur   or  have   incurred.     But                                                                         
     [historically] the commission  has been enabled to                                                                         
     ...  [make] these  individuals ...  whole, and  we                                                                         
     are  concerned that  by taking  away that  form of                                                                         
     relief,  ... these  individuals  are  going to  be                                                                         
     coming up short and  that there's realistically no                                                                         
     other form [of relief] available to them.                                                                                  
     The Department of Law has  argued in the past that                                                                         
     these individuals can just go  to the court system                                                                         
     and file  a case,  and in  some instances  that is                                                                         
     correct.    But  in  the  general  run-of-the-mill                                                                         
     case, there are a number  of reasons why it is not                                                                         
     a  realistic  alternative for  these  individuals.                                                                         
     First off,  the average  case that  the commission                                                                         
     handles where  it makes  a finding  of substantial                                                                         
     evidence  that   there  has   been  discrimination                                                                         
     involves a small amount of  money in the scheme of                                                                         
     cases ...                                                                                                                  
CHAIR WEYHRAUCH interjected to  request that Ms. Fitzpatrick                                                                    
continue with her testimony at a future meeting.                                                                                
Number 1650                                                                                                                     
SENATOR GRETCHEN  GUESS, Alaska State Legislature,  spoke as                                                                    
a member  of the  Senate Rules Standing  Committee ("SRLS"),                                                                    
sponsor by request of the governor.   She stated that she is                                                                    
"fairly passionate  about this  bill" and some  changes that                                                                    
she would like considered.                                                                                                      
SENATOR GUESS directed  attention to Section 4,  which is in                                                                    
regard to  "Dismissal of  complaint without  prejudice", and                                                                  
said  she  is concerned  about  the  broad authorization  it                                                                    
would  give to  any executive  director to  dismiss a  case.                                                                    
She said  she knows that  the commission is  overwhelmed and                                                                    
needs to start being able  to dismiss cases without going to                                                                    
full hearings.   Notwithstanding that, she  pointed out that                                                                    
there is not  concurrence with the commission on  any of the                                                                    
dismissals,  so it  would give  the executive  director full                                                                    
authority  to  dismiss  cases, without  any  concurrence  or                                                                    
review  by the  commission.   The  specific dismissals  that                                                                    
Senator  Guess said  were of  concern to  her are  listed on                                                                    
page  3:   [subsection (a),  paragraphs] (4),  (6), (8)-(9).                                                                    
Paragraph (4)  read:   "(4) a hearing  will not  benefit the                                                                    
complainant".  Paragraph (6) read:   "(6) A hearing will not                                                                    
represent the best use of  commission resources".  Paragraph                                                                    
(8) read:  "(8) the  probability of success of the complaint                                                                    
on  the  merits  is  low".     Paragraph  (9)  read:    "(9)                                                                    
proceeding  to   a  hearing  will   not  serve   the  public                                                                    
SENATOR GUESS offered her  understanding that paragraphs (4)                                                                    
and (8)  deal in prejudging the  situation, while paragraphs                                                                    
(6) and  (9) are very  subjective statements for  one person                                                                    
to make about  an important issue.  She  asked the committee                                                                    
to consider whether  it wants an executive  director to have                                                                    
that much authority  in statute, noting that  the reason for                                                                    
the  proposed dismissals  are that  [the commission]  is too                                                                    
overwhelmed.    However,  from  a  policy  perspective,  she                                                                    
stated  that  she is  not  sure  why  the bill  doesn't  "go                                                                    
towards prioritizing versus dismissing."   She clarified, "I                                                                    
don't  mind  a  prioritization   if  we  don't  have  enough                                                                    
resources,  but  I'm  a  little   concerned  when  we  start                                                                    
dismissing cases."                                                                                                              
Number 1807                                                                                                                     
SENATOR  GUESS directed  attention to  some of  the language                                                                    
being  added to  page  4,  lines 17-18,  which  read:   "The                                                                
commission  may  not  order   an  award  of  noneconomic  or                                                                
punitive  damages  in  any  case".    She  stated  that  the                                                                
withdrawing  of noneconomic  and  punitive damages  prevents                                                                    
the commission  from considering creative  alternatives that                                                                    
would hopefully  stop complaints  in the  future.   She said                                                                    
she  thinks the  commission has  done  a good  job at  being                                                                    
creative  about solutions,  "both to  make the  person whole                                                                    
and,  hopefully, helping  that employer  so there's  no more                                                                    
complaints in the situation."  She continued as follows:                                                                        
     I  [understand] wanting  to make  it clear  to the                                                                         
     public  ... [that]  it  can't  think that  they're                                                                         
     going to  come and  get a  million-dollar judgment                                                                         
     from [the] Human Rights Commission.   On the other                                                                         
     hand, I  don't know if limiting  the commission is                                                                         
     the way  to achieve that  - if having  very strict                                                                         
     policy and  regulations around that is  the way to                                                                         
     achieve it.                                                                                                                
Number 1887                                                                                                                     
SENATOR  GUESS turned  to the  issue  of front  pay and  the                                                                    
proposed  limits on  such.   She noted  that it  used to  be                                                                    
unlimited front  pay, and explained  that means that  if she                                                                    
were discriminated  against at the beginning  of the process                                                                    
by   never   being  hired,   and   it   was  found   to   be                                                                    
discrimination, the front  pay would be what  she would have                                                                    
been paid.   She  mentioned a  considered compromise  in the                                                                    
Senate of going  to two years, the average length  of one of                                                                    
the  cases, and  remarked that  she  is not  certain how  it                                                                    
ended up  being one year,  but surmised that there  wasn't a                                                                    
lot of thought  put into it and she just  happened not to be                                                                    
in committee that  day.  She indicated that  this is another                                                                    
issue for the committee to consider.                                                                                            
Number 1929                                                                                                                     
SENATOR  GUESS,  in  response to  a  question,  offered  her                                                                    
understanding  that back  pay  exists only  if  a person  is                                                                    
hired and  then fired.   She indicated  that the  Senate had                                                                    
not been able  to "flesh that out" and  the commission still                                                                    
"had some problems with it."                                                                                                    
REPRESENTATIVE SEATON responded, "But  if the question comes                                                                    
down  that after  determination is  made, everything  beyond                                                                    
that  would  have  been  considered back  pay,  and  we  are                                                                    
talking  about  a year  in  the  future,  you don't  have  a                                                                    
problem with that?"                                                                                                             
SENATOR GUESS  answered no.   She said  she thinks  that's a                                                                    
reasonable  policy.     She  said,  "It's   having  a  clear                                                                    
definition, which, on the Senate side, it wasn't."                                                                              
[SB 354 was held over.]                                                                                                         

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