Legislature(2003 - 2004)

04/01/2004 03:35 PM STA

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
CHAIR  GARY STEVENS  asked if  his  office and  the Human  Rights                                                               
Commission had  come to  agreement on most  of the  issues raised                                                               
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                                                               
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                                                               
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                                                               
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                                                               
CHAIR  GARY STEVENS  asked if  there were  any further  issues to                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                                              

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