Legislature(2003 - 2004)
04/01/2004 03:35 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.