Testimony

Senate Bill 2117

House Industry, Business and Labor Committee

March 7, 2005

Chairman Keiser and members of the Committee, thank you for the opportunity to present testimony in opposition to Senate Bill 2117. I am Cheryl Bergian, Director of the North Dakota Human Rights Coalition. The Coalition includes a broad-based, statewide membership of individuals and organizations interested in the furtherance of human rights in North Dakota; the Coalition’s mission is to effect change so that all people in North Dakota enjoy full human rights.

We support the work of the Division of Human Rights in the North Dakota Department of Labor for the enforcement of the North Dakota Human Rights Act and North Dakota Housing Discrimination Act. However, we have some objections to changes the Labor Commissioner is proposing to the North Dakota Human Rights Act.

The Labor Commissioner is adding a definition of “readily achievable”, amending 14-02.4-02 to add section 16, page 4, lines 1-3. We would like to note that the American with Disabilities Act includes factors to be considered, and that the Labor Commissioner and Committee may wish to include those factors in amending the North Dakota Human Rights Act.

The Labor Commissioner is amending 14-02.4-14, page 4, lines 30-31, and page 5, lines 1-3 to add the provision that architectural or communication barriers must be removed if readily achievable or the entity must provide accommodations through alternative methods, if those methods are readily achievable. We are concerned about the apparent option of the entity to choose the avenue for the resolution of barriers. That does not mirror the Americans with Disabilities Act, which provides for alternative methods for the provision of services only if the removal of barriers is not readily achievable. The NDHRC asks that SB 2117 be amended to follow the provisions of the ADA in providing that alternative methods only be available if barrier removal is not readily achievable.

The most common way that discrimination against people with disabilities manifests itself is through their exclusion from their communities (work, civic, recreational, etc.). This used to be even more extreme because of the institutionalization of disabled people that totally removed them from society; while this is not as common now, disabled people are still routinely excluded from society as a result of the ‘built environment’ having been designed without their needs in mind (i.e., narrow doorways, steps in front of entrances, etc.). One of the primary findings Congress made in enacting the ADA is that “society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. 12101(a)(2). Consequently, to remedy that discrimination and work toward meaningful integration, places of public accommodation need to affirmatively engage in removal of those barriers that prevent people from participating.

The obligation to remove barriers and ensure integration is not absolute. In enacting the barrier removal/reasonable accommodation provisions of the ADA, Congress was trying to balance two things: the integration of people with disabilities into society and the cost to businesses of retrofitting their facilities. Title III’s two-step test does a good job of working this balance by first requiring (if it’s readily achievable-a very low standard) barrier removal that will allow disabled people to participate just like everyone else. If that doesn’t work, to prevent the total exclusion of disabled people, goods/services are required to be provided through alternative methods, but the latter is clearly not an integrated approach and therefore should only be used if it’s not readily achievable to remove barriers so that disabled people can participate just like everyone else. Having someone bring your groceries out to the curb is not the same as picking the apples you want out of the bin yourself. Just as the Supreme Court recognized in Brown v. Board of Education that “separate but equal” facilities for black and white students “have no place,” so too with people with disabilities. Consequently, providing goods/services through alternative methods should be a last resort.

Because of the ‘readily achievable’ standard, the ADA (and the North Dakota Human Rights Act) doesn’t even impose an absolute nondiscrimination requirement on public accommodations to integrate people with disabilities. Requiring them to go through the two-step inquiry really is not asking a lot. The ‘readily achievable’ standard for barrier removal in existing facilities is already quite low (i.e., “easily accomplishable and able to be carried out without much difficulty or expense.” 28 CFR 36.304(a)). Consequently, requiring entities to demonstrate that barrier removal is not readily achievable is not particularly burdensome. If they are able to make that showing, they then move to the alternative method analysis, which, because it also has a readily achievable standard, is also not particularly onerous.

To allow businesses to bypass an assessment of whether barrier removal is readily achievable and go straight to alternative methods undermines the major goal and spirit of law, which is to “let the shameful wall of exclusion finally come tumbling down” and to welcome the integration of people with disabilities into “the mainstream of American life.” Statement of President George Bush at the Signing of the Americans With Disabilities Act, July 26, 1990.

The Labor Commissioner is also asking that the North Dakota Human Rights Act, 14-02.4-20, page 5, lines 11-12, be amended to state that compensatory or punitive damages are not available under the chapter, through the department or through an administrative hearing. The NDHRC understands that this is because of an informal opinion of the Attorney General’s office, by e-mail during the 2003 Legislative Session, that the award of compensatory or punitive damages under the Act by the department or in an administrative hearing may be unconstitutional. The Attorney General’s Office has not issued a formal opinion on this question, nor was the Attorney General’s Office able to provide the basis for this informal, undocumented opinion. The NDHRC asks that the Committee amend and delete the amendment to 14-02.4-20, page 5, lines 11-12 because of the uncertainty of the need for this amendment. According to a conversation with the Attorney General’s Office, the possibility of unconstitutionality of the provision is based on decisions in some other states by courts regarding those states’ constitutions. The North Dakota Supreme Court has not issued an decision regarding this question, nor has it had an opportunity to address the question under North Dakota’s Constitution. It is speculation at this point how the North Dakota Supreme Court would respond on this question, and to amend the North Dakota Human Rights Act at this time is premature and unnecessary. A similar provision regarding compensatory damages was proposed by the Labor Commissioner to the North Dakota Housing Discrimination Act in HB 1158. That provision was amended out of the HB 1158 by the House Judiciary Committee, and HB 1158 has passed the House and the Senate without the provision regarding compensatory in it.

The Labor Commissioner is asking that the North Dakota Human Rights Act be amended to delete the requirement that the Labor Commissioner make a probable cause finding in all complaints filed with the Department, amending 14-02.4-23(2), page 5, lines 26-27. The Department wishes to continue its current practice of pursing conciliation with the parties before providing to the complainant and respondent the opinion of the Department on whether there is probable cause to believe that discrimination has occurred. This requirement has been in place since the inception of the North Dakota Human Rights Act, and the Labor Department should give both the complainant and respondent the information they deserve on whether the Department can determine whether there is probable cause to believe that discrimination has occurred. This would facilitate the settlement of the action in those cases in which probable cause is found. The cases in which probable cause is not found are already dismissed by the Department and no further action is taken.

Regarding amendments proposed 14-02.4-23(5) and (6), page 6, lines 7-16, an issue has arisen regarding enforcement of the North Dakota Human Rights Act and the interplay among the North Dakota Department of Labor, the North Dakota Attorney General’s Office, and the person while has filed a complaint under the North Dakota Human Rights Act. The Attorney General’s Office has taken the position that they do not represent the complainant in enforcement actions under the Act, and that they only represent the State of North Dakota (the Labor Department). This has resulted in the Attorney General’s Office’s refusal to communicate with the complainant after a probable cause determination has been issued by the Labor Department under the North Dakota Housing Discrimination Act, and to only communicate with the Labor Department. The ultimate result is that the Attorney General’s Office and the Labor Department have actually settled a complaint under the North Dakota Housing Discrimination Act without informing the complainant that the settlement was in the offing, and without conferring with the complainant regarding that settlement.

This is not how the federal government acts when the U.S. Department of Justice and the U.S. Department of Housing and Urban Development enforce the federal Fair Housing Act; it is this relationship that the Labor Commissioner can model for enforcement of the North Dakota Human Rights Act. The DOJ files complaints in the name of the complainant and HUD, and confers with the complainant and HU regarding the progress of the complaint and any settlement prospects. The DOJ does acknowledge that it represents only HUD as it proceeds, but it sees its role as enforcing the Fair Housing Act for both the complainant and HUD.

The NDHRC asks that the amendments proposed by the Labor Commissioner in SB 2117 regarding 14-02.4-23(5) and (6), page 6, lines 7-16 be amended and deleted by this committee. I appreciate this opportunity to testify on behalf of the North Dakota Human Rights Coalition.