North Dakota Human Rights Coalition
Working to effect change so that all people in North Dakota enjoy full human rights
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North Dakota Human Rights Coalition Working to effect change so that all people in North Dakota enjoy full human rights |
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November 25, 2001
Mark D. Bachmeier, Commissioner North Dakota Department of Labor State Capitol Building, 13th Floor 600 East Boulevard, Dept. 406 Bismarck, ND 58505-0340
Dear Commissioner Bachmeier,
Thank you again for your September tenth letter in response to the letter which we sent to you on June 28th. Your letter of response has been shared with other members of our North Dakota Human Rights Coalition for their thoughts and input.
As indicated in our initial June 28th letter, we believe there are four basic issues which are absolutely critical to fully implement North Dakota's Human Rights Act. We wish to again address these issues in this current letter and continue to expand our dialogue with you.
You stated in your response that you were “certainly willing to discuss the concept of an Advisory Committee,” but that you needed to understand more about what the intent, composition and functions of such a group would be”. As you are well aware, there are distinct subgroups of people within our population who, because of their identity, are more likely to be subjected to acts of discrimination. Many, who are so categorized, are represented by various advocacy groups who speak to the issues that affect people in these defined populations. It would seem to be wise for the Division of Human Rights to seek the counsel of leaders in these defined populations to advise them on such issues as, how to effectively communicate with people in these various constituencies. Our primary intent in seeking establishment of an Advisory Committee would be to help the Division address the problems it faces in making it more accountable to the people of North Dakota. Defining the specific responsibilities of an Advisory Committee could be addressed in conjunction with reaching a consensus on the need for such a group.
It is our belief that the Advisory Committee would significantly increase the Department's productivity and effectiveness. A commonly shared opinion is that educating the public in regard to what constitutes discriminatory practices and what increases the dignity of people would be beneficial to all concerned. We believe an Advisory Committee would be a key component in coordinating efforts to educate the public regarding human rights issues. As you can appreciate, public relations is crucial to the success of many public enterprises; an Advisory Committee would serve a significant role in the success of the Department's public relations effort. We want to strongly emphasize that our primary intent in advocating for inclusion of an Advisory Committee is to help the Division of Human Rights accomplish its mission of fully enacting our states Human Rights Law.
When the substituted version of Senate Bill 2217 was being debated during the past legislative session, some of our advocates for a Human Rights Commission, were assured that an Advisory Committee for the Division would be considered and could be implemented once the bill became law. We would hope that the assurances that were given on this most critical of issues would be honored. We continue to believe it to be absolutely essential that there be an Advisory Committee to the Division composed primarily of people who are spokespersons for groups of people who commonly experience acts of discrimination.
Our Coalition does appreciate the information you and Ms. Dina Butcher have provided regarding the training and experience of the Division's staff. We believe it to be extremely important that the staff not only be highly trained in regard to human rights enforcement but that they also be sensitive and committed to the very important work they do in order to assure that people's rights are not violated. Since the Division has so much responsibility for the legal issues of human rights enforcement, we assumed that there would be an attorney on the staff who specialized in this area of the law. Do you employ an attorney within the Division's staff whose responsibility is to review claims of discrimination?
We are encouraged to hear that many of the procedures and forms used for documenting claims of discrimination are being streamlined by the Division. We also feel that cross training your staff in different areas of the law will lead to more efficient use of the Division's investigative staff.
In August, many of us received a request for input on a proposed study, which was to be financed by the Department of Labor, for the purpose of determining the extent of discrimination 'present in North Dakota. What is the current status of this study? The reasoning given for conducting the study was to help determine a base line of discrimination experienced by the population in North Dakota. As you are well aware, there are valid studies and ones that are flawed and aren't worth the money and resources that were invested in conducting them. It would seem to us that a telephone survey would by its very nature leave out low income people, people who have difficulty communicating and minorities who are residing on reservations and in homeless shelters. Also important is what questions are asked and how they are asked. It also seems to be very important to determine what goals you are trying to attain and what hypothesis are being established prior to conducting the study. Sampling the classes of people most likely to experience discrimination would seem to more clearly define the extent of discrimination. Although, some people may object to the use of testers, they have proven to be a very reliable means of determining prevailing attitudes and practices. We would like to draw your attention again to the North Dakota Advisory Committee's 1999 Report to the U.S. Civil Rights Commission which found that discrimination is “commonplace” in North Dakota.
In regard to the issue of “probable cause,”, the response given here has been written by Fargo attorney, Mark Schneider, who is a fellow member of our Coalition. In this response, Mark has reviewed the comments made regarding “probable cause” in your September 10th letter to us. Mark's credentials include his service for several years on the bipartisan North Dakota Advisory Committee, that prepared the 1999 North Dakota Report to the U.S. Civil Rights Commission; Mark is also well versed on administrative law. The following remarks (enclosed in bold brackets) is his response to your description of how the Division of Human Rights determines the existence of “probable cause”.
{we would like to follow up on your assertion that, “the vast majority of complaints, that are supported by evidence, are settled prior to a formal determination.” You offer this by way of explanation why “ . . . the agency has issued few probable cause findings historically.”
First, how does the Department determine whether the “complaints. . . are supported by evidence. . .” without making some type of “probable cause” determination? How do you inform the charging parties that their complaints are” supported by evidence?” in order that the complaining party may maximize the settlement that is to be obtained?
Also we don I t understand your assertion that a “probable cause” determination results in “inevitable litigation.” It would seem to us to be just the opposite, i.e., if your Department makes a probable cause determination, both parties are given notice of the merits of the claim, thus enhancing not only the prospects of settlement but a settlement amount that is reasonable given the obvious merits of the complaint.
Obviously, all parties should be “treated fairly”, but after all, the North Dakota Human Rights Act is a clear and unequivocal statement of legislative purpose that illegal discrimination, in all its forms, should be eradicated “root and branch.” According to your letter, there are numerous “complaints that are supported by evidence” that are not the subject of a “probable cause” determination. With all due respect, it would seem to us that if complaints are “supported by evidence”, then, obviously, the purpose of the Human Rights Act is enhanced by using that evidence to make a “probable cause” determination and give the best possible leverage to the charging party to have his/her claim settled with the “benefit of the probable cause” determination. Any other process, it seems to us, does not embrace either the spirit or the letter of the Human Rights Act, i. e., that your agency will investigate all complaints within its jurisdiction and will seek to assist charging parties to resolve the cases - - through settlement if possible and litigation if necessary - - if those claims are “supported by the evidence.”
Also, while the EEOC is far from a model of perfection, we do urge you to look at the EEOC procedures regarding “reasonable cause” (probable cause) decisions. EEOC is charged to either make a “no cause” or “reasonable cause” decision. If a “no cause” decision is reached, EEOC must dismiss the charge, while a “reasonable cause” decision means the EEOC must undertake its statutory obligation of attempting to conciliate the dispute. 42 USC 2000E-5 (B); 45B AmJur 2d, Job Discrimination, Section 13501361. Certainly, if the claim has no merit, and to be fair to the person being charged with the discrimination, your agency should issue a no probable cause determination promptly after fully investigating the complaint. By the same token, if there is “probable cause”, it is not only fair to the charging party - - but it is the essential function of your agency - - to promptly make the “probable cause” determination and attempt to conciliate if possible and litigate if it is necessary.
You appropriately emphasize the legislative direction that says, “the Department shall emphasize conciliation to resolve complaints.” N.D.C.C. Section 14-02.4-22. You ignore, however, the equally clear mandate of the legislature that requires that, “the Department shall determine from the facts whether probable cause exists to believe a discriminatory practice has occurred.” N. D. C. C. Section 14-02.4-23(2). Emphasis added. Reading these two statutory mandates together, it seems obvious to us that the legislature mandates a decision from your department whether “probable cause” exists in every complaint. If it doesn't exist, “. the department shall promptly dismiss the complaint. . . .” Id. Again, the clear statutory direction - - we believe one that all reasonable people can agree with - - is that “conciliation” should be used to resolve complaints”. However this salutary goal has nothing to do with the independence - - and the mandatory - statutory duty of your department to make a determination in every complaint whether “probable cause” exists to believe a discriminatory practice has occurred. N.D.C.C. Section 14-02.4-23.
Also, it seems essential - - and fair to all concerned - that your Department have a regulatory appeal process with regard to a finding of no probable cause. Again, the EEOC has this regulatory procedure, allowing a request for review to be filed with subsequent notification to all parties to the charge. 45B AmJur 2d, Job Discrimination, Section 1356.
We also believe it is essential that your Department develop a regulatory definition of “probable cause.” You have cited the case of Asbridge v. ND State Highway Commissioner, 291 N.W. 2d 739 (N.D. 1980) for the proposition that “reasonable grounds”, “reasonable cause” and “probable cause” are synonymous. And see Chadwick v. Moore, 551 N.W. 2d 783 (N.D. 1996) (reasonable grounds to arrest are equivalent to probable cause to arrest). Of course, the Asbridge case dealt with what constitutes “reasonable grounds” to stop a motor vehicle operator who is suspected of drunken driving. The Asbridge case discusses “probable cause” for arrest in a criminal law context, and seems to us, is not readily adaptable to “probable cause” determinations under complaints of civil rights violations.
It seems to us that adopting a criminal law standard of “probable cause” simply doesn’t I t fit the context of what constitutes “reasonable (cause)” in the context of investigating an allegation of civil rights discrimination. Rather, the plain speaking language of the EEOC in regard to what constitutes “reasonable cause” seems to have much clearer application, i. e., a “reasonable cause” in most circumstances means the EEOC finds the charge to have sufficient merit to warrant litigation if it is not conciliated. 45B AmJur 2d, Job Discrimination, Section 1350. This common sense definition embraces your Department’s mandatory duty to make “probable cause” determinations on every complaint and, if it exists, seek to conciliate the complaint, if possible.
Finally, even in a criminal law context, our Supreme Court (while confirming that standard is indeed “knowledge that would give a prudent person reasonable grounds to believe a violation of law has occurred”) has found that it is not necessary that the arresting officer have knowledge of facts sufficient to establish guilt. Mayo v. Moore. 527 N.w. 2d 257 (N.D. 1995). In other words, the “probable cause” determination can never be predicated upon the necessity of having the complaint proved either “beyond a “reasonable doubt” (the criminal standard of proof) or by a “preponderance of the evidence” (the civil standard of proof). Rather, “probable cause” should be found in every case were there is sufficient merit to litigate if the case is not conciliated. If so, the matter must be either conciliated, or failing that, must be litigated to determine the truth of the matter through a due process hearing.
Again it seems essential that your Department promulgate regulations that provide a working definition of “probable cause” that embraces the spirit and the letter of the North Dakota Human Rights Act.
Therefore, we ask that you revisit the entire issue of “probable cause” not only because it is an indispensable and integral portion of the statutory duties of your department, but perhaps even more importantly, because open, fair, and just determinations of all complaints of discrimination are essential to winning the public confidence that your agency will be a positive factor in eradicating illegal discrimination in our state.
We look forward to your response that addresses our concerns regarding your “probable cause” mandate.} This concludes Mark Schneider's comments in regard to the issue of “probable cause” as were addressed in your letter to us.
For your information, our coalition is seeking support from c granting agency for the purpose of employing staff whose work would be dedicated to help the coalition organize and to more efficiently address our work on human rights issues in North Dakota.
Thank you for your offer to meet with us in Fargo at any time. We of the coalition would very much like to schedule a meeting with you sometime before the beginning of the new year. Please advise us as to openings in your schedule that would allow for a trip to Fargo during that time period. We do look forward to your response!
Sincerely,
Allan Peterson, Chairperson North Dakota Human Rights Coalition Home Address: 7009 Horseshoe Bend Fargo, ND 58104 Phone: 701-282-4644
c: Rose Stoller, State Director, Mental Health Association
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North Dakota Human Rights Coalition P.O. Box 1961 Fargo, North Dakota 58107-1961 Phone: (701) 239-9323 Fax: (701) 478-4452 Email: humanrights@ndhrc.org
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