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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YWCA Family Service Center Press Conference
January 24, 2003 1:00 p.m. The North Dakota Human Rights Coalition is proposing that the North Dakota legislature enact a bill, Senate Bill 2306, to create a North Dakota Commission on Human Rights. The proposed Commission would operate in addition to the current Division of Human Rights in the North Dakota Department of Labor. The North Dakota Human Rights Coalition has proposed the Commission because the Division of Human Rights has not been able to respond adequately to the needs of the citizens of North Dakota. The Division of Human Rights was given the ability to investigate and enforce all forms of discrimination prohibited by state law in the 2001 legislative session. Prior to the 2001 session, the Division had the ability to investigate and enforce discrimination in housing, and investigate discrimination in employment (before 2001, those cases were referred to the federal Equal Employment Opportunity Commission for enforcement if discrimination was determined by the Division of Human Rights to have occurred). Despite repeated promises to do so over the past two years, the Division of Human Rights has not developed rules to govern its decision-making while investigating complaints of discrimination and making determinations of whether discrimination occurred. This has led to an October, 2002 decision of the Division on a housing discrimination complaint filed in June, 2000 that discrimination did not occur in circumstances where a black tenant was required to dispose of a therapeutic dog in violation of state fair housing law and had her rent increased when other tenants’ rent was not increased. The Division of Human Rights’ investigation documented the landlord’s statements to multiple witnesses that blacks and Native Americans were “savages”, that blacks were “niggers”, and that the tenant in question was a “nigger in the woodpile.” The landlord also stated to a witness that he could not keep accommodating “these people” just because they had disabilities or were on welfare. These statements were ignored by the Division of Human Rights in determining that the landlord’s adverse actions against the tenant were not because the tenant was black or had a disability. A Commission would be able to issue rules that govern the decision-making of the Division of Human Rights, and establish the “reasonable cause” standard that the Division is supposed to use when making decisions on whether discrimination has occurred. Reasonable cause is: to have knowledge of facts, although not amounting to direct knowledge, would cause a reasonable person to believe that discrimination occurred. Reasonable cause is less than the standard that would be used at a hearing or trial (which is a preponderance of evidence); reasonable cause is used at the initial decision on whether to go forward with a finding that discrimination occurred. The Coalition believes that the Division erred in determining that a reasonable person would not decide that Discrimination occurred when a landlord is taking adverse action against a black tenant, calls that black tenant a “nigger in the woodpile,” makes racist comments regarding blacks to several witnesses, and says that he can’t keep accommodating “these people” because they have disabilities. A Commission would also be able to hear appeals of no reasonable cause determinations like the one issued in this situation. The Commission would be made up of people who represent those likely to experience discrimination, such as people of color, people of different ethnic origin, and people with disabilities, as well as representatives of business and state or local government. The Division of Human Rights rarely determines that there is reasonable cause to believe that discrimination has occurred. It has received 538 complaints of discrimination since in the past four years and it has found reasonable cause to determine that discrimination occurred in only eight. By the Division of Human Rights’ decision-making, in only eight incidents reported to it in the past four years would a reasonable person believe that discrimination occurred. The Division of Human Rights did facilitate settlement in 56 of the 538 cases, but those settlements did not include a reasonable cause finding. In contrast, the Division found no reasonable cause that discrimination occurred in 259 of the 538 cases filed. The Division has not implemented telephone complaint acceptance of discrimination complaints, despite repeated promises to do so. The current process requires a person with a discrimination complaint to call the Division of Human Rights in Bismarck, and a form is sent to the complainant to fill out. The complainant is asked to provide details regarding the discriminatory incident or incidents, and is asked to get signed witness statements. Once the form is returned to the Division by the complainant, the Division decides if the discrimination complaint possibly falls with the prohibitions of the discrimination law in North Dakota. If it does, the Division sends another form back to the complainant with the complainant’s information for the complainant to review, sign, and mail back to the Division. This process is unduly cumbersome and relies on the literacy of the complainant to give the Division the information it needs to investigate the discrimination complaint. The Division should obtain the information it needs for the filing of a complaint in the first or second telephone call. The Division has acknowledged the need to change its complaint acceptance process for more than a year and the Labor Commissioner has said that the computer software is in development for telephone complaint acceptance for more than a year, but the process is still the same. A Commission on Human Rights could assist the Division in addressing the barriers that mean that telephone complaint acceptance has not been started. The process currently in place means that if the complainant does not work very quickly, the complainant could lose the right to file a discrimination complaint. The deadline for filing some complaints is as short as 6 months from the date of the discriminatory act and the Division of Human Rights does not advise people of these deadlines in the initial telephone call. If the complainant calls the Division several months after the incident, it is very likely that the complaint will not be signed and filed in time. The complainant’s ability to call the Division of Human Rights quickly depends on the complainant’s ability to locate that telephone number; the Division of Human Rights is not listed in the Fargo telephone book, despite the Division’s promise two years ago to ensure listings in all the telephone books across the state. The Division of Human Rights has difficulty in meeting its investigation and enforcement role in the discrimination complaints it does receive. As of the end of 2002, it had 3 open cases that been filed in 1999, 10 open cases that had been filed in 2000, 23 open cases that had been filed in 2001, and 120 open cases that had been filed in 2002. The delay in investigating cases means that investigations are started months or years after the discriminatory act or acts occurred, affecting the memory of and availability of witnesses. In the investigation already mentioned, the case was filed in June, 2000 and closed in August, 2002. Since 1999, the Division has had three additional full-time employees added by the North Dakota legislature to assist its investigation and enforcement work. A Commission would be able to assist the Division by taking on responsibilities that the Division has not been able to address and let the Division to continue to focus on investigating and enforcing the discrimination law in North Dakota. An example of responsibilities that the Division has not been able to address is a study on the extent and nature of discrimination in North Dakota that was required by the 2001 legislature. The Division contracted with a private company which conducted that study in December, 2001. The Division has not publicized the results of that study, even though the report was completed by the private company in April, 2002. The North Dakota Human Rights Coalition and Fargo Human Relations Commission made repeated requests of the Division that the results of the study be publicized. Despite repeated promises to do so, the Division has not made those results public. A Commission would be able to publicize the results of such a study, including positive and negative results, and assist the Division in developing responses to the negative results in order to improve the quality of life for all North Dakota residents. The Division does in-person complaint acceptance in one city in North Dakota, Fargo (other than in Bismarck, where its office is located). The Division instituted in-person complaint acceptance for one-half day per month in August, 2002, at the request of the Fargo Human Relations Commission. The Fargo Human Relations Commission asked for in-person complaint acceptance in Fargo because of the 18 people referred to the Division in 2001, only 3 people got complaints filed through the multiple-mailing complaint process. The Division has done no publicity of the availability of in-person complaint acceptance in Fargo, despite its promise to do a press release in September, 2002, and despite a second request for that press release by the Fargo Human Relations Commission in November, 2002. And, the telephone number for the Division of Human Rights (in Bismarck or Fargo) is not listed in the Fargo telephone book. A Commission on Human Rights would be able to assist the Division in publicizing its availability in all areas of North Dakota; the Commission would include members from across the state. The North Dakota Human Rights Coalition asked the Division of Human Rights to create an advisory committee, made up of people who represent those likely to experience discrimination, more than a year and a half ago. Despite repeated requests for an answer to the Coalition’s request, despite meeting with the Labor Commissioner regarding this request and providing additional information on the reasons for, proposed responsibilities of and proposed structure of the advisory committee, the Labor Commissioner has never responded to the request for an advisory committee, despite repeated assurances that he would do so. The advisory committee would have assisted the Division in providing information on discrimination and in publicizing the Division’s availability to citizens of North Dakota. The proposed Commission would fill that role, also. The proposed Commission would be a visible example of North Dakota’s commitment to embracing and celebrating diversity, both to those who are residents of North Dakota and those who might be considering residence in North Dakota, and a visible response to the complexities that diversity can bring for those who live here. More than 25 organizations in the state of North Dakota support the creation of a North Dakota Commission on Human Rights, including the Fargo City Commission and Fargo Human Relations Commission. We ask that the North Dakota legislature recognize the grassroots support for the creation of a North Dakota Commission on Human Rights and pass Senate Bill 2306.
Cheryl Bergian
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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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