U.S. Commission on Civil Rights

Civil Rights Enforcement Efforts in North Dakota

Chapter 1

  History of Civil Rights Efforts in North Dakota

The United States was built on the premise of one nation for all. North Dakota has enacted a number of laws to ensure that all citizens are protected equally and has a history of addressing human rights issues of its citizens. Examples of such efforts follow.

In 1889 the North Dakota Constitution created the Department of Agriculture and Labor. Seventy-one years later, during the primary election in 1960, voters approved a constitutional amendment authorizing the legislature to establish a Department of Labor, separate from Agriculture. After 5 years, in 1965, State legislation created the current Department of Labor (discussed in chapter 2).^[1]

Over 20 years ago, during the 1977 legislative session, two bills relating to human rights were considered, and both failed to pass.^[2] One bill was introduced to provide a human rights act known as the North Dakota Human Rights Act of 1977. ^[3] The proposed legislation included provision for an appropriation, and the act would have also required the establishment of a North Dakota Commission on Human Rights. ^[4]

The bill prohibited discrimination because of race, color, creed, religion, sex, ancestry, national origin, age, marital status, the presence of a disability, or status with regard to public assistance. The bill also specified a complaint procedure, defined discriminatory practices, and provided for enforcement and judicial review of a commission order.^[5]

Senator Wenstrom, the bill sponsor, as part of his testimony, explained that since 1957, as a member of the North Dakota Legislature and from his involvement with other organizations, the question of discrimination has always been one of the chief topics of . . . discussion. ^[6]

A task force and citizens committee had worked on the bill for 20 months. Gary Cardiff of Bismarck, a task force representative, testified that problems in North Dakota regarding human rights laws and a means for rectifying discrimination in the State were important.^[7] He stated that the group had also presented the Governor a list of needs, which included equal employment opportunity, equal credit opportunity, equal housing, and age discrimination protection. The task force recommendation included a 1-year budget (1977 1978) for the establishment of a human rights commission.^[8]

Written testimony in support of the bill and the creation of a human rights commission was also provided by the Bismarck chapter of the National Organization for Women (NOW). The written testimony explained that North Dakota women face discrimination because of their sex in employment, housing, and in obtaining credit.^[9] The Bismarck chapter of NOW became so concerned over the number of women in [the] State with employment discrimination complaints that it attempted to inform women of their basic rights through a pamphlet titled North Dakota s Vital Natural Resources, Legal Leverage in the World of Work. ^[10]

Despite the testimony and proposals, the Senate Social Welfare Committee indefinitely postponed Senate bill 2424, and in its final report stated:

The committee felt that prohibitions against discrimination because of race, color, religion, national origin, sex, age, marital status, the presence of any sensory, mental, or physical disability, or status with regard to public assistance as required by this bill were too sweeping and inclusive. In addition, most such prohibitions are prohibited by federal law and by that, were not warranted on the state level.^[11]

A few weeks later, during the same legislative session (1977), Senate Concurrent Resolution 4079 was passed. The resolution directed an interim study by the Legislative Council of the feasibility of enacting comprehensive human rights legislation in North Dakota.^[12]

While studying the human rights issue and receiving testimony over a period of several months, the Interim Committee on Social Services also proposed a draft bill for submission during the next legislative session (1979) that forbade discrimination and provided for an independent commission on human rights administered by separate compliance and advocacy divisions, including a complaint procedure, enforcement powers, judicial review, and local human rights commissions.^[13] However, after all information was received and evaluated, the Committee on Social Services also elected not to take a position on the matter and made no recommendation concerning the human rights study.^[14]

However, the citizens of North Dakota continued to voice their concerns with discrimination in the State.

Five years later, in 1983, the North Dakota Human Rights Act became law (discussed in chapter 2).^[15] In December 1984, a year after the passage of the act, the North Dakota Advisory Committee to the U.S. Commission on Civil Rights held a miniforum in Bismarck to discuss the act and determine if it was working as the law had intended it to.^[16] Testimony received during the miniforum suggested that the Human Rights Act had no enforcement powers and was weak and ineffective because the State had not provided funds to operate or enforce its own employment discrimination law, in addition to the other areas of discrimination covered under the act.

In 1985, as a public service by the Information and Service Committee of the State Bar Association of North Dakota and the Governor's Council on Human Resources, a booklet titled The North Dakota Human Rights Act and You was produced and distributed statewide.^[17] The booklet offered a description of the Human Rights Act and its purpose and explained specific topics and definitions within the act. It also provided a number of general discussions concerning areas of discrimination covered and not covered by the law.

In October 1987, the U.S. Equal Employment Opportunity Commission (EEOC) designated the North Dakota Department of Labor as a Fair Employment Practices Agency after signing a workshare agreement with the EEOC's Denver District Office.

Additionally, the need to examine discrimination and gender inequities in the legal system was a growing concern in the State. In 1987 North Dakota was one of the first States in the Nation to study gender fairness in the judicial system. Under the auspices of the North Dakota Supreme Court Judicial Planning Committee, a subcommittee consisting of attorneys and judges reviewed court records and other related data, including available anecdotal and statistical information regarding gender-related issues. The subcommittee found information pointing to the existence of gender inequities in North Dakota affecting both men and women, but more negatively affecting women.^[18] Among a number of issues, the subcommittee noted the impact of the dramatic increase in the number of women law students and women practicing law in North Dakota, suggesting a need to assess the legal system's adjustment to a gender-integrated profession. It highlighted the need for more data to be collected and recommended the formation of a task force to conduct a more comprehensive study of the issues associated with gender fairness in the courtroom.^[19]

In 1988 the Supreme Court Committee and the State Bar Association of North Dakota separately recommended the State set up a commission or task force to investigate such fairness issues. However, there was no money in the State budget to pay for the commission's work.^[20] Six years later funding was appropriated, and in 1994 the Commission on Gender Fairness in the Courts was established.^[21] North Dakota Supreme Court Justice Beryl Levine was a driving force behind this accomplishment, and North Dakota joined 40 other States and 5 (out of 11) Federal court circuits that had already set up or were in the process of setting up such task forces.^[22]

In 1991 the State legislature established the Martin Luther King, Jr. Holiday as a State holiday, although 8 years earlier in 1983, it had become a national holiday enacted by Congress.^[23] The Martin Luther King, Jr. Holiday Commission was responsible for the already established Federal holiday being adopted as a State holiday in North Dakota, and commission members worked tirelessly to promote and celebrate diversity and reduce discrimination in the State. However, even with these efforts, discrimination continued to be of major concern for many North Dakotans.

During April 1994 women gathered in Bismarck to provide guidance to the Governor s Commission on the Status of Women with regard to a number of issues affecting women in North Dakota.^[24] Conference participants narrowed down their list of concerns to the following: job security and employment accessibility; economic and social family issues; rural access to services; health care accessibility, coverage, and research equity; violence; discrimination; self-esteem; child care access; sexual harassment; and equal employment and wages.^[25] The conference, funded by the U.S. Department of Labor Women's Bureau, generated a needs assessment report, which was presented to Governor Ed Schafer and his Commission on the Status of Women.^[26] The needs assessment outlined 10 issues that were identified as the needs and concerns of North Dakota women, and the nine-member commission planned to establish subcommittees and use each of the 10 issues raised to select project topics.^[27]

One of the initiatives to assist in efforts to challenge racism in North Dakota suffered a setback during 1995 when, according to community organization representatives and citizens, Governor Ed Schafer eliminated the North Dakota Martin Luther King, Jr. Holiday Commission.^[28] The elimination of the nonfunded commission was announced during the Governor's State of the State address,^[29] and came as a surprise to commission members and many others^.[30] Governor Schafer decided to eliminate the commission because, in his evaluation, it had met its initial purpose to draft legislation to recognize King s birthday as an official State holiday. A spokesperson for the Governor said the removal of the commission was part of Schafer's attempt to make government more efficient and reduce the number of commissions that have outlived their usefulness. ^[31] Commission Chairwoman Ora Robinson thought that the work of the commission could easily have been used as the foundation for setting up a human rights commission in the State.^[32] North Dakota was one of four States in the country the others Alabama, Arkansas, and Mississippi not to have a human rights agency.^[33] Martin Luther King, Jr. Holiday Commission members thought the commission went beyond its initial role by assisting with racism complaints and compilation of statistics. It also coordinated events to celebrate diversity, confront injustice, and promote respect for the freedom and equality of all people, in addition to giving two awards annually.^[34] Commission members vowed to continue to educate the citizens of North Dakota and hoped that the Governor would reconsider his decision. However, the Governor did not rescind his decision, and the Martin Luther King, Jr. Holiday Commission was severed of State affiliation. Former commission members filed incorporation papers, and the commission functions as an independent body as members continue to work toward the elimination of discrimination in the State.

In 1995 Tom Disselhorst, general counsel for the Turtle Mountain Chippewa Tribe, indicated his desire to see if he could get a legislative sponsor to introduce a bill that would study the need for a human rights commission. He envisioned a commission, funded by the State, as a vehicle to investigate and make determinations on discrimination claims, enable people to get information on settling complaints, and in some cases, provide legal representation for individuals who could not afford to hire an attorney.^[35] Through his and others efforts, interest heightened around the need for some mechanism to strengthen the Human Rights Act. Members of the Martin Luther King, Jr. Holiday Commission, American Civil Liberties Union, American Federation of State, County and Municipal Employees, and other North Dakota citizens^[36] felt the strong need to voice their concerns to as many people as possible, and finally, their concerns were taken to the State legislature.^[37]

During the 1995 54th Legislative Assembly of North Dakota, Senate Concurrent Resolution 4054 was introduced,^[38] directing the legislative council to study the feasibility and desirability of establishing a State human rights commission with the power and duty to investigate and provide remedies in cases of discrimination against residents of North Dakota because of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, and status with regard to marriage or public assistance resulting in a loss of civil rights. The Senate Government and Veterans Affairs Committee received testimony from a handful of people in favor of Senate Concurrent Resolution 4054. Many others who came to the standingroom-only meeting to support the resolution were turned away from the podium for lack of time.^[39] No one testified against the resolution. Senator Kit Scherber testified that the proposed study would address equal protection, laws against discrimination, investigation of discrimination by State agencies, the absence of a State agency with the power to investigate, and limited remedies regarding discrimination cases. She said there needs to be access to a State agency to provide remedies, specific enforcement options, and a means to address complaints.^[40] After numerous testimonies from State agency personnel, community and private organization representatives, the business community, and private citizens,^[41] the resolution was moved forward for further consideration.

The Senate approved the resolution by a vote of 47 0. A Bismarck Tribune editorial succinctly pointed to the critical need for the State legislature to take action. Following are excerpts:    

The request is minimal. Have the Legislative Council study the feasibility of establishing a State human rights commission. This proposal is one our State Legislature should have no trouble moving along and putting its council to work on.

That the road to the creation of a human rights commission has to take this circuitous route speaks volumes about the need for such a commission. But the approval of the study resolution would indicate the State has some interest in at least looking at a problem and seeking ways to meet a need. 

Can there be anything more important worth studying?^[42]

On March 13, 1995, the House held a committee hearing and again Senator Scherber introduced the legislation. She explained that there is a need for this legislation in North Dakota and encouraged the committee to give it serious consideration.^[43] At this hearing individuals testified in favor of the resolution and again there was no testimony against it,^[44] and the vote passed unanimously.^[45] However, after further consideration, the resolution failed 10 days later in the House on March 23, 1995.^[46]

Representative Cathy Rydell expressed her opinion of why the measure failed, and explained that there was no need for a debate because the legislature has continually tried to limit the number of commissions.^[47] Representative Marv Mutzenberger said there was a mood in the legislature not to create anything new, which directly affected the bill.^[48]

During 1995 and 1996, events that were not orchestrated or initiated by State government or its agencies or commissions made headlines in North Dakota. Citizens of the State experienced various forms of discrimination, including acts related to housing and employment. In addition, legal services to low-income residents were cut. Representatives of the North Dakota Fair Housing Council met with the mayor of Fargo to discuss how the city addressed fair housing issues in gathering preliminary information for an analysis of the impediments to fair housing in that community.^[49] A statewide poll of North Dakota women found, among other issues, that women felt discriminated against, sexually harassed, and underpaid. Fargo women reported the most discrimination (38 percent), Bismarck area was second highest (30 percent), and Williston the lowest (18 percent); and one in five women felt they had been sexually harassed.^[50] The Supreme Court Commission on Gender Fairness in the Courts, over a period of several months, conducted hearings across the State in Bismarck, Devils Lake, Dickinson, Fargo, Grand Forks, Jamestown, Minot, and Williston, and heard cases of unfair treatment of women in North Dakota's courts.^[51] Landlords discriminated against Native Americans who applied for rental housing in the State.^[52] Legal Assistance of North Dakota, a nonprofit organization, was forced to limit severely services to the poor and elderly because of a shrinking budget. This organization helped many citizens with social security disability appeals and family law issues.^[53]

Appendix A exemplifies how discrimination can negatively affect an individual, a family, and a community. The author shared through a newspaper article her disgust that discrimination has continued to flourish. A city of Mandan community activist also confirmed that discrimination exists and once again expressed the need for a human rights commission at the State level as well as the need to establish chambers of commerce and city human rights committees (see appendix B). These developments and others not mentioned in this report, again, made it difficult to ignore the need to address civil rights in the State.

The 1997 legislature passed Senate Concurrent Resolution 4036 to study the question of discrimination in North Dakota.^[54] This resolution was a substitute measure in place of establishing a human rights commission, as many citizens had repeatedly called for. Later that year, Representative Darrell Nottestad explained that the Interim Judiciary Committee had the opportunity to study this issue, and the results would give the committee a good idea as to the level of discrimination in North Dakota, information necessary to make recommendations for legislation, and data to determine whether a civil rights commission is needed.^[55]

The duties charged to the Interim Judiciary Committee were specific and are outlined in appendix C. In summation, the Interim Judiciary Committee was assigned to: 

1. determine if there were instances of discriminatory actions in violation of State and Federal laws;

2. determine if discriminatory actions existed and determine if existing State agencies have the power to enforce remedies;

3. examine the membership, structure, authority, duties and responsibilities, and funding of commissions in other States; and

4.  report its findings and recommendations, together with legislation for implementation, to the 56th [1999] Legislative Assembly.^[56]

In addition to the discrimination issue, the Interim Judiciary Committee was also responsible for studying three other topics.^[57] The legislative council delegated to the committee the responsibility to review uniform laws recommended to the legislative council by the Commission on Uniform State Laws, review statutory and constitutional revisions, and review the authority of the Attorney General to enter contingent fee agreements with private attorneys.^[58]

The Interim Judiciary Committee held several meetings across the State between July 1997 and November 1998, and received testimony from numerous individuals, representatives of State and local government agencies, business and private organizations, elected officials, and others representing women and people with disabilities. A major portion of the testimony focused on the lack of State remedies for discrimination complaints and the need for a centralized State agency empowered to receive and investigate discrimination complaints.^[59] The South Dakota Commission on Human Rights shared details of the operation of that agency. North Dakota State agencies and departments were asked to maintain data by tracking the number and nature of calls they receive and to provide a summary of statistics generated.^[60] The survey revealed that the Governor's Office and the North Dakota Department of Human Services were contacted most frequently. A representative of the North Dakota Department of Human Services testified that the department receives 10 to 20 claims of discrimination per month in a variety of areas, including employment, education, housing, disabilities, public assistance, and public accommodations.^[61]

The news media provided extensive coverage of the activities of the North Dakota Fair Housing Council, a private nonprofit agency that receives Federal funding from the U.S. Department of Housing and Urban Development to investigate unfair housing.^[62] The North Dakota Fair Housing Council was invited to make a presentation before the Interim Judiciary Committee and provided an overview of fair housing law. Agency director Amy Nelson explained that investigated complaints where housing discrimination has been verified are forwarded to the U.S. Department of Housing and Urban Development in Denver for further action.^[63] After the council's presentation, the committee appeared to shift its focus from all forms of discrimination and the need for a human rights commission to housing discrimination specifically.

The Interim Judiciary Committee did not follow its study plan (see appendix C) closely, nor did it fully address specific issues outlined in the resolution. As a result, the committee lost sight of its initial charge to determine the degree of discrimination in the State and to determine current and additional remedies, including educational initiatives to prevent discrimination. Instead, the committee recommended House bill 1043 for introduction during the 1999 legislative session, to repeal the current housing discrimination statutes and create new housing discrimination laws to meet Federal law equivalency. The bill included the procedures for filing a housing discrimination claim and the remedies available to a person when a finding of discrimination is made. The bill designated the North Dakota Department of Labor as the agency responsible for receiving and investigating housing discrimination claims.^[64] Unfortunately, the State legislature and citizens are no closer to determining, once again, the level of discrimination in North Dakota and whether a human rights commission is needed.

Although the North Dakota Human Rights Act has been on the books since 1983, discrimination complaints continue to rise, and State legislators have yet to see the importance of allocating funds to protect its citizens from denial of their basic rights.^[65] Further, there is no State agency charged with investigating complaints of alleged violations of provisions of the State statute that deal with matters other than employment discrimination. And even then, employment discrimination complaints are limited to investigations, negotiated settlements, or conciliation agreements. None of the other prohibitions against discrimination in the North Dakota Human Rights Act is enforced.^[66]

In addition to these facts, many public and private organizations, as well as North Dakota citizens, have called for a mechanism to act on the types of discrimination set out in the State statute.^[67] Many suggestions or proposed alternatives point back to somehow better utilizing the Human Rights Act so that it will work effectively for North Dakota citizens.           

The North Dakota Human Rights Act is seemingly a strong piece of legislation, but many concerns have been raised to the North Dakota Advisory Committee to the U.S. Commission on Civil Rights that merit exploration and raise questions about the adequacy of efforts to enforce the act. Some of the allegations and assertions brought to the North Dakota Advisory Committee included:

1. Employment, housing, and other areas of discrimination are commonplace in North Dakota.

2. Antidiscrimination provisions of the North Dakota Human Rights Act are not well publicized and are not readily known by the general public.

3. The act's effectiveness is reduced because of the absence of a single State agency to enforce the act.

4. The State provides inadequate financial resources to the North Dakota Department of Labor to investigate and resolve complaints, and violations of the State statute must be taken to district court for remediation.

5. Though reasonable attorneys fees in discrimination cases may be awarded to the prevailing party at the discretion of the court, taking a complaint to court is time-consuming and expensive, and has a chilling effect on efforts by injured parties to seek relief.

6. Except for alleged employment discrimination, complaints of discrimination in violation of Federal statutes must be lodged with enforcement agencies in Denver, Kansas City, Missouri, or Washington, D.C. The remoteness of these agencies and lack of information about procedures to initiate such complaints inhibits the filing of complaints.

Endnotes