U.S. Commission on Civil Rights

Civil Rights Enforcement Efforts in North Dakota

Chapter 2

State Initiatives to Address Discrimination

North Dakota Human Rights Act 

In 1983 a successful attempt to address civil rights concerns in the State was made by Representative Rosie Black when she introduced to the House Judiciary Committee bill 1440, the Human Rights Act, during the 48th Legislative Assembly of North Dakota.^[1] The North Dakota Human Rights Act was enacted by the State legislature and became effective on July 1, 1983.^[2] North Dakota's State policy against discrimination said:

It is the policy of this State to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, or status with regard to marriage, or public assistance; to prevent and eliminate discrimination in employment relations, public accommodations, housing, State and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination, or coerce others to discriminate.^[3] 

The Human Rights Act bill was touted as being modest; complainants could take their cases to State court rather than Federal court; the bill would not impose an added cost to taxpayers because no additional agencies would be created; and the act would have no investigative powers. Proponents also explained that the Human Rights Act would establish a State policy against discrimination. The bill would tailor the rights of North Dakotans to dovetail with North Dakota situations rather than being mandated by the Federal Government. Enacting the bill would simply say that North Dakota does not sanction bigotry and prejudice. Individuals who spoke on behalf of the legislation provided examples of discrimination in employment, business transactions, housing, education, and public accommodations.^[4]

Those in opposition to the bill stated that the North Dakota Department of Labor could adequately handle discrimination complaints under Federal guidelines;^[5] the bill goes beyond Federal regulations; although previous studies had been conducted, more study needed to be done; and it would take away citizens rights.^[6] There were others who were in opposition to the bill but chose to remain silent. A representative of a statewide real estate organization noted that his organization's legislative committee was not happy with the Human Rights Bill but they told me not to oppose it. ^[7]

With those concerns, the North Dakota Advisory Committee, chaired by Robert A. Feder, conducted a miniforum in December 1984 specifically to address the act.^[8] Although the act had been State law for over a year, the extent of its effectiveness was unclear. Eleven individuals representing State agencies and commissions, private businesses and private associations participated in the daylong event. The conclusion drawn from the testimony of invited participants indicated that the act needed improvement. Following are excerpts:           

• Al Thompson, a private contractor employed by the North Dakota Department of Labor, said while the State had the authority (under the Human Rights Act) to investigate employment discrimination complaints against employers with 10 to 14 employees, complainants in these cases were advised that they should seek private action in the courts because the State provided no funds for enforcing its own employment discrimination law. He suggested that it would be helpful if administrative procedures were available to complainants filing under the State statute, but in the absence of funds, this was not possible.^[9]

• Adrian Crowfeather, civil rights officer for Job Services of North Dakota, said There should be more awareness, educational programs . . . in regard to the Human Rights Act. He also said that a person out of work would unlikely have the funds necessary to secure a private attorney to file a discrimination action.^[10]

• Joe Koenigsman, State monitor advocate for Job Service of North Dakota, who worked primarily with seasonal migrant workers, advised that one major problem in trying to resolve civil rights complaints was that his agency had no enforcement powers. With respect to the Human Rights Act and the lack of funding for enforcement of its provisions, he said, I do not feel that you should make a law and then just say to the population at large you can take it to court. In the absence of funds for administrative relief, the law is weak and ineffective, he concluded.^[11] 

• Keith Magnuson, associate director and staff counsel for the North Dakota Bankers Association, indicated that the Human Rights Act had no measurable impact on his industry because of the already existing Federal laws and regulations applicable to credit discrimination.^[12]

• Richard Gray, program manager, Community Development Block Grant Program, North Dakota Office of Intergovernmental Assistance, stated that the Human Rights Act would be helpful in his department's efforts to promote affirmative fair housing policies; however, after sharing the new Human Rights Act with officials of the U.S. Department of Housing and Urban Development, they expressed concern that in the absence of any enforcement mechanism, there are no assurances that enforcement will actually be effected.^[13]

Although the Human Rights Act was now State legislation, few people were aware of the act and no dollars were appropriated by the State legislature to carry out the mandates. Juanita Helphrey of the North Dakota Commission on Indian Affairs stated that to her knowledge no information had been disseminated to citizens on the Human Rights Act and its implications. She reminded the North Dakota Advisory Committee of her involvement in pushing for the legislation: We also felt that if we could get this bill passed . . . we could look for appropriations or creation of a human rights agency in the future. Noting that housing discrimination against Native Americans is severe and extensive, she also said that the law would not be of any assistance in the absence of an administering State agency.^[14]

In 1991 the North Dakota Legislature further expanded the Human Rights Act to govern businesses that employ 1 or more workers instead of 10 or more workers,^[15] making it more comprehensive than Federal statutes that limited jurisdiction to employers with 15 or more employees.^[16] Additional legislation also made it unlawful to discriminate against anyone who participated in lawful activity off an employer's premises during nonworking hours.^[17] However, many North Dakota employers were unaware of the change to govern a broader number of businesses. The Bismarck Tribune reported that Commissioner of Labor Craig Hagen said the bill received little attention because he preferred to lobby legislators one-on-one.^[18] When it became law, his office actively notified employers of the legislation, he said. But Russ Richards, chairman of the Bismarck-Mandan Chamber of Commerce's retail committee, said the new legislation was still extremely little known. Mr. Richards said he made it a habit to pursue information from various sources, but had never seen reference to the Human Rights Act change.^[19]

North Dakota s policy of nondiscrimination was somewhat confusing due to how it was referenced in the State statute. To provide a better reading of the Human Rights Act, the State legislature in 1997 decided to make the North Dakota Century Code Chapter 14 02.4 more definitive and passed an amendment changing the chapter title from Discrimination to Human Rights (see appendix D).^[20]

Fifteen years since its inception, the State policy on discrimination continues to prohibit discrimination in employment, public accommodations, housing, State and local government services, credit, marital status, disability, or public assistance. But the State provides no funding, and no available avenues or remedies exist to protect citizens who experience discrimination, except in the area of employment. Complainants who attempt to seek relief for alleged discrimination in the other areas covered by the North Dakota Human Rights Act must take action themselves by hiring an attorney and taking their complaint through the judicial system, or contacting a Federal agency.

Keith Elston, executive director, American Civil Liberties Union, North Dakota chapter, noted that the North Dakota Human Rights Act, since its inception in 1983, has been amended and improved four times.^[21] In his opinion, the legislature must feel that the Human Rights Act is an important set of laws or they would not have spent valuable time fine-tuning it.^[22] However, the lack of a real enforcement mechanism contributes substantially to the perception of the Human Rights Act as simply a paper tiger providing no tangible protection for the rights of North Dakotans.^[23]

North Dakota Department of Labor

Since 1983 the North Dakota Department of Labor has been responsible for investigating complaints of alleged discrimination in employment under the North Dakota Human Rights Act. In 1987 the North Dakota Department of Labor entered into a contractor relationship as a 706 agency with the U.S. Equal Employment Opportunity Commission (EEOC), Denver District Office.^[24] At that time, the North Dakota Department of Labor only had jurisdiction, under Federal statutes, to investigate complaints regarding employers with 15 or more employees. The EEOC paid the North Dakota Department of Labor for this service under Federal guidelines; however, no funds were provided to the agency for investigation of complaints under the North Dakota statute. Additionally, under the Human Rights Act, an aggrieved person may bring action in State district court within 3 years of the alleged wrongdoing.^[25]

North Dakota Commissioner of Labor Craig Hagen spoke before the North Dakota Advisory Committee and said his agency intakes, investigates, and attempts to resolve charges of employment discrimination on behalf of the Federal Government^.[26] In North Dakota a claimant must establish a prima facie case, and the individual has 300 days to file the complaint.^[27] The North Dakota Department of Labor does not have enforcement powers and can only encourage settlement of a claim through negotiations or mediation^.[28] If there is a determination of merit, conciliation takes place. If conciliation is not successful, then the complaint is forwarded to the EEOC in Denver for action under Federal statute.^[29] The backlog of cases the EEOC has for charges from North Dakota is 1 to 3 years for resolution.^[30] Commissioner Hagen said that in North Dakota it takes approximately 1 year to process a charge of discrimination from open to close when the complaint meets the jurisdictional requirements. For those that do not meet the Federal jurisdictional requirements but simply meet the Human Rights Act requirements, it takes approximately 6 months from open to close for a resolution.^[31]

For the title VII, Age Discrimination in Employment Act (ADEA), and American with Disabilities Act (ADA) cases, the North Dakota Department of Labor is reimbursed by the EEOC $500 for each case filed, investigated, and resolved under the EEOC contract.^[32] The agency also serves as a referral agent for the Equal Pay Act on behalf of the EEOC. For those cases that fall under the Equal Pay Act, the agency is paid $50 and the cases are referred directly to the EEOC District Office in Denver.^[33] The contract approved under the EEOC is based on a fiscal year and consistently has increased, allowing North Dakota to handle more and more charges each year.^[34] Commissioner Hagen said, Legitimately filed each year, there are probably 10 to 20 discrimination complaints out of 120. However, the North Dakota Department of Labor has never refused to accept a charge of discrimination. In 1994 there were 145 complaints, and 1995 saw a slight decrease in complaints filed.^[35]

In 1995 the North Dakota Department of Labor processed 125 complaints of discrimination in employment.^[36] Table 1 illustrates the number of complaints filed in 1995, including 117 of those that met the jurisdictional requirements for the EEOC. Eighty complaints were filed on the basis of sex, 16 on the basis of race, and 2 each regarding color, national origin, and religion (see table 1). The Age Discrimination in Employment Act has jurisdiction for complaints from employers with 20 or more employees; and for Americans with Disabilities Act complaints, the threshold is 15 or more employees.^[37] The North Dakota Department of Labor accepted 32 complaints under the ADEA and 28 complaints under the ADA (see table 1). Complaints filed with the North Dakota Department of Labor against another State agency are also automatically referred to Denver for processing. Commissioner Hagen said that the department would prefer to handle those cases within the State because his agency could do a better job and also process them more expediently.^[38]

The 117 complaints that were under Federal guidelines are detailed in table 2. The North Dakota Department of Labor found probable cause in only 1 case, while there were 40 no probable cause findings. Fifteen people withdrew their cases from the system to pursue their claims in court. Results show, according to Commissioner of Labor Hagen, that there is not an overwhelming employment discrimination problem in North Dakota.^[39]

Commissioner Hagen said the State receives $55,650 from the Federal Government, which subsidizes one employee. The one employee, based on the number of complaints filed, is satisfactory to handle effectively all charges of employment discrimination that are filed with the North Dakota Department of Labor, he said. The agency receives 45 calls a month regarding discrimination, which equates to about 4 percent of the total (1,125) employment inquiry calls received in a month. He further stated that if there continues to be an increase in discrimination complaints and a reduction in the North Dakota Department of Labor's budget, then funding to provide adequate services will have to be addressed.^[40]

The fact that the State is fortunate to have so few cases does not mean the State should lessen its enforcement efforts. Commissioner of Labor Hagen said:

We're meeting the needs of North Dakotans and no further regulatory action needs to be taken when it comes to employment discrimination; however, continued education on the issue is the State's greatest remedy. Ensuring that employers and employees are aware of discrimination laws, and . . . informing citizens of the avenues that are already available to them for resolution should be the focus of our State effort.^[41]

 He explained that the North Dakota Department of Labor takes a proactive approach in that the agency reaches about 1,000 people a year through educational seminars, conferences, forums, and presentations.

Commissioner Hagen has four staff who travel across the State conducting employment and labor law seminars that reach countless employers. Other sources of advertisement include publication in at least 12 trade organization newsletters, work with the State's chamber of commerce and organized labor, and classroom involvement with vocational education teachers and instructors across the State.^[42]

Commissioner Hagen conceded that his office does not necessarily do affirmative advertisement on radio or television throughout the year; however, he noted that he had recently been averaging one major media press conference a week regarding issues of employment in North Dakota.^[43] The commissioner of labor said that he does not see it as the responsibility of [his] agency to inform every employee of the employment laws governing employment in North Dakota [because] it is available to them to make themselves familiar with it. ^[44]

When Commissioner Hagen was asked if North Dakota citizens are aware of the agency, because it has been reported that many other State, local, and private agencies receive calls regarding employment discrimination, he responded, You can't reach every citizen, you can't reach every worker out there and make them aware of what the legal provisions are that govern employment in North Dakota, but what you can do is make a good faith effort. ^[45] He explained:  

Now, just because the numbers are low in North Dakota is not an indication that we're not reaching the public. . . . It is an indication . . . that employment discrimination in North Dakota is being handled effectively, that it is not a pervasive problem. If it was a pervasive problem, you would have people lining up at the doors of attorneys in North Dakota or at the district attorney s office or at some public forum to complain. We would have them out there making noise that they are not being represented, and we don't have that occurring . . . and that's why I will suggest and stand by the statistics of the office that there are probably only a dozen or so legitimate cases of employment discrimination in North Dakota, and it's basically because we're a fair people and our employers are fair.^[46]

Despite this assessment, recent statistics obtained from the North Dakota Department of Labor indicate that inquiries to the EEOC are on the rise in the State. Between February 1996 and December 1996, 742 employment discrimination inquiries were received.^[47] In 1997 the agency received 1,465 inquiries, with 966 relating specifically to employment discrimination. In 1998 the agency received 2,582 calls, with 2,050 relating specifically to employment discrimination.^[48]

Others did not hold the same sentiment as Commissioner Hagen regarding the effectiveness of the North Dakota Department of Labor.

The U.S. attorney, John Schneider, District of North Dakota, stated that he had not heard of any results coming from the North Dakota Department of Labor. While in private practice, he found it unsatisfactory to ever go to the department because it slowed the process down. He said, Never once [did I] ever see them prosecute a civil rights case themselves. So to think we have an [effective] agency right now I think is erroneous. ^[49]

Critics of the agency voiced the following inadequacies:

Russell D. Mason, Sr., former chairman, Three Affiliated Tribes, stated:  

The North Dakota Department of Labor cannot bring an action in court against an employer who is discriminatory.^[50] The agency has no education component associated with its investigative efforts. Further, with but one staff member investigating employment discrimination claims from Bismarck, efforts to understand where there might be systemic discrimination and patterns of discrimination are never undertaken. The Department of Labor's investigative services are not very well known, again from lack of staffing and funding, particularly in rural areas. Even when people are aware of the agency, its lack of teeth suggests that is it will not be able to accomplish very much in terms of an effective remedy.^[51]

 David Gipp, president of United Tribes Technical College, said: 

Because we are constantly seeking to place our graduates in productive jobs, employment opportunities are critical. Complaining to the North Dakota Department of Labor about employment discrimination in State government does not seem likely to produce adequate results.^[52]

A private citizen wrote:

Filing a complaint with the North Dakota Department of Labor alleging age discrimination against a former employer proved futile and a waste of time. After filing the initial discrimination charge, I was never contacted for further information nor were the witnesses I provided as corroboration ever contacted. Many other North Dakota residents, aware of my complaint have told me if you have any kind of employment or discrimination questions, don't go to the North Dakota Department of Labor because they will not help you. Calls placed by my wife to the agency were unproductive. She expected a little bit of understanding and help, but she certainly did not get it. It was suggested that I contact the Minnesota Department of Labor to get my questions answered.^[53]

Finally, a former North Dakota lieutenant governor provided in an article in the Bismarck Tribune a brief history of the labor commissioner, an elected position, and wrote: During the 28 years of existence, the agency has never measured up to expectations . . . to put it bluntly, people do not know enough about the office to make a judgment on its performance. The author recommended that the position become Governor-appointed because he will be more concerned and more informed about the conduct of the office than all of the voters combined. ^[54]

Endnotes