Whenever someone tells you that a proposed bill “clarifies” something or “simplifies” existing law, you should view such talk with a dose of healthy skepticism.
Indeed, viewing the written testimony of CHRO Executive Director Robert Brothers in support of Senate Bill 1164, you could be left with the impression that the changes being proposed to the state’s anti-discrimination laws were nothing more than technical in nature.
But a more detailed review of the proposed bill reveals significant changes to how the state processes anti-discrimination complaints and what the scope is of such laws. It would seemingly add emotional distress damages, for example, to the relief available at a public hearing for the first time.
To be fair, some of the changes really are technical in nature, such as to make the statute more gender neutral. The problem is that such innocuous changes are lumped together with the significant ones.
The Office of Legislative Research’s summary of the bill is far more complete than the CHRO testimony and highlights some of the substantive changes, but even that office’s summary misses some troubling changes.
Here are three (among many) notable items from the bill worth a review, illustrating why this rushed bill is a bad idea at this time.
Changes to “Mental Disability” – The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’, but also to including having “a record of or regarding a person as having one or more such disorders”.
Put aside, for the moment whether including everything in the new DSM5 is worthwhile, the new bill would cover “regarded as” claims for mental disabilities for the first time. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.
More problematic is that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?
Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly. Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.
Addition of “Emotional Distress” Damages — The CHRO has long sought the recovery of emotional distress damages (a subject I’ve covered here) at the public hearing stage, but it has been routinely been rejected by the courts. The CHRO has argued that the statute allowed for damages to make the Complainant whole.
The problem for the CHRO has been that such language wasn’t in the statute itself. With the addition of one small, seemingly innocuous clause, this bill would dramatically increase the types of damages available to a Complainant by now allowing a hearing officer to “make the complainant whole” — the exact argument it has been making for years.
Thus, with the passage of the bill, compensatory damages and all sorts of relief would be available — changing the hearings at the CHRO. One can only imagine the other types of “make whole” relief that could be issued at the public hearing.
Mr. Brothers’ testimony suggests that this section is “consistent with court cases requiring action to make complainant whole.” The problem is that the court cases have consistently ruled against the CHRO’s position. There are no major cases that suggest that emotional distress damages are available. This bill would change that.
Not content with that change, the bill would try to formalize the other argument the CHRO has raised — namely that it has the power to enforce federal laws on anti-discrimination. That is significant because it would allow the CHRO to include damages that had never before been allowed. The result would be the same as before: the introduction of additional damages at a public hearing stage.
“Future” Discrimination? Another provision worth mentioning is in Section 2 (line 191) of the bill. Under this new provision, employees who have not yet been discriminated against, but who believe discrimination is “about to occur”, could still file a discrimination complaint.
Of course, the obvious question is “for what?” The law only covers actual discrimination, not possible discrimination. But would this language change things? Could you now file a claim for “future” discrimination? When does the statute of limitations begin to run on discrimination that is “about to occur”?
What’s The Takeaway? These are but just three examples of how a seemingly “technical” bill is being used to make significant changes to the state’s discrimination laws with barely any public hearings or review.
This is not something that should be rushed through; there is no “crisis” that needs to be addressed.
The General Assembly would be wise to circulate these changes among all the constituency groups and save the wholesale changes for 2014.