North Dakota’s Unfair Hurdles in our way of Seeking Justice

By Tom Fiebiger
Contributing Writer

I read with both frustration and sadness The Forum’s recent article “Fired employee accuses Macy’s of discrimination.”  The story spent the last half setting out how busy the North Dakota Department of Labor apparently is investigating discrimination claims. But there is more to the story.

Having worked as a civil rights lawyer representing North Dakotans in discrimination cases for 20 years, I believe with all my heart that my fellow North Dakotans believe in equality and justice – and a fair process. Unfortunately, that is not what my experience has revealed.

The Department of Labor states that in the 11 months from July 2009 until June 2010, they had 363 claims of discrimination. While 46 were “resolved with a settlement,” only 4 cases led to findings of probable cause that employees had been discriminated against.  Four out of 363 is, frankly, unbelievable. And with respect to the “settlements,” how many of the employees had counsel or someone knowledgeable in the law who could advise them whether the settlement was, well, fair. I bet the majority of the employers had counsel involved advising them. Again, you get as much justice as you can afford.

Did you know if you are a state employee, say at NDSU, that you must first go through its internal process where employees hear grievances and are asked to decide whether their superiors violated discrimination laws. Then, if you do go to the Department of Labor to have your case investigated, that is not enough. You must also file a separate claim, within 180 days of the incident giving rise to the claim, with the state Office of Management and Budget, or you will have your Department of Labor claim dismissed by the Court – after the Department of Labor finds no probable cause that discrimination has taken place and tells you that you have 90 days to bring an action in court. Oh, and neither NDSU or the Department of Labor tell employees about the separate requirement to also file with the Office of Management and Budget, even if they have already filed with the Department of Labor. Are you following this? That’s part of the problem. The complicated nature of this process with unfair hurdles that have intentionally been left in place to make it virtually impossible for our working people that have been treated unequally, discriminatorily, to even get a fair and level playing field.

Did you know that if an employee files a retaliation complaint with the Department of Labor, alleging they were retaliated against, perhaps demoted or fired, for having previously complained of discrimination by the employer, that the Department of Labor has no authority to investigate the claim? All they can do is check with the employer to see if they want to mediate the claim. If the employer says “no,” which they usually do, the Department of Labor issues the employee a right to sue letter, telling them they can bring the matter to court or drop it. Our legislature has resisted efforts to change this.

Did you know that when you file a formal written complaint of discrimination against your employer with the Department of Labor that you are not even entitled to see the employer’s response to your complaint?  Our legislature has resisted efforts to change this as well.

Discrimination is a problem in North Dakota. But a system that continues to foster an unfair process for dealing with those claims of its citizens is yet another form of discrimination and, arguably, even worse. One starting point would be for North Dakotans to demand their elected officials establish an independent Human Rights Commission. North Dakota is one of a small number of states that does not have such a commission for its citizens. Another step would be to demand our legislators level the playing field and eliminate the “traps”  for our state employees. Please stand up against real injustice. When we do, you will be amazed at who shows up.

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