A bill to change the way an employer is defined in the Arkansas Civil Rights Act of 1993 is being debated in the state House of Representatives.
An employer is defined in the 1993 act as a person with nine or more employees in Arkansas for at least 20 weeks, or any agent of such person.
House Bill 1126 would delete "or any agent of such person" from the definition.
Under federal law, only an employer is financially responsible should he be found guilty of retaliation against an employee, said Wayne Young, an attorney with the Friday Eldredge & Clark firm in Little Rock.
Supervisors and other employees in Arkansas are liable in claims of retaliation, according to a 2010 Arkansas Supreme Court ruling on the Arkansas Civil Rights Act, Young said.
The state Supreme Court decided as it did because there are some conflicting federal court opinions about whether an individual can be held liable under the Arkansas Civil Rights Act, Young said.
"Some federal judges said they could [be held liable] and some said they couldn't," Young said.
HB1126 also addresses the hate offense and retaliation provisions of the 1993 act.
If an employee is being harassed because of his race, gender or a disability, the employee can't be terminated for complaining about the harassment under provisions of HB1126, Young said.
Under the proposed bill, only an employer, and not an employee, is responsible for retaliating against someone who works for the company.
When the law was passed in 1993, it was considered to be comprehensive, said Eva Madison, a Fayetteville attorney who testified before the House Judiciary Committee last week.
But one area that has become of increasing concern, Madison said, is a part of the act that most people believe was unintended. It includes sections on race, religion, national origin, gender and disabilities.
"[But] what they forgot to do, I think, in the haste of passing it in 1993 was to include retaliation protection for business, which is a big miss," Madison said. "They can't have an effective anti-discrimination statute without a retaliation protection for business."
Under the current law, an employee who is fired after complaining to a manager about race discrimination may claim he was fired for a combination of his race and in retaliation for the complaint, Madison said.
"So what we see in the lawsuit that follows, the employer is sued for harassment, which the statute was designed to do, but the individual manager is also named in the retaliation provision," Madison told the committee. "Let me tell you how stressful that is for the individual manager. These are low level managers who don't have much of money a lot of times. Oftentimes they say they didn't do what they are accused of doing. They ask me questions like, 'Am I going to lose my house? I can't afford to hire a lawyer; what am I going to do?'"
The Arkansas Civil Rights Act includes other confusing sections, Madison said.
The way the act is written, there is no provision for an individual to be sued for gender discrimination, Madison said.
"It begins to look like, 'I don't think this is really the way they intended this,'" Madison said. "The goal is not to take anything away but to go back to what I believe was the original intent behind the '93 act."
In every session since 2010, bills similar to HB1126 have been filed, but did not pass, Young said.
The state's business community, chambers of commerce in the state and other business groups are in support of the bill, Young said.
The Judiciary Committee last week sent the bill to the House and recommended its passage. The lead sponsor for the bill is Rep. Charlie Collins, R-Fayetteville.
Business on 01/31/2017