Alaska Employment Law

Sometime next week the Alaska Office of Administrative Hearings should start electronic publication of agency opinons, including those from the Human Rights Commission and the various occupational licensing bodies. 

In the meantime, here are summaries of the most recent (significant) OAH opinions from the Human Rights Commission.  The full opinions are available through a Public Records Act request to the OAH.

(1)  Sexual harassment; equitable relief.  An Anchorage women’s exercise club admitted that its owner sexually harassed a number of its female employees through vulgar comments about his and their sex lives.  The Commission adopted ALJ Rebecca Pauli’s Recommended Decision and Order, and awarded backpay and various equitable relief.  Included in the latter was an order that the employer “shall not advise or disclose to any of the complainants’ employers or potential employers [] their complaints in any fashion or the facts and circumstances involved in those matters.” 

ASCHR v. Diet-Fast, Inc., d/b/a Women’s Nautilus Club, ASCHR No. C-050-70, OAH No. 06-0492-HRC (Dec. 27, 2007)

(2)  Racial discrimination; fighting; comparators; company rules.  FedEx fired a manager for fighting with another employee who had danced with the manager’s wife at the company’s Christmas party.  The manager alleged FedEx discriminated against him because he is a Pacific Islander.  The Commission adopted ALJ David Stebing’s recommendations and found that Commission staff had failed to show that FedEx employees who had been more leniently-disciplined for fighting were similarly-situated.  Stebing noted that the other employees were not managers, had no prior discipline, or “had behaved with commendable openness in the [internal]investigation.”  

On a legal issue, Stebing stated:

Federal circuits are split on whether comparative evidence should be addressed during the fourth prong of establishing a prima facie case, or only at the third stage of the McDonnell Douglas progression, after a prima facie case has been established and the employer has articulated a legitimate, nondiscriminatory explanation for the adverse employment action. . . . The administrative law judge finds it more logical to address the comparators at the first stage.

(P. 36, n. 101)

The manager also argued that the employer hadn’t followed its own procedures in its internal investigation of the incident, but the Commission concluded:

Federal Express may have violated its own policies with respect to [the manager], but a simple violation of company procedures is not a basis for relief.  Violations of company procedures are relevant only insofar as they suggest discrimination.    

Haley ex re. Bathwell Faria v. Federal Express Corporation, ASCHR No. R-99-080, OAH No. 05-0527-HRC (Dec. 19, 2006)