EEO - Discrimination: Alaska
Federal law and guidance on this subject should be reviewed together with this section.
Author: Thomas M. Daniel, Perkins Coie LLP
- The Alaska Human Rights Act prohibits discrimination against any employee or job applicant on the basis of race, religion, color, national origin, age, sex, physical or mental disability, and marital status, changes in marital status, pregnancy, or parenthood. See Discrimination Under the Alaska Human Rights Act.
- Employers are covered if they have one or more employees. Private, nonprofit organizations and companies are not covered by the AHRA. See Coverage.
- Employees who believe they have been discriminated against can file a complaint with the Alaska State Commission for Human Rights or they can file suit directly in court. See Remedies.
- Remedies under the AHRA can include reimbursement of expenses, reinstatement, back pay, emotional distress and punitive damages and equitable relief. See Remedies.
- Anchorage has requirements pertaining to discrimination.See Local Requirements.
Discrimination Under the Alaska Human Rights Act
The Alaska Human Rights Act (AHRA) prohibits an employer from refusing employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's race, religion, color, or national origin, or because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction based on the basis of age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood. +Alaska Stat. 18.80.220.
The term employer includes a person, the state, and a political subdivision of the state, who has one or more employees in the state but does not include a club that is exclusively social, or a fraternal, charitable, educational, or religious association or corporation, if it is not organized for private profit. +Alaska Stat. 18.80.300(5). Considering this, nonprofit entities are not covered by the AHRA. Both public and private employers are covered by the AHRA. Employment agencies and labor organizations also are covered by the AHRA. +Alaska Stat. 18.80.220(a) (2) et seq.
Indian tribes are not mentioned in the AHRA, but the Alaska State Commission for Human Rights (ASCHR) has refused to exercise jurisdiction over them. The statute also does not mention Alaska Native Corporations. Corporations formed under the Alaska Native Claims Settlement Act (ANCSA), including corporations, partnerships, joint ventures, trusts, or affiliates in which a Native Corporation owns not less than 25 percent interest are exempt from Title VII. +43 U.S.C. § 1626(g); +42 U.S.C. § 2000e (b). The ASCHR ruled that ANCSA corporations are not exempt from the Alaska Human Rights Act, but employment preferences for their shareholders programs do not violate the AHRA. See ASCHR v. Village of Eyak, Decision No. 73 (January 12, 1993).
The AHRA prohibits discrimination based on the following protected classes:
- National origin;
- Physical or mental disability;
- Marital status;
- Changes in marital status;
- Pregnancy; or
Anchorage has requirements pertaining to discrimination.See Local Requirements.
+Alaska Stat. 18.80.220 prohibits discrimination in employment based upon a person's religion.Alaska follows federal law in applying the prohibition against religious discrimination, including the requirement of reasonable accommodation for religious practices. See Miller v. Safeway, Inc., +102 P.3d 282 (Alaska 2004). The AHRA allows religious organizations to make an employment decision based on religion because they are exempt from the AHRA.
Employers, employment agencies, and labor organizations are prohibited from discriminating against a job applicant or employee because of that individual's age. The AHRA does permit a distinction based on age when the reasonable demands of the position require a distinction based on the basis of age. +Alaska Stat. 18.80.220(a)(1). Unlike Title VII, which only applies to persons over age 40, the AHRA does not have a minimum age for a person to be covered by the law and therefore it may be possible to bring a claim of reverse age discrimination.
Alaska courts generally interpret the AHRA in accordance with its federal counterpart, the Americans with Disabilities Act. See Moody-Herrera v. State, Dept. of Natural Resources, +967 P.2d 79 (Alaska 1998); +6 Alaska Admin. Code § 30.910.
Under the AHRA, a physical or mental disability means:
- A physical or mental impairment that substantially limits one or more major life activities;
- A history of, or a misclassification as having, a mental or physical impairment that substantially limits one or more major life activities;
- A physical or mental impairment that does not substantially limit a person's major life activities but that is treated by the person as constituting such a limitation; or
- A physical or mental impairment that substantially limits a person's major life activities only as a result of the attitudes of others toward the impairment; or
- Being treated by others as having such an impairment; or
- A condition that may require the use of a prosthesis, special equipment for mobility, or service animal. +Alaska Stat. § 18.80.300 (14).
A physical or mental impairment means:
- A physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
- A mental or psychological disorder, including mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. +Alaska Stat. 18.80.300(15).
Because the scope of the AHRA is broader than that of the ADA (i.e., the AHRA extends to persons employing one or more employees, in contrast to the ADA's coverage of employers with fifteen or more employees), all Alaska employers should be mindful that they may be subject to state law requirements to make reasonable accommodations. +Alaska Stat. 18.80.300(5). Such reasonable accommodations must be made unless an undue hardship exists. See Moody-Herrera v. State, Dept. of Natural Resources, +967 P.2d 79 (Alaska 1998); +6 Alaska Admin. Code § 30.910.
Sexual Orientation and Gender Identity
Sexual orientation and gender identity are not protected categories in the AHRA. An executive order prohibits discrimination based on sexual orientation in state employment since 2002. Further, the Alaska Supreme Court has ruled that it is a violation of the Alaska Constitution for state and local governments to deny health care benefits to same-sex partners of public employees. See ACLU v. State, +122 P.3d 781 (2005). However, private employers are not governed by this decision and therefore are not required to provide benefits to same sex partners of their employees. +Alaska Stat. § 18.80.220 (c)(1).
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Alaska Statute 18.80.220 prohibits discrimination in employment based upon a person's marital status or changes in marital status, unless the reasonable demands of the position require a distinction on the basis of marital status. +Alaska Stat. 18.80.220(a) (1). This provision prohibits discrimination based upon the status of being married, but does not prohibit discrimination because of the particular person to whom an employee is married or engaged. Thus, an employer's decision to prohibit an engaged couple from working on the same shift at a remote site did not violate the prohibition against marital status discrimination. See Muller v. BP Exploration (Alaska) Inc., +923 P.2d 783 (Alaska 1996).
The prohibition against marital status discrimination does not prohibit an employer from providing greater health and retirement benefits to employees who have a spouse than are provided to other employees. +Alaska Stat. 18.80.220(c) (1).
Establishing a Claim of Discrimination
Alaska follows federal law for establishing a claim of employment discrimination under the Alaska Human Rights Act. The employee must first establish a prima facie case by showing:
- He or she is a member of a protected class;
- He or she was qualified for the position;
- He or she suffered an adverse employment decision; and
- The employer treated him or her less favorably than other qualified persons.
See Miller v. Safeway, Inc., +102 P.3d 282 (Alaska 2004).
If a plaintiff establishes a prima facie case, the employer can defend by articulating a legitimate nondiscriminatory reason for its decision. See Haroldson v. Omni Enterprises, Inc., +901 P.2d 426 (Alaska 1995). If the employer does so, the employee may still prevail if he or she can prove that the employer's explanation is a pretext for discrimination and that the true reason for the employment decision was discrimination. Id.
Defenses to a Claim of Discrimination - Bona Fide Occupational Qualification.
An employer may make a distinction because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood when the reasonable demands of the position require distinction based on those classifications. +Alaska Stat. 18.80.220(a) (1).
Individuals normally are not liable under the Alaska Human Rights Act because the definition of an employer under the AHRA does not include individuals. +Alaska Stat. § 18.80.300 (5) defines an employer as a "person...who has one or more employees..." However, an individual might be held liable under a provision of the AHRA making it unlawful for a person "to aid, abet, incite, compel, or coerce" an act that is unlawful under the AHRA. +Alaska Stat. 18.80.260.
Alaska employers are liable for discrimination or harassment committed by an employee's supervisor. See VECO, Inc. v. Rosebrock, +970 P.2d 906 (Alaska 1999). However, the Alaska Supreme Court has not addressed whether the Faragher/Ellerth affirmative defense to sexual harassment cases recognized in Title VII cases is applicable under the Alaska Human Rights Act, i.e.:
- The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
- The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Alaska employers are liable for discrimination or harassment committed by a co-worker if:
- The employer (management) has actual or constructive knowledge of the discrimination or harassment; and
- The employer is negligent in taking action to stop it.
See VECO, Inc. v. Rosebrock, +970 P.2d 906 (Alaska 1999).
Alaska Commission for Human Rights and Judicial Enforcement
The AHRA is administered and enforced by the Alaska State Commission for Human Rights. However, an employee alleging employment discrimination can either file a complaint with the ASCHR or file suit directly in court. See Loomis Electronic Protection, Inc. v. Schaefer, +549 P.2d 1341 (Alaska 1976). If an employee files a complaint with ASCHR, ASCHR will investigate and determine whether there is substantial evidence of an unlawful discriminatory practice. If there is not substantial evidence of an unlawful discriminatory practice, the complaint will be dismissed. If there is a finding of substantial evidence of discrimination, ASCHR attempts to eliminate the discriminatory practice through "conference, conciliation, and persuasion." +Alaska Stat. 18.80.110. If conciliation fails, the Executive Director of the Commission may refer the complaint for a hearing before an Administrative Law Judge. +Alaska Stat. 18.80.120.
If ASCHR conducts a hearing and finds discrimination, it has the authority to order training, hiring or reinstatement of the employee, order changes to the personnel record, and order the hiring, reinstatement or upgrading of an employee with or without back pay, and the payment of front pay for a period of not more than one year. +Alaska Stat. 18.80.120; +Alaska Stat. 18.80.130. ASCHR does not have the authority to award compensatory and punitive damages for violation of the AHRA.
However, if an individual brings suit directly in court for violation of the AHRA, the court does have the authority to award emotional distress and punitive damages, in addition to the other equitable remedies such as reinstatement and back pay. See Loomis Electronic Protection, Inc. v. Schaefer, +549 P.2d 1341 (Alaska 1976).
An award of punitive damages for violation of the AHRA is limited to:
- $200,000 if the employer has less than 100 employees in Alaska;
- $300,000 if the employer has 100 or more but less than 200 employees in Alaska;
- $400,000 if the employer has 200 or more but less than 500 employees in Alaska; or
- $500,000 if the employer has 500 or more employees in Alaska.
Unlike Title VII, the AHRA does not provide for an award of attorney's fees to a successful plaintiff. However, Alaska Civil Rule 82 provides for an award of attorney's fees to a prevailing plaintiff that is calculated based on a percentage of the monetary award. The rule also permits a prevailing employer to recover a part of its attorney's fees (usually 20%) for defending against a discrimination claim.
Employer Recordkeeping Requirements
Employers are required to make, and keep for two years, records of the race, age, and sex of its applicants for employment and its employees. +6 Alaska Admin. Code 30.810. An employer who is being investigated under the AHRA is required to retain, until final disposition of the complaint, all records relevant to the determination of the complaint, including application forms, position descriptions, classification studies, payroll data, and personnel files. +6 Alaska Admin. Code 30.810(b).
Employer Posting Requirements
State agencies are required to post a notice describing the state's antidiscrimination policy including the state policy providing equal opportunity to those with disabilities.
All state employers and private employers with 15 or more employees must post a notice regarding the prohibition against sexual harassment under state and federal law.
It is unlawful for an employer or employment agency to print or circulate or cause to be printed or circulated a statement, advertisement, or publication, or to use a form of application for employment or to make an inquiry in connection with prospective employment, that expresses, directly or indirectly, a limitation, specification, or discrimination as to sex, physical or mental disability, marital status, changes in marital status, pregnancy, parenthood, age, race, creed, color, or national origin, or an intent to make the limitation, unless based upon a bona fide occupational qualification. +Alaska Stat. 18.80.220(a) (3).
The AHRA provides that it is unlawful for an "employer to discriminate in the payment of wages as between the sexes, or to employ a female in an occupation in this state at a salary or wage rate less than that paid to a male employee for work of comparable character or work in the same operation, business, type of work in the same locality." +Alaska Stat. 18.80.220(a)(5). There are no exceptions to this law. The Alaska Supreme Court has interpreted the phrase work of comparable character as requiring proof of substantially equal work. See Alaska State Comm'n for Human Rights v. State, Dept. of Admin., +796 P.2d 458 (Alaska 1990).
The AHRA further prohibits discrimination in compensation on the basis of a protected classification (race, religion, color, or national origin, or because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood).
An employer may provide greater health and retirement benefits to employees who have a spouse or dependent children than are provided to other employees. +Alaska Stat. 18.80.220(c)(1).
Alaska permits the medical use of marijuana by registered patients with a debilitating medical condition. A debilitating medical condition is defined as:
- Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome or treatment for any of these conditions; or
- Any chronic or debilitating disease or treatment for such diseases, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient's physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana:
- Severe pain;
- Severe nausea;
- Seizures, including those that are characteristic of epilepsy; or
- Persistent muscle spasms, including those that are characteristic of multiple sclerosis.
Alaska's law expressly does not require an employer to provide accommodation of any medical use of marijuana in the workplace, +Alaska Stat. § 17.37.040. Further, an Alaska employer should be mindful of the federal ADA and Drug-Free Workplace Act.
Individuals who are enrolled in the state's patient registry and who possess a valid identification card may legally possess up to one ounce of usable marijuana. The identification card must include the physician's recommendation and the diagnosis of the condition that requires such use.
An employer need not, however, accept medical marijuana usage as a legitimate excuse for an applicant's positive drug test. And, there is no law precluding employers from denying employment as a result.See Preemployment Screening and Testing: Alaska.
Nonetheless, employers adopting drug and alcohol testing policies should notify applicants of the policy in writing at the time of application and include clear information about the employer's position on medical marijuana in their policy. Alaska employers may want to consult local counsel on this issue.
In November 2014, Alaska voters passed a ballot measure to legalize the recreational possession and use of small amounts of marijuana. Under the measure, adults 21 and over may possess up to one ounce of marijuana and grow six marijuana plants at home. The Alaska law expressly states that nothing in the ballot initiative is intended to require an employer to permit or accommodate marijuana use in the workplace. As a result, an employer may still maintain a drug-free workplace policy.
Lactation/Breastfeeding Protections and Accommodations
Women who are breastfeeding are not protected by the AHRA. However, a woman may breastfeed in any location where she is authorized to be. Municipalities may not enact ordinances that prohibit or restrict a woman from breastfeeding a child in a public or private location where the woman and child are otherwise authorized to be. Lewd conduct, lewd touching, immoral conduct, indecent conduct, and similar terms do not include the act of a woman breastfeeding a child in a public or private location where the woman and child are otherwise authorized to be. +Alaska Stat. § 29.25.080; +Alaska Stat. § 01.10.060.
The Military Code of Alaska is similar to USERRA and it grants employees who are members of the organized militia (i.e., the Alaska National Guard, the Alaska Naval Militia and the Alaska State Defense Force) and members of the National Guard of another state certain leave and reinstatement rights.
See USERRA: Alaska.
The Military Code also contains discrimination provisions. No person, either alone or with another, may willfully:
- Deprive a member of the National Guard or Naval Militia of employment;
- Prevent the member from being self-employed or employed by another;
- Obstruct or annoy the member or the member's employer with respect to his or her trade, business or employment because of membership in the National Guard or Naval Militia; or
- In any way dissuade any person from enlisting in the National Guard or Naval Militia by threat or injury to the person with respect to the person's employment, trade or business if the person enlists.
A violation of this provision is punishable by a fine of not more than $100.
Title V of the Anchorage Municipal Code applies to employers with one or more employees. It is unlawful for an employer to refuse employment to a person, or to bar him or her from employment, or to discriminate against him or her in compensation, or in a term, condition or privilege of employment or to discharge, expel, reduce, suspend or demote him or her because of race, color, sex, sexual orientation, gender identity, religion, national origin, marital status, age, or physical or mental disability, unless the reason for the discrimination is a bona fide occupational qualification. +Anchorage, Alaska Code of Ordinances Sec. 5.20.040.
The Municipality of Anchorage provides a free downloadable version of a poster explaining the municipal ordinance, which is available in English and Spanish by clicking here.
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