Just that I hope the courts will provide more justice than the civil service commission."
According to an article in the Arkansas Law Review and Bar Association Journal, Inc., the Arkansas Legislature, after almost 30 years of avoiding issues that the rest of the country had already addressed, enacted its first modern civil rights act. The law covered discrimination based on race, religion, national origin, gender, and disability.
The Arkansas Civil Rights Act of 1993 states in part:
(a) The right of an otherwise qualified person to be free from discrimination because of race, religion, ancestry or national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
- The right to obtain and hold employment without discrimination;
- The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges or any place of public resort, accommodation, assemblage, or amusement;
- The right to engage in property transactions without discrimination;
- The right to engage in credit and other contractual transactions without discrimination; and
- The right to vote and participate fully in the political process.(b) Any person who is injured by an intentional act of discrimination in violation of subdivisions (a)(2)–(5) of this section shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover compensatory and punitive damages, and, in the discretion of the court, to recover the cost of litigation and reasonable attorneys’ fees. . . . The opportunity to obtain housing and other real estate without discrimination because of religion, race, color, national origin, sex, disability, or familial status, as prohibited by this chapter, is recognized and declared to be a civil right. . . .
During the 1995 legislative session, a new section covering housing discrimination was added to the law. Yet, five years after the statute was enacted, litigants have filed very few cases under the new law. However, it does not mean that it is always preferable to file under state law because the state act also leaves several significant areas uncovered.
The Arkansas Civil Rights Act of 1993 provides some civil rights protections, but the law is not substantially equivalent to federal civil rights laws, and procedures, remedies, and judicial review of actions are not equivalent to those under federal guidelines. Major areas of civil rights protections not covered include age discrimination in employment and housing. The act also lacks an enforcement mechanism.
According to officials of the U.S. Equal Employment Opportunity Commission (EEOC), Little Rock Area Office, the Arkansas Act does not conform to the age discrimination under EEOC’s jurisdiction because it does not prohibit age discrimination. The Arkansas Act that defines “disability” does not cover alcoholism. The act exempts religious entities from the employment aspects of the law, and the section of the Arkansas law that defines “employee” does not conform to EEOC’s standards because it excludes individuals employed by their parents, spouses, or children, and individuals employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
The U.S. Department of Housing and Urban Development (HUD) administers federal housing programs. HUD’s Office of Fair Housing and Equal Opportunity administers fair housing laws and regulations prohibiting discrimination in public and private housing and in HUD-assisted housing and community development programs on the basis of race, color, religion, sex, national origin, handicap, or familial status. The governing law is the Civil Rights Act of 1968, as amended by the Fair Housing Amendments of 1988. The Arkansas Act also does not meet the requirements set forth under the laws and regulations enforced by HUD prohibiting age discrimination in housing, and it fails to have an enforcement mechanism.
According to Judge Wendell L. Griffen of the Arkansas Court of Appeals, the Arkansas Act is not enforced by any state agency with civil rights responsibilities.
Claude Rogers said effective civil rights legislation should at a minimum do the following:
- provide rights and remedies substantially equivalent to federal guidelines such as prohibiting discrimination based on race or color, national origin, religion, sex, disability, age, marital status, and familial status;
- prohibit discrimination in the areas of employment, housing, and public accommodations;
- provide enforcement powers and judicial review of the agency’s actions;
- provide outreach and education services to the general public;
- provide specific authority to localities to investigate and enforce civil rights protection locally; and allow state agencies to accept grants and enter into cooperative agreements with other state, local, and federal agencies.
Mr. Rogers said some states have been progressive in their lawmaking by including discriminatory practices based on income, height and weight, and sexual orientation.
In its review of the Arkansas Civil Rights Act, concerns were expressed to the Advisory Committee that the act is not substantially equivalent to federal laws. The Committee also heard of other areas of concern that limited aggrieved citizens’ ability to pursue their rights, such as costs for legal counsel, which adversely affect low-income persons, and the lack of available attorneys who will accept civil rights cases.
Summary of Views Regarding an Arkansas Civil Rights Enforcement Agency
Most persons interviewed and participants who spoke or submitted written information for the fact-finding meeting either supported state civil rights legislation and a state enforcement agency or opposed them. There was not much gray area on this point. Some agreed, however, that based on the current political climate, attempts to increase civil rights protections in Arkansas most likely would be unsuccessful. This is evident by the defeat of comprehensive state hate crime laws proposed in 1999 by the Legislature and the defeat of other efforts to safeguard the human rights of citizens. For example, state employers came together and effectively weakened workers’ compensation laws; the state failed to establish landlord and tenant rights laws; an administrative law judge was removed because her rulings appeared to be favorable toward plaintiffs’ interests; a law creating the Arkansas Women’s Commission was repealed, which would have helped improve the education and economic status of women; a bill failed to pass the Legislature that would have repealed part of a law that allows the state to check for citizenship before issuing a driver’s license, thereby potentially subjecting immigrants with noticeable accents or Spanish-sounding names to discriminatory treatment; and the city of Little Rock failed to get state legislation passed allowing local municipalities the authority to adopt their own fair housing ordinances.
Although Governor Mike Huckabee has publicly renounced the practice of discrimination and said his administration is inclusive, a number of persons and representatives of organizations such as ACORN, the state NAACP, and Catholic Immigration Services believe the current administration has been generally inactive and dispassionate on civil rights issues. They cited the controversy surrounding the upheaval at the state’s Youth Services Department that raised allegations of racial discrimination in the firing of black administrators, the confrontation between ACORN and the governor at the Arkansas Civil Rights Conference in April 1998, and the lack of accessible state properties for mobility-impaired persons.
In the minds of some community representatives, the administration has not gone beyond the acknowledgment that civil rights problems exist, and it has failed to implement the changes needed. The questions then become, What has the administration done to make its vision of civil rights a reality? What are the different views and pros and cons of establishing substantially equivalent civil rights legislation and a state human rights agency?
Joe Franklin, who spoke on behalf of the governor, stated:
Last September Governor Mike Huckabee, along with President Clinton and Little Rock Mayor Jim Daly, participated in the 40th anniversary of the integration of Little Rock Central High School. That day the three of them symbolically held open the doors for nine African American students who had been shut out of that school 40 years earlier. Governor Huckabee said in his speech that day: “Essentially, it is not just a skin problem; it is a sin problem, because we in Arkansas have wandered around in ambiguity with all kinds of explanations and justifications. I think today we come to say once and for all that what happened 40 years ago was simply wrong. It was evil, and we renounce it.”
Phillip Kaplan, Kaplan, Brewer & Maxey
Phillip Kaplan, an attorney with the law firm Kaplan, Brewer & Maxey, P.A., has served as legal counsel for plaintiffs in civil rights cases. He strongly opposes expanding current legislation to enforce the state’s civil rights laws. According to Mr. Kaplan, in those states with deferral agencies to the EEOC, there has always been a coalition of political forces that enabled such legislation to pass. He said this environment does not exist in Arkansas. Usually there is a large labor constituency or women’s groups that have been able to mobilize and garner the legislative impetus needed to pass civil rights legislation. He believes there is enough legislation on the books to adequately address civil and human rights issues. He contended that more legislation will only arouse hostility. Moreover, with theexception of employment discrimination, he said, there are very few housing or public accommodations discrimination complaints filed in Arkansas. He told the Advisory Committee:
There are very few lawsuits filed. Most of these things are either mediated or handled at an administrative level at HUD. . . . The same is true with public accommodations. For example, we know that Sears is not treating somebody who is a customer badly on account of race, sexual preference, or gender. That kind of thing with major department stores just doesn’t happen.
Mr. Kaplan said that there are other legal and technical factors involved in proving discrimination cases and that plaintiffs would be best served by using federal civil rights laws rather than state laws. He noted that a plaintiff’s burden of proof in employment cases is rigorous. Therefore, attorneys are exceedingly selective about the employment civil rights cases they will handle; and some do not take them at all. Relatively few cases are decided for the plaintiff at trial. Moreover, Mr. Kaplan observed that bringing a claim of discrimination at the state level provides no legal advantage or relevant precedent because state judges look to federal law for guidance on civil rights cases. Instead of new legislation, Mr. Kaplan said:
My feeling is, quite frankly, there’s enough law now. The Arkansas civil rights statute, while it is not self-effectuating, is a very broad and comprehensive statute. And if only it were universally loved and adopted, it would make a difference, but I think that there are many places where it could be, I suppose, more effectively enforced and where education might make a difference, where having some discussion in the nature of dialogue on race, that the President has tried to develop, might have some considerable impact. I just don’t think that additional legislation is going to have that much impact, because the laws as they exist now are sufficient, if enforced, or if adopted in one’s heart.
Litigating these things isn’t ultimately going to be whatever is going to bring about the change. You can’t have enough lawsuits to change what is in people’s hearts. You just have to change their minds and hearts in order to change the way they react toward people that are different from them, and we’ve come a long way.
James W. Moore, Friday, Eldridge & Clark
James W. Moore, an attorney in Little Rock, exclusively represents employers in their defense against employment discrimination charges. He serves on the board of directors of the Arkansas State Chamber of Commerce and the United States Chamber of Commerce. He opposes legislation for a state civil rights enforcement agency. A state agency, he said, would be just another unnecessary layer of bureaucracy added to existing federal and state enforcement procedures that are available to persons alleging discrimination. Mr. Moore said if legal costs are a concern, plaintiffs may also file an employment discrimination complaint in federal court for a state cause of action based on the Arkansas Act without delay. Mr. Moore summed up the Arkansas Chamber of Commerce’s position:
In our view we do not feel that there is such a need. The Arkansas business community, which is comprised mostly of employers of less than 100 employees, believes that we do not need another civil rights enforcement authority to protect the employees from workplace discrimination.
Now, let me point out that such a state agency would be in addition to the existing employee rights law enforcement authority of the EEOC, which we all know, the OFCCP, the NLRB, OSHA, HUD, the U.S. Department of Justice, the U.S. Department of Labor, the Arkansas Civil Rights Act of 1993, the Arkansas Department of Labor, and a very skilled and sizable aggressive Civil Rights Bar, which represents plaintiffs here in Arkansas, which is a relatively small state from a population standpoint. . . .
More agencies to complain to simply means more litigation, and more litigation creates the need for more attorneys and more litigation expense. While lawyers have prospered over the last 30 years with the expansion of civil rights legislation, this is hardly a rationale for another agency in an area of law which is already saturated with legislation and regulatory agencies.
Mr. Moore believes outreach and educational programs for employers are the best approaches to preventing and reducing discrimination in the workplace.