BEFORE THE HUMAN RIGHTS COMMISSION
AND THE DEPARTMENT OF LABOR AND INDUSTRY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 24.8.201, 24.8.203, 24.8.205, 24.8.214, 24.9.111, 24.9.119, 24.9.121, 24.9.123, 24.9.125, 24.9.603, and 24.9.606 and the adoption of New Rules I and II pertaining to Human Rights matters
NOTICE OF AMENDMENT AND ADOPTION
TO: All Concerned Persons
1. On September 2, 2016, the Department of Labor and Industry (department) and the Human Rights Commission (commission) published MAR Notice No. 24-9-317 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 1504 of the 2016 Montana Administrative Register, Issue Number 17.
2. The department has amended the following rules as proposed: ARM 24.8.201, 24.8.203, 24.8.205, and 24.8.214.
3. The commission has amended the following rules as proposed: ARM 24.9.111, 24.9.119, 24.9.121, 24.9.123, 24.9.124, 24.9.603, and 24.9.606. The commission has adopted New Rule I (24.9.613) and New Rule II (24.9.112) as proposed.
4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: The department received a comment regarding ARM 24.8.205, opposing the departmental practice of providing consultation and assistance with potential complainants in the drafting of human rights complaints. The comment argued that such assistance raises questions and doubts about impartiality in the investigative process.
RESPONSE #1: First, the department notes that the proposed amendments to ARM 24.8.205 were not intended to be substantive in nature, but instead to provide clarification to the public as to departmental practice. As such, while the rule is currently being amended, the rule reflects many years of past practice. Second, the department notes that assisting in the complaint drafting process provides an important service to the public—both for complainants and respondents. By assisting in the drafting process, an early determination of departmental jurisdiction can be made, and clarity and concision in the complaint can more likely be achieved, allowing both response and investigation to proceed more smoothly.
COMMENT #2: The department received a comment regarding ARM 24.8.205, arguing that, should the department be unwilling to strike the provisions within that rule permitting assistance in the complaint filing process, it should create a new rule requiring that different individuals assist in the drafting of the complaint than investigate the complaint.
RESPONSE #2: The department does not agree with this proposal. The investigatory process is an informal one designed to make a determination as to whether discrimination is likely to have occurred. The investigation considers all pertinent comments from both the complainant and the respondent. As such, no conflict is created if the same individual assists in drafting a complaint and then proceeds to investigate that complaint.
5. The commission has thoroughly considered the comments and testimony received. A summary of the comments received and the commission’s responses are as follows:
COMMENT #1: The commission received a comment regarding ARM 24.9.603, arguing that the disputable presumption of retaliation stated in (3) of that rule is outside the scope of the implemented statutes and should therefore be repealed.
RESPONSE #1: The commission thanks the commenter for expressing views on the administrative rule. However, ARM 24.9.603(3) was not proposed for amendment or other modification. As such, the comment and its proposal to repeal the subsection is outside the scope of the current rulemaking.
/s/ Mark Cadwallader /s/ Dennis Taylor
Mark Cadwallader Dennis Taylor
Alternate Rule Reviewer Chair
Human Rights Commission
/s/ Pam Bucy
Department of Labor & Industry
Certified to the Secretary of State December 27, 2016.