Civil Rights Enforcement Efforts in North Dakota

Chapter 5

Private/Community Organizations and Citizen
Perspectives on Discrimination

American Civil Liberties Union

Keith Elston, executive director, American Civil Liberties Union (ACLU), North Dakota chapter, explained to the North Dakota Advisory Committee that since a permanent office was established in North Dakota in the summer of 1995, numerous complaints have been received.[1] They include discrimination in employment, housing, and public accommodations.[2] Mr. Elston said that during the first 6 months of the ACLU, North Dakota office operation, nearly one-third of the requests for assistance involved employment discrimination complaints against employers on the basis of gender, race, religion, age, disability, and sexual orientation.[3]

He said that the ACLU does not have the resources to respond to those types of complaints, and sadly, the organization was forced to decline every request for help.[4] Many cases were referred to the North Dakota Department of Labor or the North Dakota Fair Housing Council.[5] On occasion, cases have been referred to the U.S. Attorney’s Office when it was thought there might be a violation of Federal antidiscrimination provisions.[6] The ACLU does not get much feedback once individuals have been referred, and so far, Mr. Elston said he could not recall a situation where the complainant called back to say if he or she had been adequately served by another agency.[7]

The American Civil Liberties Union, North Dakota chapter, believes that North Dakotans remain especially vulnerable to discriminatory practices.[8] In the absence of a human rights commission, employers, landlords, lending institutions, Realtors, service providers, and vendors continue to commit discriminatory acts that go undetected because the odds of them having to defend themselves in court against a charge of discrimination are low.[9] “The absence of an effective enforcement agency creates a sense of hopelessness for victims of discrimination,” he said.[10]

Mr. Elston told the Committee:

There are few attorneys with experience in civil rights laws in North Dakota, and fewer [attorneys] still who are willing or able to represent victims of discrimination due to unfriendly courts, the high cost of time-consuming investigations, or conflicts of interest. Victims of discrimination are also reluctant to approach attorneys because they are unaware of remedies provided by State law. In addition, citizens fear their financial condition will worsen with the addition of potentially huge attorneys’ fees.[11]

Mr. Elston told the North Dakota Advisory Committee, “With conservative North Dakota courts, it is almost certain that in many cases, the victims of discrimination will not prevail at the trial court level.”[12] He cited the following example of discrimination: 

A man over the age of 40 who was fired, hired an attorney to take his former employer to court. The outcome: the case was lost even though age discrimination is clearly prohibited by North Dakota’s Human Rights Act. Instead of appealing the ruling, he [the complainant] just gave up, reasoning that he had already spent $700 of his savings to lose that round, why should he risk more of his savings on another round?[13]

This man’s feeling of hopelessness prevented him from seeing his case through to the end.[14] Mr. Elston said he wondered how many other victims have just given up, accepted that there is nothing to be done about the discrimination they have experienced, and allowed people who have violated their rights to go unpunished.[15]

Dakota Center for Independent Living

Eileen Olson, who is disabled and a board member of the Dakota Center for Independent Living, testified that she had personally experienced discrimination in the past 8 years. Most landlords, she said, are unwilling to widen doors, put in ramps, or install adaptable faucet handles or doorknobs. She said after moving out of an apartment, the landlord told her that he would no longer rent to people in wheelchairs.[16] She sent the landlord information on discrimination published by the Fair Housing Council, and apparently the landlord realized he was breaking the law and subsequently rented to another person who used a wheelchair.[17] Another situation involving discrimination concerned a Bismarck business that required patrons to eat at the bar; however, the business owner refused to install a wheelchair ramp and disabled patrons quit patronizing that business. In another incident, Ms. Olson said she was transported to the Bismarck airport by ambulance, in her attempt to fly to Rochester, Minnesota, for emergency surgery. However, she was refused service by the airline, because the airline’s policy was that she must be able to move from her wheelchair into the airplane seat without assistance from airline personnel.[18] She was forced to take an ambulance from Bismarck to Rochester, Minnesota.

In a successful class action suit on a separate issue against the Bismarck Human Services Office and the State of North Dakota,[19] Ms. Olson said she prevailed because she had the resources to hire an attorney, but added that people usually do not know where to turn, and financing is also a major obstacle.

Green Thumb, Inc.

Connie McBride, State project director, Green Thumb, Inc.,[20] discussed her work as an advocate for older workers. The agency administered 249 positions in community service in 34 North Dakota counties, and during 1995, over 600 people were served. Green Thumb provides older Americans with training and retraining to assist them in obtaining meaningful employment.[21] Green Thumb has also assisted many people with regard to age discrimination in the workplace.[22] And she said, “Contrary to commonly held misconceptions, older workers tend to be supremely good investments for business.”[23] Despite  efforts to educate and provide access, Ms. McBride said:  

It’s really clear to me that in North Dakota we have a very long way to go. Nearly every day my work involves a story of someone that’s trying to make sense of the mixed messages that are sent both in policy and in practice. The cosmetic message is “live longer, stay well, remain independent as long as possible, we value experience, maturity, longevity,” but the overriding message in practice and policy, particularly in employment issues, seems to be don’t get sick and don’t get old.[24]

To illustrate the effect of age on employment-related decisions, she referred to a recent study that showed that age discrimination in hiring across the United States occurs more than 25 percent of the time.[25] Another study conducted by the Commonwealth Fund found that almost 2 million Americans, ages 50 to 64, wish they were back in the work force, but are discouraged by the negative attitudes of potential employers toward hiring older people.[26] Both studies substantiate that older Americans too often face barriers to employment totally unrelated to their ability to perform the job, she said.[27]

It’s no surprise, then, that during the past decade, the number of age discrimination claims filed by the U.S. Equal Employment Opportunity Commission has risen, in part due to the surge in downsizing in many businesses, and also because older workers have increased awareness of their rights under Federal and State discrimination statutes.[28]

Ms. McBride continued that Green Thumb’s experience has been that negative attitudes about aging and stereotypes of older people are still too prevalent.[29] Because of this, thousands of North Dakotans are being deprived of opportunities to remain productive and independent, and North Dakota, in turn, is deprived of valuable resources.[30] Very few negative attitudes about aging are based on fact, including the prevalent stereotypes that people learn more slowly as they age, their minds degenerate over time, and they cannot be trained in new technologies or learn new complex skills.[31] Additional excuses include older workers cannot work as efficiently or effectively as young people, they miss work because they get sick more often, they are inflexible and less adaptable to change, they lose memory, and they have less stamina.[32]

Although there are good employers who are receptive to older workers, Green Thumb continues to encounter a number of North Dakota employers who cling to outdated, negative assumptions. They rationalize that it is too costly to invest in older workers, she said.[33]

Discriminatory practices with regard to age unfortunately represent the norm, not the exception,[34] and the consequence of discrimination, particularly for women in the State, is poverty. One client was told by a State agency that if she really wanted to get a job, she should color her hair to cover the gray and use more makeup.[35] Ms. McBride said that applicants for State employment experience great discrimination. Although the State is subject to the various employment discrimination laws, very inappropriate and illegal questions are asked of job applicants. Some of these are blatant forms of discrimination, and others are more insidious.[36] 

State and Federal laws provide a framework for protecting people; however, many people 40 and over do not know their rights and recourse for coping with discrimination.[37] Unfortunately, enforcement of the Age Discrimination in Employment Act (ADEA) has not been a significant deterrent.[38] Backlogs of pending charges and the length of time for the U.S. Equal Employment Opportunity Commission (EEOC) to take action discourages potential claimants from seeking relief. In addition, because of the expense involved in handling an age discrimination case and the difficulty in establishing proof, few attorneys will represent age discrimination plaintiffs on a contingency basis, and few individuals have the financial resources to hire counsel.[39] Further, people are afraid of retaliation or rejection by future employers, which is a major concern in North Dakota. Ms. McBride said Green Thumb refers individuals to the North Dakota Department of Labor; however, many people who live in rural communities are very reluctant to get help.[40] They are given the toll-free number to the EEOC in Denver and are told to tell an investigator their concerns, but most of them do not pursue their complaint because they are very fearful of employer retaliation. These people have to go on living in their smaller community, so they do not follow up on their complaint, many times, because they do not have the resources to continue.[41]

Because North Dakota is less populated, the networks are stronger, word gets out rapidly, and it does not take long before somebody who might have a substantive complaint receives, coincidentally, a cold shoulder from the employment community.[42] In most cases, discriminatory treatment has become more subtle, and as one court put it, “Denying employment to an older job applicant because he or she has too much experience, training, or education is simply to employ a euphemism that masks the real reason for refusal, namely, in the eyes of the employer, the applicant is too old.”[43] A new view of aging is needed, a perception of aging that assumes older Americans represent opportunity rather than a crisis, a solution rather than a problem, an asset rather than a burden, and a resource rather than a drain on resources.[44]

Legal Assistance of North Dakota

Linda Catalano, executive director of Legal Assistance of North Dakota, explained that the agency is a private, nonprofit corporation primarily funded with Federal funds through the National Legal Services Corporation.[45] The agency has extensive restrictions regarding their service and very few loopholes to represent people whose civil rights are being violated.[46] Federal and State laws have prohibited the agency from taking additional cases that generate attorneys’ fees or class action cases; and as a result, it referred out more cases than ever before.[47] Legal Assistance of North Dakota is focusing its services on those people who fall through the safety net, who are the most disadvantaged, low-income people, particularly those on public assistance.[48]

For a number of years, Legal Assistance of North Dakota has not had the resources to take civil rights cases and has not done so.[49] The agency employs two staff attorneys to serve the State, which translates into very limited resources.[50] In 1993 Legal Assistance of North Dakota received at least 75 contacts from people who needed assistance with civil rights matters, and those individuals had to be turned away.[51] In 1994 the agency had 61 documented contacts of people from across the State who had to be turned away once again.[52] In 1995 that number doubled to 122 contacts.[53] These numbers do not include people who contacted Legal Assistance of North Dakota for employment discrimination matters.[54] In the Fargo office, it was estimated that the agency received one call on employment discrimination a week; unfortunately, when someone is turned away concerning an employment issue, the agency does not track the specific bases related to that complaint.[55]

The agency has offices across the State, however, the majority of its complaints regarding civil rights matters have come from the Fargo office, with Bismarck ranking second.[56] Ms. Catalano said that usually when people call Legal Assistance of North Dakota, it is one of the last contacts citizens make because they have already tried other agencies and did not get help. Her concern was that although referrals are made, some people just say, “If Legal Aid doesn’t care, nobody cares.”[57] Ms. Catalano said that the agency does not have a civil rights arm to pursue a remedy and compensation for possible damages.[58]

In the Devils Lake area, the number of contacts is very limited because of the small community. Legal Assistance of North Dakota serves the Turtle Mountain Indian Reservation and has a cooperative agreement with the University of North Dakota Law School in Grand Forks to serve the Fort Totten Indian Reservation.[59] A number of complaints have been received from the Turtle Mountain Indian Reservation with regard to employment discrimination and public housing affecting Native Americans.[60] Ms. Catalano also said that housing discrimination occurs against Native Americans occupying off-reservation rental properties because “owners fear that their property will be destroyed or severely damaged.”[61] Ms. Catalano also told of receiving calls from Hispanic residents.[62]

The office has also received occasional calls from Native Americans who are incarcerated and have been denied medical treatment and/or medication in a timely manner.[63] The Devils Lake office has also received calls from non-Native Americans housed at the State penitentiary concerning the same matter. Most of the residents in the Devils Lake area are referred to the North Dakota State Bar Association, the North Dakota Department of Labor, or the U.S. Equal Employment Opportunity Commission.[64] However, the agency senses that these people very rarely make the followup contacts that are necessary.[65] She said that many of the cases they see involve low-income people who cannot afford private attorneys.[66] She said the Bismarck office received the largest number of housing discrimination complaints, presumably because that office has been very active, particularly concerning Native American families with children. In Dickinson, families with mentally ill members have had personal medical information inappropriately shared with other agencies or the public, have felt personal pressure, and have experienced discrimination from housing providers.[67]

In Fargo and Bismarck, an occasional call is received concerning age discrimination in employment,[68] and those persons are assisted through the agency’s Elderly Law Project.[69] Ms. Catalano said she continues to have personal contact with many seniors who are denied employment because of their age, but they rarely come into the office to complain.[70] She said there are still a number of women and the elderly who live in rural parts of the State who do not think they are suffering discrimination and think that their treatment is normal.[71] Obtaining assistance is much tougher for persons living in rural areas because of their limited knowledge of their rights, a limited number of attorneys willing to take discrimination complaints, and the amount of effort it takes to contact an agency that is far away.

The agency tries to inform people of their rights and provide assistance, but resources are limited and it is difficult to get information out to the public.[72] Legal Assistance of North Dakota provides service provider information, but not on civil rights issues; and unfortunately, people do not always realize when they are being discriminated against.[73]

Ms. Catalano confirmed that her agency’s funding has been cut by one-third and is projected to be cut another one-half next year.[74] Budget cutbacks have restricted extensively what federally funded legal aid programs can do in the realm of civil legal service for people, no matter what their needs are.[75]

Lutheran Social Services

Barry Nelson, director of Community Outreach Programs of Lutheran Social Services in North Dakota, said there is a great deal of generosity on the part of the State in terms of responding to individuals who are coming into the community, but there is a lot of evidence of disparate treatment.[76] Refugees are individuals who have fled their country of origin out of fear of persecution, and a small percentage of those individuals are found to meet the U.S. entrance criteria and are admitted legally into the country. Because people do enter the United States under legal and illegal circumstances, oftentimes, individuals arriving in the country with U.S. approval are assumed to be here illegally. Refugees arrive with little more than a piece of luggage and skills that may or may not be transferable to their new country. They are assisted by volunteers of Lutheran Social Services and other agencies for the initial few months. Approximately 400 refugees each year are relocated to seven major cities in North Dakota.[77] They usually have little information about their new country and much less information about their rights, which places them in a particularly vulnerable position. They also downplay issues and wish not to talk about things that might be disturbing them.[78]

Mr. Nelson said he believes that there is discrimination in North Dakota for several reasons and acknowledged ignorance on the part of his agency as far as its role of being an advocate. He asked the question of what could be done when complaints are received, and added, “Already I think we have minimized their complaints . . . because we didn’t know what to do with them.”[79] His comments to the Committee were in three general areas: housing, employment, and access to services.

Housing: Lutheran Social Services’ experience with public housing has generally been very positive. A majority of landlords and housing managers appear to be fair and provide equal access to renters. Some exceptions have been: 

Other forms of discrimination are very difficult to identify such as tenants being charged large amounts of money for damage charges upon moving out, and non-English speaking tenants signing a document, thinking it is their notice to vacate and soon finding out they had signed a lease for another 6 to 12 months.[81] Mr. Nelson said he was concerned with the practice of landlords expecting tenants, before renting a property, to have a credit rating, rental history, and the standard requirement that tenants must earn three times the amount of rent charged.[82] Obviously, newly arrived refugees do not have a U.S. credit rating, and they may come from a country where it is difficult to pass any of these background checks. Additionally, due to the lack of established credit, refugees are vulnerable to being taken advantage of by unscrupulous businesses offering high-risk credit.[83]

Employment: Refugee Employment Program staff of Lutheran Social Services work with more than 150 employers throughout the State who readily hire refugees. Again, obvious issues arise regarding the refugees’ English-speaking abilities and cultural differences in viewing the world of work, although the majority of employers have dealt with those issues creatively and sensitively.[84] However, there have been occasions where refugee employees have been denied raises, while increases in pay were given to other employees performing the same job duties. Supervisors have resisted working with refugees, and they are frequently passed over for promotions. There have been questionable firings and individuals forced to quit.[85] Questions as to how worker’s compensation is handled, and the fact that North Dakota is a right-to-work State, make it more difficult to determine an employee’s rights.

Access to Services: Language barriers limit refugees’ opportunity to receive services, although most agencies and organizations have made great strides in accommodations, particularly when they are aware of Federal law. However, there still remain agencies that are resistant to change and expect individuals to bring in their own interpreter, or the resettlement agency to be responsible.[86] In his statement before the North Dakota Advisory Committee, Mr. Nelson alleged the following questionable practices:

Mr. Nelson said his belief is when a controversial issue such as the growing refugee population exists, it may create a climate of hostility to those clients.[88]

During the 1997 legislative session, a law was enacted permitting driver’s license exams to be offered in the language of the applicant. This law became operational in August 1997; however, the service was not publicized. In the Fargo motor vehicle office, the service was originally offered during the agency’s general hours of operation but is now offered only during restricted times. Non-English-speaking persons are not informed of those hours when they call in for appointments and subsequently come in at the wrong time. Finally, Mr. Nelson said, minority refugees are also closely watched in retail stores, and refugee youth have been accused of involvement in fights in their respective neighborhoods.[89]

North Dakota Fair Housing Council

The North Dakota Fair Housing Council accepts housing discrimination complaints. Prior to this agency becoming operational, a person who alleged discrimination in housing had to file a complaint with the U.S. Department of Housing and Urban Development (HUD) in Denver or take action in district court.[90]

The North Dakota Fair Housing Council does not have enforcement authority but only assists individuals with completing complaint forms for submission to HUD. The North Dakota Fair Housing Council also acts as an advocate for its clients; but the process is slow, and out of the complaints sent to HUD, only one case has received remedy.[91]

Lynda Johnson, former director of the North Dakota Fair Housing Council, explained to the North Dakota Advisory Committee that the agency is a private, nonprofit fair housing organization founded in 1995, with offices in Bismarck and Fargo.[92] The council’s main goal is to provide support, encouragement, and assistance to all North Dakota citizens seeking equal access to housing in the State.[93] The North Dakota Fair Housing Council believes that equal access to housing is a basic right of all Americans.[94] The dream to live where one desires can be shattered by practices where housing providers deny available housing to persons within the protected classes.[95] Ms. Johnson said that when discrimination occurs, it tears at the fabric of the community, encourages an environment where disputes escalate, encourages racism and bigotry, and results in a loss of cultural diversity.[96]

The North Dakota Fair Housing Council monitors the level of housing discrimination within communities through testing that is a simulated housing transaction designed to gather information on the actual practices in the marketplace.[97] Ms. Johnson further explained that testing compares information given by a landlord with two potential applicants who are exactly alike in every respect, except for one aspect such as ethnicity, national origin, gender, or familial status (families with children).[98] As an example, during 1995, 40 random tests were conducted.[99] The purpose of the tests was to gather information with regard to the nature and extent of housing discrimination in North Dakota, and to learn more about the housing market in Bismarck and Fargo.[100]

The random tests were conducted exclusively in the rental market over a period of several months, testing primarily for national origin and familial status discrimination.[101] Testing provides independent evidence to support a civil rights claim against a housing provider.[102] Evidence derived from testing is the best way to confirm whether a housing provider may be breaking the fair housing law, and Federal courts have consistently supported fair housing testing.[103]

The North Dakota Fair Housing Council, through testing it conducted in 1995,[104] found that in the Bismarck-Mandan area, Native Americans experienced housing discrimination 47 percent of the time in 15 of the random rental tests.[105] Overall, discrimination was detected 56 percent of the time in 18 random rental tests, and, in general, one out of three families experienced discrimination.[106]

Fargo testing resulted in five out of six cases where Native Americans experienced housing discrimination, for an overall discriminatory rate of 83 percent.[107] In 10 tests where Hispanics were the protected class, housing discrimination was detected in eight tests, for an overall rate of 80 percent. In two tests, where race was a protected class, a 50 percent housing discrimination rate was found. Overall, Fargo testing garnered an 83 percent housing discrimination rate.[108]

The results of testing also pointed to the fact that Hispanics were steered to particular areas, and families with children were asked to post higher deposits or were denied the opportunity to rent at all.[109] Seventy-nine percent of the time the housing discrimination affected the protected class financially, such as by requiring higher rent deposits and higher rent.[110]

The Bismarck and Fargo offices of the North Dakota Fair Housing Council receive anywhere from 150 to 200 phone calls each month at each office.[111] Many of those calls are tenant-landlord disputes that constitute possible evidence of discrimination.[112] Between August 17, 1995, and August 30, 1995, the North Dakota Fair Housing Council received 48 allegations of housing discrimination in the following categories:[113] age (2), disability (16), familial status (15), gender (2), marital status (2), and national origin (11).

The North Dakota Fair Housing Council, as part of its education component, held two seminars, one in Bismarck and one in Fargo. Over 56 attorneys attended both sessions, and 3 attorneys identified themselves as interested in taking fair housing cases.

North Dakota Federation of Families for Children’s Mental Health

Elizabeth Sweet, former executive director, North Dakota Federation of Families for Children’s Mental Health, reiterated comments made by other presenters to the North Dakota Advisory Committee that families who have children with mental and/or physical disabilities are discriminated against through unfair eligibility criteria and guidelines. Most families do not have the financial resources to pay for services such as housing their child in an out-of-home treatment facility, which costs approximately $70,000 per year.[114] Ms. Sweet said that parents have also been “put in a position of having to walk into a court and lie” about their child’s welfare in order for that child to receive those services.[115] Additionally, most out-of-home placements are made to another State, and families do not have access to their children.[116] Finally, Ms. Sweet said that with the downsizing and reorganizing of advocacy organizations, families are left with fewer and fewer options for help for their disabled children.[117]

North Dakota Mental Health Association

Myrt Armstrong, former executive director, North Dakota Mental Health Association, said the mentally ill and seriously emotionally disturbed children and families suffer discrimination through separation and the denial of education, insurance, and employment.[118] Native Americans are the most obvious of all to suffer discrimination. To compound matters, some Native Americans do not have housing or a mailing address, but in many cases “they are expected to do what none of us could possibly do without getting some help or assistance.”[119] She added that most people who suffer from mental illness normally do not have the energy or the ability to deal with the complicated system of filing a complaint. She said that she has had numerous complaints and makes referrals when possible.[120]

North Dakota Public Employees Association

Gerard Friesz, former executive director of the North Dakota Public Employees Association, said the association is a labor organization that represents State, county, and municipal employees,[121] and is well aware that discrimination does exist in North Dakota. During his 9 years of employment with the Public Employees Association, he has received numerous phone calls, not only from public workers, but from private sector employees who believe they have been discriminated against.[122] Examples of employment discrimination include promotion denial based on age, inequitable pay based on race, and sexual harassment.[123] Mr. Friesz said that until North Dakota has a mechanism that is affordable, accessible, and expeditious in resolving complaints, “We may never know the full extent to which discrimination exists in North Dakota.”[124]

Mr. Friesz said that the State employees he represents have the option of filing an employment discrimination complaint with the North Dakota Department of Labor or they can file a grievance with the State’s Centralized Personnel System, which is becoming far less accessible, much more costly, and is not expeditious.[125] He explained that it is not uncommon for an employee who has a charge, whether discriminatory or otherwise employment-related, to spend a year or more going through a process that has become too legalistic. If a person cannot afford representation, he or she is in fact driven away from the process or goes through the hearing process unrepresented.[126] In contrast, the agency or department is represented immediately by an assistant attorney general from the Office of the Attorney General, he said.[127] The process at the State level is turning people away from having their grievances heard before a tribunal or an independent and unbiased arbitrator, and he suggested that things are far worse for people in the private sector.[128] Mr. Friesz said that time is on the discriminator’s side, and it is important that a system be put in place whereby employees can have their grievances heard.[129]

Protection and Advocacy Project

Dave Boeck, supervising attorney for the Protection and Advocacy Project, explained there is an incredibly low level of awareness of what discriminatory practices are, which has a negative effect on people’s ability to participate fully in our society.[130] He gave as an example the fact that several hotels in Bismarck lack wheelchair lifts on their shuttle vans and have bathrooms that are inaccessible to people with disabilities. He questioned where individuals with disabilities stay and how they get to their destination when they come to Bismarck.[131] Because there are serious civil rights issues that affect many people, extensive education and sensitivity to the Americans with Disabilities Act and other legislation has to be heightened.[132] He said it is very difficult to find a plaintiffs’ attorney who specializes in civil rights issues and who could legitimately claim much experience or expertise in the area.[133]

Citizen Perspectives on Discrimination

Cheryl Red Eagle, a columnist for the Bismarck Tribune, stated at the factfinding meeting that it is frustrating not to be able to do anything about discrimination or provide those who contact her some recourse.[134] She said people are angry, frustrated, and have a sense of hopelessness. Ms. Red Eagle said, because she is really “the only public voice for Native American people in this area [North Dakota]” they expect her to write about their discrimination cases or take some action on their behalf.[135] Ms. Red Eagle said, “I feel that my hands are tied as far as my ability to refer Native American people to agencies where they can get assistance.”[136]

She shared some examples of mistreatment of Native Americans such as employers who request employment referrals through the State Job Service and attach instructions that say “Do not send Native Americans.”[137] She talked about receiving anonymous Neo-Nazi material and mail on several occasions, and said she could not help thinking that these people are living in this area, and they are employers, landowners, renters, shop clerks, and business owners embracing such negative attitudes toward Indian people.[138]

Ora Robinson, a member of the Martin Luther King, Jr. Holiday Commission, and former marketing director of the Bismarck Civic Center, spoke of the insensitivity and institutionalized racism and sexism she experienced in her employment. She told the Committee she was called and referred to as a “nigger.” In 1991 she filed a grievance and went through the proper chain of command, which included her immediate supervisor, personnel director, city commissioners, North Dakota legislators, and attorneys; and she told the North Dakota Advisory Committee that after 5 years, there was still no change and no recourse.[139] Ms. Robinson did not seek the services of the North Dakota Department of Labor because she felt it was ineffective. She considered hiring an attorney, but the cost was prohibitive, and she believed that most North Dakota attorneys were inexperienced in civil rights law.[140]

During the open session of the factfinding meeting, North Dakota citizens testified and shared their personal stories of discrimination. They are mentioned below.

Denny Portra, a Native American contractor from Underwood, North Dakota, told the North Dakota Advisory Committee of alleged discrimination he encountered while bidding on projects for the Rural Electric Cooperative.[141] Mr. Portra had bid successfully for several years on projects, but after the electrical superintendent retired, his relationship with the cooperative changed dramatically.[142] In 1992 Mr. Portra filed a complaint with the U.S. Department of Justice accusing the cooperative of bid fraud based on race because another contractor was allowed to underbid him by $6.[143] He obtained two attorneys who were unable to assist him. He has made hundreds of telephone calls, spent thousands of dollars, and basically has nowhere to turn.[144]

Lynn Iverson of Bismarck, who has been blind since birth, reported on discrimination from a personal and professional perspective. While working in the Office of the Attorney General as a legal intern, she responded to telephone and written inquiries from the general public concerning discrimination issues in employment, housing, and transportation services, etc., for people with disabilities.[145] She said that many people with disabilities expressed frustration with the great amount of effort required to obtain services.[146] Ms. Iverson said she would try to refer complainants to an individual or agency; however, they usually would call again frustrated and seeking additional assistance.[147] She also was asked to act as an advocate, but she was limited to providing encouragement and referrals.[148]

She said she would share these cases during staff meetings, and she was encouraged to do as much as she could, but the Office of the Attorney General did not have the resources to help. She became known as the “handicapped expert” and she spent her own money paying readers to research and identify referrals for people.[149] This same scenario was carried out while she was employed as a legal assistant with the North Dakota Workers Compensation Bureau and as an independent living counselor with an agency assisting people with alternative living concerns.

After living out of State for a period of time, in 1992 Ms. Iverson returned to North Dakota and applied for services from a State agency. She was told she was not eligible for services because her blindness did not constitute a substantial handicap to employment.[150] Fortunately, an attorney agreed to represent her and it took 5 long, difficult months to get the decision reversed. She was finally eligible for services, but it took an additional 17 months to receive adaptive equipment needed for employment.[151]

Carlotta McCleary, a resident of Bismarck and concerned parent, shared information at the factfinding meeting’s open session about the difficulty she experienced in trying to obtain services for her disabled son and enroll him in a neighborhood school. In order for her son to receive assistance, she had to change his disability classification.[152] Ms. McCleary called the North Dakota Department of Public Instruction for help, and she was told that it was not an enforcement agency and could not step in and make corrections, although it realized there were irregularities.[153] She said that parents would like to exercise their civil rights, but they cannot afford to do so because the system is stacked up against them.[154]

Lionel Muthiah of Mandan, a United Methodist minister, advocate for civil and human rights, and chairman of the Martin Luther King, Jr. Holiday Commission, told the North Dakota Advisory Committee that minority people are treated differently because of their accent, ancestry, and the color of their skin.[155] He shared the following examples:

Mr. Muthiah raised the question of treatment of Hispanic migrant workers regarding living conditions, the lack of persons of color employed by local TV stations, and the lack of people of color working in managerial positions in local department stores.[157] He commented that, fortunately, Bismarck area schools and the local university and college are dealing with issues of racism, but more needs to be done.


[1] Keith Elston, transcript of factfinding meeting conducted by the North Dakota Advisory Committee to the U.S. Commission on Civil Rights in Bismarck, ND, May 16, 1996, p. 9 (hereafter cited as Transcript 2).

[2] Ibid., pp. 9–10.

[3] Ibid., p. 10.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid., p. 49.

[8] Ibid., p. 13.

[9] Ibid.

[10] Ibid., p. 14.

[11] Ibid., p. 13. According to the North Dakota State Bar Association, there are 1,393 practicing attorneys in the State. Of that number, 21 attorneys are identified to specialize in civil rights employment discrimination litigation through their participation in the Lawyers Referral Program to which they pay a fee of $50 per year and are referred potential clients from the State Bar Association. Note: there may be other attorneys who handle civil rights cases but are not identified.

[12] Ibid., pp. 13–14.

[13] Ibid.

[14] Ibid. The complainant had the option to appeal the decision to a higher court.

[15] Ibid., p. 15.

[16] Eileen Olson, Transcript 2, p. 163.

[17] Ibid.

[18] Ibid., p. 164.

[19] Ibid., pp. 165–66. Ms. Olson was disqualified for food stamps because the State erroneously counted federally allocated monies she received to purchase a disabled-adapted van as income. Her class action suit settlement required that she and others who met the requirements be reimbursed for food stamps denied by the Human Services Department.

[20] Connie McBride, Transcript 2, p. 26. Green Thumb, Inc., is a 31-year-old private, nonprofit organization that operates in 44 States and in Puerto Rico. Founded in 1965, it is the country’s first older worker employment program.

[21] Ibid. Although services are targeted to people over the age of 55, people of all ages are helped.

[22] Ibid., p. 27.

[23] Ibid.

[24] Ibid., p. 28.

[25] Ibid. This study was conducted for the American Association of Retired Persons by the Fair Employment Council of Greater Washington.

[26] Ibid., pp. 28–29.

[27] Ibid., p. 29.

[28] Ibid.

[29] Ibid., p. 30.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid., pp. 31–32.

[34] Ibid., p. 32.

[35] Ibid., pp. 32–33.

[36] Ibid., p. 34. Green Thumb data show the average age of workers is 69. Average income, prior to supplementary income earned through Green Thumb, is $5,134.98 per year. Ibid., p. 37.

[37] Ibid., pp. 35–36.

[38] Ibid., p. 36.

[39] Ibid.

[40] Ibid., p. 50.

[41] Ibid., pp. 50–51.

[42] Ibid., p. 36.

[43] Ibid., p. 37.

[44] Ibid.

[45] Linda Catalano, Transcript 2, pp. 69–70.

[46] Ibid., p. 70.

[47] Ibid.

[48] Ibid.

[49] Ibid., pp. 70–71.

[50] Ibid., p. 71.

[51] Ibid. The agency did not have detailed statistics on the types of cases it received, i.e., discrimination based on gender, race, or other bases.

[52] Ibid.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid., p. 72.

[57] Catalano, Transcript 2, pp. 73–74. Ms. Catalano shared one example where an individual who had been diagnosed with AIDS was denied medical treatment, and the agency was able to resolve that situation.

[58] Ibid., p. 75.

[59] Ibid., p. 72.

[60] Ibid.

[61] Ibid., p. 94.

[62] Ibid., p. 103.

[63] Ibid., pp. 72–73.

[64] Ibid., p. 73. Toll-free numbers are available to citizens contacting the North Dakota Department of Labor.

[65] Ibid.

[66] Ibid., p. 74.

[67] Ibid., p. 75.

[68] Ibid.

[69] Ibid.

[70] Ibid., p. 76.

[71] Ibid., pp. 77, 106–07.

[72] Ibid., p. 76.

[73] Ibid., pp. 76–77.

[74] Ibid., p. 104. A Federal law enacted in 1974 established the Legal Service Corporation to fund civil legal services to poor people throughout the country. Ibid., p. 105.

[75] Ibid., pp. 105–06.

[76] Barry Nelson, transcript of factfinding meeting conducted by the North Dakota Advisory Committee to the U.S. Commission on Civil Rights in Fargo, ND, Sept. 24, 1996, vol. 1, pp. 58–61. Mr. Nelson works closely with the Refugee Resettlement Program of Lutheran Immigration and Refugee Services and the Episcopal Migration Ministries.

[77] Ibid., p. 61. These individuals represent Vietnam, Iraq, the Sudan, Somalia, Cuba, Haiti, Kurdistan, the former Soviet Union, and Bosnia, among others. They arrive with English language capabilities that range from excellent to nonexistent.

[78] Ibid., pp. 58–61.

[79] Ibid., pp. 59, 62.

[80] Ibid., pp. 62–63.

[81] Ibid., p. 63.

[82] Ibid., pp. 63–64.

[83] Ibid., p. 64.

[84] Ibid., p. 64.

[85] Ibid., pp. 64–65.

[86] Ibid., pp. 65–66.

[87] Ibid., p. 66.

[88] Ibid., pp. 66–67.

[89] Ibid., p. 67.

[90] Linda Johnson, Transcript 2, p. 18.

[91] Ibid., pp. 45–46.

[92] Ibid., p. 18.

[93] Ibid.

[94] Ibid.

[95] Ibid., pp. 20–21.

[96] Ibid., p. 21.

[97] Ibid., p. 18.

[98] Ibid.

[99] Ibid., p. 19.

[100] Ibid.

[101] Ibid. Housing providers who either had a large number or small number of properties to rent were tested.

[102] Ibid., p. 21.

[103] Ibid.

[104] Ibid., p. 18.

[105] Ibid., p. 19.

[106] Ibid., pp. 19–20.

[107] Ibid.

[108] Ibid.

[109] Ibid.

[110] Ibid.

[111] Ibid., p. 21.

[112] Ibid.

[113] Ibid., pp. 21–22.

[114] Elizabeth Sweet, Transcript 2, p. 377. The average length of stay is 1 year.

[115] Ibid., p. 378.

[116] Ibid., pp. 376–78.

[117] Ibid., p. 380.

[118] Myrt Armstrong, Transcript 2, pp. 63–66.

[119] Ibid., p. 67.

[120] Ibid., pp. 66–67.

[121] Gerard Friesz, Transcript 2, pp. 78–79.

[122] Ibid., p. 80. Friesz said that employees call his agency with the perception that the agency is a governmental body that stands for workers’ rights.

[123] Ibid., pp. 80–81.

[124] Ibid., p. 81.

[125] Ibid., pp. 82, 97.

[126] Ibid., pp. 82–83.

[127] Ibid., p. 96.

[128] Ibid., p. 83.

[129] Ibid., pp. 83–84.

[130] Dave Boeck, Transcript 2, p. 158.

[131] Ibid., pp. 157–58.

[132] Ibid., p. 158.

[133] Ibid., p. 159.

[134] Cheryl Red Eagle, Transcript 2, p. 167.

[135] Ibid.

[136] Ibid.

[137] Ibid., p. 169.

[138] Ibid., p. 170.

[139] Ora Robinson, Transcript 2, pp. 175–76.

[140] Ibid., pp. 184–85.

[141] Denny Portra, Transcript 2, p. 345.

[142] Ibid., pp. 345–46.

[143] Ibid., pp. 346, 351. It took approximately 18 months for the U.S. Department of Justice to send a representative to investigate.

[144] Ibid., p. 350. Some of the organizations contacted included the North Dakota Indian Affairs Commission, the Federal agency hotline, the Inspector General of North Dakota, and the Associated General Contractors of North Dakota, of which he is a member. Ibid., pp. 355, 353, 356, respectively.

[145] Lynn Iverson, Transcript 2, pp. 359–60. Ms. Iverson obtained her law degree in 1985 and began employment with the Office of the Attorney General immediately after graduation until 1988. Any telephone or written inquiries were followed up with written correspondence; however, Ms. Iverson did not know whether any type of log was maintained. Ibid., p. 365.

[146] Ibid., p. 360.

[147] Ibid.

[148] Ibid., p. 361.

[149] Ibid., p. 366.

[150] Ibid., p. 362.

[151] Ibid., p. 363.

[152] Carlotta McCleary, Transcript 2, p. 371. To enroll her 5-year-old son and obtain services in the local school system, Ms. McCleary changed her son’s diagnosis classification from “emotional disorder” to “other health impaired.” Otherwise, he would have been placed in a residential treatment center. Ibid., pp. 370–71.

[153] Ibid., p. 375.

[154] Ibid., pp. 373–74. Ms. McCleary sought the assistance of the Protection and Advocacy Project.

[155] Lionel Muthiah, Transcript 2, pp. 383–84.

[156] Ibid.

[157] Ibid., pp. 385–86.