Annual Report
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HAWAI‘I CIVIL RIGHTS COMMISSION 2012-2013 Annual Report Neil Abercrombie, Governor Dwight Takamine, Director Department of Labor & Industrial Relations Linda Hamilton Krieger Commission Chair William Hoshijo Executive Director 830 Punchbowl Street, Room 411 Honolulu, Hawai‘i 96813 Phone (808) 586-8636
Mission Statement .......................................................................................... 3 Overview ....................................................................................................... 3
Mediation Program........................................................................................... 7 Public Education and Outreach........................................................................ 9 Caseload Statistics .......................................................................................... 11
Case Settlements ............................................................................................ 18 Case Decisions ............................................................................................... 20 Legislation......................................................................................................... 21 Appendix .......................................................................................................... 22
Mission Statement The mission of the Hawai‘i Civil Rights Commission is to eliminate discrimination by protecting civil rights and promoting diversity through enforcement of anti-discrimination laws and education. Overview The State of Hawai‘i’s Constitutional Civil Rights Mandate Article I, Section 5 of the Hawai‘i Constitution is the foundation of our state civil rights laws. It provides that: “No person shall … be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.” There is no counterpart to this civil rights mandate in the U.S. Constitution. The HCRC’s Highest Priority Continues to be Restoring Lost Civil Rights Law Enforcement Capacity Since 2008, the Hawaiʻi Civil Rights Commission (HCRC) has lost 8 of 30 permanent positions. The loss of 3 of 11 (27%) permanent investigator positions has had a devastating impact on the HCRC’s capacity to timely and effectively investigate discrimination, from intake through investigation and disposition of complaints. A comparison of the HCRC’s investigation caseload data from 2007 (before the recession), the resulting reduction in force, and current caseload data reflects a direct and critical impact on the efficacy of the HCRC as the state law enforcement agency responsible for investigation of complaints of discrimination in employment, housing, public accommodations, and state-funded services. The loss of experienced permanent staff due to RIF and abolishment of positions, hiring freezes and delays in hiring for remaining positions, compounded by loss of productivity due to furloughs and supplemental time off, has had a crippling impact on the HCRC’s capacity to carry out its statutory mandate. In July of 2007, the HCRC’s investigation caseload was 247 cases. At the end September 2013, the investigation caseload was 436 cases, a 77% increase. The growing caseload, with fewer investigators, makes timely investigation difficult if not impossible. At the end of calendar year 2007, the HCRC investigation caseload was 281 cases. The age of those cases, from date of complaint filing was: 1 case more than two years old (0%); 62 cases (22%) between one-two years old; and 218 (78%) less than one year old. At the end of September 2013, the growing caseload and loss of capacity caused dramatic increases in the age of cases in the investigation caseload of 436 cases: 108 cases (24.8%) more than two years old; 20 cases (4.6%) between 18 months - two years old; 55 (12.6%) between one year - 18 months old; and 253 (58%) less than one year old. In addition, at the end of September 2013, the HCRC had 170 pending intakes, in which a complaint had not yet been filed. With the current intake caseload, complainants have to wait as long as 3-4 months from the time of initial contact and submission of a pre-complaint questionnaire for a scheduled intake interview, leading to high levels of frustration and increased risk of untimely filing. This is a serious concern, given the 180 day statute of limitations for filing an HCRC complaint, which is required for complainants to exhaust their administrative remedies and preserve their rights. Timely filing and service is in the best interest of both complainants and respondents in discrimination cases, increasing the likelihood of timely disposition of complaints. The increase in the size and age of the investigation caseload is troubling in several respects. Meritorious and complex cases are taking longer to investigate to disposition. Older cases are more difficult to investigate, as witnesses are harder to locate and memories fade. As resources are focused on investigation of older cases, newer cases age and become old cases. Delay makes it more difficult to effectively investigate, conciliate, and litigate complaints, and causes frustration for both complainants and respondents. There is a direct relationship between loss of capacity in investigation staffing, delay, and diminished capacity to enforce the laws under HCRC jurisdiction and obtain just disposition of complaints. The size and age of the investigation caseload and reduced staffing level has led the HCRC to consider administrative dismissal of complaints that cannot be timely investigated. This would temporarily alleviate the immediate investigation caseload problem, but at the expense of the HCRC’s enforcement mandate and responsibility. With restored capacity, HCRC enforcement efforts will be re-focused on strong enforcement, with a strategic emphasis on dedicating resources to priority cases. Fair and Effective Enforcement – History and Structure of the HCRC The HCRC was organized in 1990 and officially opened its doors in January 1991. For twenty-two years the HCRC has enforced state laws prohibiting discrimination in employment (H.R.S. Chapter 378, Part I), housing (H.R.S. Chapter 515), public accommodations (H.R.S. Chapter 489), and access to state and state-funded services (H.R.S. §368-1.5). The HCRC receives, investigates, conciliates, and adjudicates complaints of discrimination. The HCRC has five (5) uncompensated volunteer Commissioners. They are appointed by the Governor, with the consent of the Senate, based on their knowledge and experience in civil rights matters and commitment to preserve the civil rights of all individuals. The HCRC is attached to the Department of Labor & Industrial Relations (DLIR) for administrative purposes. An Effective and Uniform Enforcement SchemePrior to the establishment of the HCRC, jurisdiction over state anti-discrimination laws was split among several state departments. Enforcement was limited and sporadic. State prosecution of discrimination complaints was virtually non-existent. Nearly all aggrieved were left with litigation of individual lawsuits as their only recourse. For complainants who could not afford private attorneys to seek remedies in court, there was no administrative process to adjudicate their claims. As a result, few employment discrimination cases were brought to court under state law, and there were few court interpretations of state law. The intent of the legislature in creating the HCRC was “...to establish a strong and viable commission with sufficient ... enforcement powers to effectuate the State’s commitment to preserving the civil rights of all individuals.”1 The cornerstone of the HCRC statutory scheme was the establishment of a uniform procedure “...designed to provide a forum which is accessible to anyone who suffers an act of discrimination.”2 Fair Administrative Process The HCRC is committed to, and its procedural safeguards are structured to ensure fairness to both complainants and respondents. The HCRC is divided into two separate and distinct sections: a) the enforcement section, which receives, investigates, and prosecutes discrimination complaints; and b) the adjudication section which conducts hearings, issues orders and renders final determinations on complaints of discrimination filed with the HCRC. The Commissioners have delegated HCRC enforcement authority to the Executive Director. The Commissioners have authority to adjudicate and render final decisions based on the recommendations of their Hearings Examiner, and oversee the adjudication section through their Chief Counsel.3 The Commissioners, Chief Counsel, and Hearings Examiner are not involved in or privy to any actions taken by the Executive Director in the investigation and pre-hearing stages of the HCRC process. Likewise, the Executive Director and enforcement section are not permitted to communicate ex parte with the Commissioners, Chief Counsel or Hearings Examiner about any case. The HCRC investigates complaints of discrimination as a neutral fact-gatherer. At the conclusion of an investigation, a determination is made whether or not there is reasonable cause to believe unlawful discrimination has occurred. The law requires filing of a complaint with the HCRC in most (but not all) cases before filing a discrimination lawsuit in state court.4 Otherwise, the state courts will dismiss a lawsuit for failure to exhaust administrative remedies. This requirement reduces court caseloads by eliminating claims which are non-jurisdictional, or non-meritorious, or complaints that are closed or settled through the HCRC administrative process. As a result, the great majorities of cases filed with the HCRC are resolved, reach disposition, and are closed without resort to the courts. Civil Rights Law Enforcement: State & Federal LawFederal fair employment and fair housing laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and U.S. Department of Housing and Urban Development (HUD), respectively. Pursuant to work share and cooperative agreements, both EEOC and HUD rely on the HCRC to investigate complaints filed under both state and federal law (“dual-filed” complaints). Both EEOC and HUD contracts require maintenance of state effort and dedication of state resources for investigation of dual-filed complaints. While Hawai‘i and federal fair employment and fair housing laws are similar, they are not identical. Hawai‘i has more protected bases than federal law, and there are substantial differences in the definition of “employer” and the statute of limitations for filing charges of employment and housing discrimination. In addition to these jurisdictional differences, Hawai‘i law provides stronger protections against pregnancy discrimination and sexual harassment in employment. The greater protections in Hawai‘i law are attributable to the strong civil rights mandate contained in the Hawai‘i State Constitution, HCRC statutes, HCRC rules, HCRC Commission decisions, and state court interpretations. In contrast, federal court interpretations of federal civil rights laws have historically resulted in narrower protections against discrimination. The issue of state versus federal standards is an important one, particularly in states like Hawai‘i that have a strong commitment to equal opportunity and non-discrimination. Mediation Program The HCRC's voluntary mediation program completed its fourteenth full year on June 30, 2013. The program enjoyed one of its most successful years, despite operating without an Administrative Assistant – Mediation Coordinator who had previously overseen the program. The position has been vacant since the passing of the long-time Mediation Coordinator in 2011. The HCRC has been working on re-describing the position and filling it, subject to delays due to budget constraints. While this position has been vacant, the HCRC has used other enforcement staff, including managers and investigators, to run the mediation program, taxing already reduced enforcement capacity. Complainants, respondents and the HCRC, with the strong support of the Commissioners, want prompt and fair resolutions to discrimination complaints. To help accomplish this goal, the HCRC developed its voluntary mediation program, a process in which neutral third persons (often a team of two co-mediators with at least one attorney-mediator) help the parties discuss, clarify and settle complaints. The HCRC voluntary mediation program uses trained community mediators who are unbiased and do not rule on the merits of the complaint. The HCRC provides the mediators with the basic facts of each case needed to understand the dispute. The mediators then assist the parties to reach voluntary agreements. These agreements may include apologies, policy changes, monetary settlements, or other appropriate solutions. Mediation saves time, money and resources. It also eliminates the stress of litigation and allows the parties to explain their side of the case and to control the process of resolving the disputes in a non-adversarial manner. The HCRC works with trained, senior mediators from the Mediation Centers of Hawaii (MCH), a statewide network of community non-profit mediation centers. MCH utilizes a facilitative approach to mediation. MCH mediators receive training on civil rights laws and settling disputes by HCRC and MCH staff on a regular basis. The HCRC mediation coordinator facilitates the process by explaining, encouraging, referring, and reviewing mediation and its benefits to the parties. There are mediation centers on O‘ahu (Mediation Center of the Pacific), Maui (Mediation Services of Maui), east Hawai‘i (Ku‘ikahi Mediation Center in Hilo), the West Hawai‘i Mediation Center in Kailua-Kona, and Kaua‘i (Kaua‘i Economic Opportunity, Inc. Mediation Program). The centers charge fees on a sliding scale for the sessions, which can be waived or reduced if there is financial hardship. Private mediation is also available if the parties choose. Private mediations generally utilize an evaluative approach, in which applicable law,and possible liability and damages are evaluated and discussed. Private mediation is an important part of the HCRC mediation program. Parties are free to select commercial private mediators who charge market rates or private mediators from the Access ADR program, a reduced fee program of the MCP. Mediation can occur at any stage of the intake, investigation, conciliation, or hearing process. Mediation is first offered when the complaint is accepted. At this early stage disputes are often easier to resolve because the facts are fresh, damages may not have accumulated, and the positions of the parties may still be fluid. However, parties may voluntarily choose mediation at any time during the HCRC investigative, conciliation or hearing process. During FY 2013, 59 cases were referred into mediation, and 59 mediations were completed (dispositions). Of the 59 dispositions, 41 resulted in mediated settlements (69.5%), and 18 cases resulted in no agreement (30.5%). Of the 41 mediated settlements, 34 were in employment cases, and 7 were in public accommodations cases. The total disclosed monetary value of mediated agreements was $190,637 with a wide variety of affirmative relief as well. (In 17 cases, the monetary consideration was subject to a confidentiality clause and not disclosed.) Mediation Center of the Pacific had 23 settlements; Mediation Services of Maui had 4 settlements; West Hawaii Mediation Center had 3 settlements; Ku`ikahi Mediation Services (Hilo) had 1 settlement; and there were 10 settlements with private mediators. The primary bases of discrimination of the 41 settlements were as follows: Sex -- 4 (including 3 pregnancy and 4 sexual harassment); Disability -- 9; Retaliation -- 4; Arrest and Court Record -- 3; Sexual Orientation -- 3; Age -- 3; Marital Status -- 2; Ancestry -- 1; Color -- 1; National Origin -- 1. Many of the completed mediations also included charges on other protected bases. 28 mediated settlements were cases dual-filed with the EEOC. Although monetary settlements were achieved in most agreements, almost all mediated agreements also involved some form of non-monetary affirmative relief. Examples of non-monetary relief include: 1) frank discussion of disputes, which often lay the groundwork for eventual settlement or restoration of the prior employment relationship; 2) reinstatement and/or restoration of employee benefits; 3) formal or informal apologies (by either or both sides); 4) increasing hours for part-time employees; 5) providing neutral or positive references for former employees; 6) removal of inappropriate negative comments in employee records; 7) provision of reasonable accommodations; 8) changing shifts when practicable; 9) policy revisions and postings; and 10) clarification of communications between employer and employee, leading to more productive working environments. Public Education & Outreach In addition to enforcing anti-discrimination laws, the HCRC is committed to preventing and eliminating discrimination through public education. The HCRC Commissioners and staff maintained or assisted in a number of civil rights public education efforts, working with civil rights, business, labor, professional, and non-profit organizations, on new and continuing initiatives. The HCRC conducted its annual training in October 2012 at the Blaisdell Exhibition Hall, for over 260 attendees. The theme of the training was “EEO Updates and Understanding Reasonable Accommodations” and included an address on civil rights by HCRC Commission Chair Linda Krieger. The training featured panels on EEO updates, requests for accommodations, and the interactive process, as well as a mock mediation of a disability discrimination case involving an accommodation request. In addition, the winners of the E `Ola Pono Art & Video Competition, a statewide student contest co-sponsored by the HCRC, OHA, the UH Center on Disability Studies, the Jack Johnson Ohana Foundation, and Hawaiian Telcom, were presented by former Commissioner Sara Banks. During FY 2013 the HCRC completed work on two projects funded through a U.S. Department of Housing and Urban Development (HUD) Partnership Initiative (PI) grant: In the first of these HUD PI projects, the HCRC partnered with the Medical Legal Partnership for Children in Hawaiʻi (MLPC Hawaiʻi) to engage in targeted outreach to Compact of Free Association (COFA) immigrant5 communities. Often referred to as “Micronesians” in Hawaiʻi, these are people from the COFA nations of The Federated States of Micronesia (FSM)(Yap, Pohnpei, Chuuk, Kosrae), the Republic of the Marshall Islands, and the Republic of Palau. In partnership with the HCRC, MLPC Hawaiʻi hosted nine newcomer education / civil rights – fair housing workshops, eight on Oahu and one on Maui, reaching over 250 residents from COFA nations and more than 70 service providers and advocates who assist these resident families. The HUD PI funded project also included the production of four two-minute videos on the subjects of fair housing, fair employment, language access, and what to do if you are discriminated against, with voice-over versions in Chuukese, Ilocano, and Tagalog. In the second HUD PI project, the HCRC partnered with Dr. Suzanne Zeng and Language Services Hawaiʻi to develop protocols for obtaining translations of outreach materials and vital documents. During FY 2013 the HCRC continued to be an active participant in the fair housing committee, comprised of representatives from the housing departments of each county and the State, HUD Honolulu Field Office, Legal Aid Society of Hawaii, Fair Housing Enforcement Program, Hawai`i Disability Rights Center, Hawaiian Homelands, and other housing-related private and public entities. The committee met to learn and discuss the latest fair housing cases, legal issues, and recent developments in Fair Housing from a Federal, State and local perspective, to corroborate on local fair housing issues and concerns, and to work together to promote fair housing throughout the islands. The committee continued to corroborate on an annual joint private-public awareness fair housing campaign involving public service announcements on television, radio and print media. The HCRC also worked with HUD, state and county housing agencies, community fair housing organizations, non-profit and for-profit organizations, and businesses to co-sponsor fair housing trainings on the Islands of Maui, Moloka`i, Kaua`i, Hawai`i, and O`ahu. Representative trainees in the housing area included the Board of Realtors, Property Managers Association, National Association of Residential Property Managers, Community Associations Institute (CAI) Hawaii, Hawaii Center for Independent Living (HCIL), landlords, tenants, homeless veterans, emergency shelter and transitional housing management/staff, case management staff, housing assistance/referral management/staff, and various property management companies and community associations. An estimated 500+ people took advantage of these informative and free trainings. During FY 2013 the HCRC also conducted outreach and/or participated in the following:
The HCRC website is part of a consolidated website that includes all divisions of the Department of Labor & Industrial Relations. The HCRC relies on the DLIR webmaster for maintenance and updating of the HCRC website, as well as ongoing efforts to improve accessibility and user-friendliness of the site. The site continues to attract broad public interest, particularly to those pages on administrative rules, case decisions, and the mediation program. |