The HCRC promotes and encourages settlement during all stages of the complaint process. Through pre-determination settlements, mediation, and conciliation, the HCRC obtains relief and resolves complaints while avoiding unnecessary litigation. These settlements provide closure for the parties and conserve HCRC investigation and litigation resources for complex or precedent setting cases.
During FY 2013 the HCRC continued to successfully obtain monetary relief through settlement of complaints. In the 4 cause cases that were settled, HCRC attorneys obtained monetary settlements totaling $75,700. Of the 81 cases settled prior to an investigative finding, 39 of those cases involved confidential settlements, the terms of which were not disclosed to the HCRC. Of the remaining 42 cases settled prior to an investigative finding, monetary relief totaled $262,154. This figure includes pre-determination settlements obtained through HCRC investigators and settlements between the parties ($71,517), as well as investigative settlements obtained through the HCRC mediation program ($190,637). Collectively the HCRC’s known monetary settlements for FY 2013 totaled $337,854. Since the settlement terms are unknown for 39 closed cases, the actual total figure for all monetary settlements in FY 2013 is probably significantly higher than $337,854.
In addition to monetary relief, significant affirmative relief was obtained. The HCRC seeks affirmative relief for four basic reasons: to enforce civil rights laws, stop discriminatory conduct, prevent future harm to complainants, and assist respondents in avoiding future violations. HCRC settlements and conciliation agreements routinely contain various types of affirmative relief including the development and implementation of non-discrimination policies, employee and supervisor training on non-discrimination policies, posting non-discrimination policies, and publishing notices informing the public of the HCRC’s role in enforcing state non-discrimination laws.
In some instances, non-monetary relief can be an important element of a settlement. For example, in FY 2013, there were complainants who received letters of apology pursuant to the terms of a settlement. A simple apology sometimes goes a long way towards healing the rift between a complainant and respondent, and this form of relief is often not available as a court ordered remedy. Some cases were resolved when an employer, housing provider, or public accommodation corrected an unlawful discriminatory policy or practice after notice of the violation. During FY 2013, a significant number of employers, housing providers, and public accommodations voluntarily agreed to correct unlawful employment applications, leave policies, or house rules.
The following are illustrative of the HCRC cases that were resolved through conciliation or mediation and describe the relief obtained during FY 2013:
In a case involving disability discrimination in a place of public accommodation, the complaint settled for the posting of a non-discrimination policy, training of staff, and modification of facilities to increase access to persons with disabilities.
In an employment case involving sex (pregnancy) discrimination, the complaint settled for $29,000, review of a nondiscrimination policy, and a neutral job reference.
In a housing case involving familial status discrimination, the complaint settled for $1,000, adoption of a non-discrimination policy, training, and a letter of apology.
In an employment case involving discrimination on the basis of sex, sexual orientation, and retaliation, the complaint settled for $10,000, review and posting of a non-discrimination policy, and training of managers and supervisors.
In an employment case involving discrimination on the basis of arrest and court record, the complaint settled for $4,500 and consideration of the complainant for future employment opportunities.
In a housing case involving discrimination on the basis of disability and retaliation, the complaint settled for $300, posting of a non-discrimination policy, training, and a letter of apology.
HCRC Warning Letters
In an effort to prevent future or recurring problems, the HCRC provides respondents with “warning letters” advising them of potentially unlawful practices that the HCRC discovers during the course of its investigation of claims against the respondent. In those instances in where the HCRC investigation does not result in a recommendation of reasonable cause on the claims filed, and the HCRC investigator finds evidence of other unlawful practices (such as a discriminatory written policy, employment application, or conduct in the workplace that could rise to the level of unlawful harassment if repeated), the HCRC will advise the respondent of the potential violations and provide the respondent information about how it can correct the possible violation of the law. Warning letters have resulted in policy and application form changes, as well as discrimination prevention training for employees and managers.
In AOAO of Lililuokalani Gardens v. Taylor, Civ. No. 11-00751 (D. Haw.), the HCRC filed an amicus brief in support of Defendant Taylor, who requested an accommodation to his condominium association’s “no pets” rule to allow him to keep an emotional support dog in his unit. The AOAO and Taylor filed cross motions for summary judgment on the two issues of: a) whether an animal must have special training in order to be a reasonable accommodation under federal and state fair housing laws; and b) the applicability of the decision in Prindable v. Assoc. of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D. Haw. 2003) to the issue. The HCRC asserted that an untrained assistance animal may be a reasonable accommodation under HRS Chapter 515 because the relevant standard is not whether the animal has been specially trained, but whether the animal performs the disability-related assistance or benefit needed by the person with the disability. The HCRC also asserted that the decision in Prindable should not be followed because that case did not deal with a request for an untrained assistance animal as a reasonable accommodation. On August 31, 2012 the U.S. District Court agreed with these assertions and held that the AOAO could not deny an accommodation request for an emotional support animal merely because the animal had not received specialized training. This decision can be found at: 892 F. Supp. 2d 1268 (D. Haw. 2012).
On November 30, 2012 the HCRC filed an amicus brief in the case of Lales v. Wholesale Motors, Inc. (Hawaiʻi Supreme Court No. 28516). This case involved a claim of ancestry harassment against a supervisor and the employer. The HCRC asserted that individual supervisors and agents could be liable for discriminatory conduct under HRS § 378-2 and that an employer is strictly liable for supervisor harassment pursuant to HAR §§ 12-46-109(c) and 12-46-175(d). A decision by the Hawaiʻi Supreme Court is pending in this case.
On December 19, 2011 the HCRC intervened in Cervelli v. Aloha Bed & Breakfast , Civ. No. 11-1-3103-12 (First Circuit Court), a case involving a proprietor of a bed and breakfast establishment who refused to allow a same sex couple to stay at the B&B because of their sexual orientation. Defendant Aloha Bed and Breakfast asserted that it was subject to the fair housing law (HRS Chapter 515) and fell under the “tight living” exemption found in HRS § 515-4, which exempts a home owner from the state fair housing law if the home owner rents up to four rooms in a house the owner resides in. The parties filed cross motions for summary judgment on the issue of whether the bed and breakfast was governed by the fair housing law or the public accommodations law. On April 11, 2012 the First Circuit Court granted the Plaintiff’s and HCRC’s motion, holding that the B&B was a public accommodation under HRS Chapter 489 because it is an establishment that provides lodging to transient guests and services relating to travel, and that the B&B could not discriminate based on sexual orientation. The decision is presently on appeal at the Intermediate Court of Appeals.
Two bills relating to civil rights were passed during the 2013 regular legislative session. Senate Bill 535, enacted as Act 248, amends HRS Chapter 378 to protect domestics against employment discrimination in the terms, conditions and privileges of employment, but not in hiring and firing. Protections include unequal pay and harassment. Under the new law it is illegal for an employer to discriminate against a domestic employee on these bases because of race, sex (including gender identity or expression), sexual orientation, age, religion, color, ancestry, disability or marital status. However, employers of domestics can choose who they want to work in their home and can hire and fire for any reason. Domestic work includes caring for a child, serving as a companion for the sick or elderly, housekeeping, cleaning, cooking or any other domestic service. Hawaii is the second state in the U.S. to enact such a law.
Senate Bill 532, enacted as Act 249, also amends HRS Chapter 378 to create a new Part to require reasonable break times and locations for breastfeeding employees. The law requires employers to post notices to inform employees of these requirements and allows employee to file a civil action for violations. Breastfeeding employees continue to be protected from discrimination under HRS § 378-2(7).