Annual Report
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AppendixOverview The Hawai‘i Civil Rights Commission (HCRC) was established under Act 219, L. 1988, and Acts 386 and 387, L. 1989. The HCRC’s enabling statute, H.R.S. Chapter 368, declares that discrimination because of race, color, religion, age, sex (including gender identity and expression), sexual orientation, national origin, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy. Certain bases are not protected under all HCRC laws. The HCRC exercises jurisdiction over Hawai‘i’s 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). Under its statutory mandate, the HCRC receives, investigates, conciliates, litigates, and adjudicates complaints of discrimination, providing a uniform procedure for the enforcement of the state’s discrimination laws. The HCRC has five (5) uncompensated volunteer Commissioners who are appointed by the Governor, with the consent of the Senate, based on their knowledge and experience in civil rights matters and their commitment to preserve the civil rights of all individuals. The HCRC is attached to the Department of Labor & Industrial Relations (DLIR) for administrative purposes. During FY 2012 the HCRC had 26 positions, divided into separate enforcement and adjudication sections. Administrative Procedure Before the HCRC accepts a complaint of discrimination, a complaining person must allege that:
Where appropriate, after a complaint is filed with the HCRC, the parties are offered an opportunity to voluntarily mediate the complaint through the HCRC Mediation Program. If the parties agree to mediate, the HCRC mediation coordinator refers the parties to a community mediation center, which schedules and holds mediation sessions. Parties may alternatively choose to hire a private mediator. In cases not referred to mediation, or those in which mediation is unsuccessful, an HCRC investigator conducts an objective, fact-finding investigation. HCRC investigators are impartial and gather evidence to allow the Executive Director to make a determination in each case. The HCRC investigator collects, reviews, analyzes documents, and contacts and interviews witnesses. Some witnesses may be identified by the complainant or by the respondent, and some are independent witnesses, including experts, who are identified by the investigator, by other witnesses, or are discovered during the course of the investigation. In many cases, the investigator also attempts to settle the complaint prior to an investigative determination (pre-determination settlement). After an HCRC investigation is completed, H.R.S. 368-13(b)-(c) requires the Executive Director to determine whether reasonable cause exists to believe that discrimination has occurred. Where no reasonable cause is found, the Executive Director dismisses the complaint and issues a right to sue letter to the complainant. Where a determination of reasonable cause is recommended, the complaint is assigned to an HCRC enforcement attorney for legal review and final recommendation to the Executive Director. Upon the issuance of a finding of reasonable cause to believe that unlawful discrimination has occurred, the HCRC enforcement attorney attempts to conciliate or settle the complaint.4 If conciliation is unsuccessful, the complaint is docketed for a contested case hearing. An HCRC enforcement attorney presents the case in support of the complaint before an impartial hearings examiner. The respondent (represented by themselves or by counsel or representative of their choice) is also given the opportunity to present his/her case at the hearing. Generally, a complainant may intervene in the contested case process as a party and also be represented by counsel or other representative of their choice. After the completion of the contested case hearing, the hearings examiner issues a proposed decision based on the evidence. The five-member Commission Board then reviews the proposed decision and the hearing record. The parties may file written exceptions and support statements and present oral arguments to the Board. The Commission Board then accepts, rejects, or modifies the proposed decision, issues a final decision and order, and awards remedies, if appropriate. This decision is legally binding. If any party disagrees with the decision, she/he has 30 days to file an appeal to the State Circuit Court. Furthermore, a Respondent who appeals a decision of the Commission Board is entitled to a jury trial on any claims that form the basis for an award of common law damages.5 The HCRC enforcement and administrative hearing process is more cost effective than litigation in court. It provides for the investigation of complaints and access to justice for those who lack the resources to pursue their claims in court. This is particularly important in employment discrimination cases, where employees have often lost their source of income through termination and have little or no control over the evidence needed to prove discrimination. The HCRC enforcement and adjudication process also funnels cases away from the courts, saving judicial resources and associated costs. Complainants who file suit in court must first exhaust administrative remedies by filing a complaint with the HCRC. The primary reason for this requirement is to prevent the courts from being overburdened with non-jurisdictional or non-meritorious complaints, or with complaints that can be closed or settled in the HCRC’s administrative process. In fact, the great majority of complaints filed with the HCRC are resolved or disposed of without resort to the courts.6 Although only a small number of cases are brought to administrative hearing and result in final Commission decisions, these cases are important because they create a body of legal precedent. Case law precedents, in Hawai‘i and across the United States, provide the basis for anti-discrimination principles, such as the doctrine of sexual harassment. Case law also establishes standards that define the rights and protections under civil rights laws, and give guidance to employers, landlords, and businesses on how to prevent and eliminate discrimination. 1 “Unlawful discrimination” may occur in any of the following ways:
2 “Protected basis” is the criteria that it is unlawful for a respondent to discriminate upon. Protected bases vary depending on the statute involved:
3 Complaints filed with the HCRC usually involve a discrete act – such as termination, eviction, demotion, etc. – or involve acts that are ongoing and constitute a continuing violation. An example of a “continuing violation” is sexual harassment that began more than 180 days before the complaint is filed, but continued or ended less than 179 days before the complaint is filed. When discrimination involves a discrete act, such as termination, the HCRC can only accept a complaint within 180 days of that complained action. 4 During FY 2013, of all 355 investigative and attorney case closures, 8.45% (30) were closed on the basis of the complainant electing court action. The remaining cases (325) were closed on the following bases: in 60.28% of the cases (214), the Executive Director found no cause and dismissed the complaint, 22.81% (81) of the investigation cases were settled prior to a cause determination or were resolved by the parties, 1.69% (6) of the cases were resolved by staff attorneys, and the remaining 6.76% of the cases (24) were closed because there was no jurisdiction, the complaint was withdrawn, the complainant was unavailable and could not be located, the complainant failed to cooperate, no significant relief was available, or due to bankruptcy of the respondent. 5 The HCRC enforcement, hearing and appeal procedures are illustrated in Flowchart # 1. In SCI Management Corporation, et. al. v. Darryllynne Sims, et. al., 101 Hawai‘i 438, 71 P.3d 389 (2003), the Hawai‘i Supreme Court held that “a respondent who appeals a final order of the HCRC, pursuant to HRS § 368-16, is entitled to a jury trial on any claims that form the basis for an award of common law damages by the HCRC.” This does not apply to respondents in housing cases, who can elect to take the case to circuit court after a finding of reasonable cause under HRS §515-9. 6 HCRC contested case procedures are illustrated in Flowchart # 2. If no cause determination Notice of Right to Sue issued Circuit Court Reasonable Cause Determination Conciliation Attempted Final Conciliation Demand Case Docketed Hearing Examiner's Proposed Decision Predetermination Settlement Request for Reconsideration Chapter 91 Hearing If settled, case closed If settled, case closed If settled, case closed. Hawai‘i Appellate Courts Appeal to Circuit Court/ Jury Trial De Novo        HCRC Procedural
Initial Inquiry Intake Interview Investigation Complaint Filed Voluntary Mediation If no jurisdiction, complaint not taken If settled, case closed Refer to Flowchart #2 for details.       Flowchart #1
HCRC Contested C  
Appointment of Hearings Examiner & Docketing of Complaint Scheduling Conference Mediation Settlement Conference No Settlement Agreement Settlement Agreement- Case Closed Last day for Complainant to Request Right to Sue     
Discovery/Motions Deadline Pre-Hearing Conference Settlement Conference Exceptions to Proposed Decision Statement in Support of Proposed Decision Oral Argument to Commission      ase Flowchart #2
Settlement Agreement-Case Closed No Settlement Agreement Settlement Agreement - Case Closed Administrative Hearing Hearing Examiner's Proposed Decision Commission's Final Order Case Closed Reconsideration Appeal to Circuit Court/ Jury Trial De Novo      
HCRC Commissioners Linda Hamilton Krieger Chair (term 2011-2015) Linda Hamilton Krieger grew up in Hawai‘i and returned home in 2007 to join the faculty at the William S. Richardson School of Law as a Professor of Law and Director of the Ulu Lehua Scholars Program. Professor Krieger received a BA degree from Stanford University and is a graduate of New York University Law School. Prior to teaching, Professor Krieger worked for 13 years as a civil rights lawyer. From 1980-1986 she was a Staff Attorney and Director of Clinical Programs at the Employment Law Center of the Legal Aid Society of San Francisco, and from 1985-1991 she was a Senior Staff Attorney for the EEOC, San Francisco Regional Office. During that period, she litigated a number of significant state and federal sex and race discrimination cases in the areas of pregnancy discrimination and sexual harassment. She also played a significant role in drafting state and federal legislation in these subject matter areas. Professor Krieger has also published numerous articles on Title VII of the Civil Rights Act of 1964, disability discrimination, affirmative action, international comparative equality law and policy, and theories of law and social change. Raymund Liongson Commissioner (term 2011–2015) Raymund Liongson is an Associate Professor and Coordinator of the Philippine Studies Program at Leeward Community College and the director of Sulong Aral, a program funded by the U.S. Department of Education to help students of Filipino ancestry finish college. He is a board member of the Filipino Community Center, and is also a member and past president of the Filipino Coalition for Solidarity, an advocacy group for Filipino American W.W. II veterans, immigrants and workers in the areas of discrimination, language access, domestic violence and sexual harassment. In 2010, Professor Liongson spearheaded Filipino census fairs in Waipahu and Kalihi to encourage those communities to participate in the 2010 census. In 2009, he was part of a fact-finding commission to investigate labor and management practices at the Pacific Beach Hotel and has been active in promoting job security, wage increases and better benefits for Filipino hotel workers. Professor Liongson received his M.A. in education from Northwestern University in the Philippines and Ph.D. in education from the University of the Philippines. Kim Coco Iwamoto Commissioner, (term 2012-2016) Kim Coco Iwamoto is property manager/owner of Affordable Quality Apartment Rentals (dba AQuA Rentals, LLC). She most recently served the people of Hawai`i as an elected member of the State Board of Education from December 2006 – April 2011. Prior to this, Ms. Iwamoto was Managing Attorney at Volunteer Legal Services Hawaii and a volunteer at Legal Aid Society of Hawaii. Before becoming an attorney, Ms. Iwamoto interned at the Hawai`i Intermediate Court of Appeals, the New Mexico Supreme Court, the San Francisco Human Rights Commission and the Hawai`i Civil Rights Commission. Ms. Iwamoto was born on the island of Kauai and raised on Oahu. She is a graduate of St. Louis High School, received her BA in Creative Writing from San Francisco State University and her Juris Doctorate from University of New Mexico. Wallace T. Fukunaga Commissioner, (term 2012-2016) Wallace Fukunaga is currently the Interim Executive Director of the Counseling and Spiritual Care Center of Hawaii. Prior to this, Rev. Fukunaga was a campus minister and lecturer at UH Manoa and was active in several land, anti-war and civil rights issues. Later Rev. Fukunaga became a legislative liaison for the Honolulu Community Action Program, advocating on behalf of the poor, and was an entrepreneur, serving as President of the self-start corporation, Northshore Resources, Inc., which was named “Small Business of the Year” by WorkHawaii. In 1990 he returned to the ministry and served various congregations on Oahu and Kauai. He also served on the Board of Trustees of Pacific School of Religion, the Board of Governors of the Japanese Cultural Center of Hawaii, and the Boards of Directors of the Japanese American Citizens League and Interfaith Alliance of Hawaii. Rev. Fukunaga was born in Hawaii and graduated from McKinley High School. He received his BA from Harvard University, a Master of Divinity from Princeton Theological Seminary, and a Doctor of Ministry from the Pacific School of Religion.
During FY 2012-2013 the HCRC staff consisted of 25 positions:*
Executive Director Deputy Executive Director Enforcement Attorneys (3) Administrative Assistant – Mediation Coordinator Investigator-Supervisors V (2) Investigator IV (8) Investigator III-IV (temporary) (2) Secretary III Office Assistants (III-IV) (4)
Acting Chief Counsel Secretary II 1 1989 House Journal, Standing Committee Report 372. 2 Id. 3 The Chief Counsel position was frozen in FY 2009, unfunded in FY 2010 and then abolished in the FY 2011 budget. The Commissioners appointed the Hearings Examiner as Acting Chief Counsel, and currently appoints hearings examiners on a case by case basis. 4 Pursuant to HRS § 378-3(10) an employee may file a direct civil action for sexual harassment. Similarly, pursuant to HRS § 515-9(b), an aggrieved person may file a direct civil action for fair housing complaints. While the statutes allow these direct civil actions in these cases, only a small number are filed; the great majority still file complaints with the HCRC. 5 Hawaiʻi residents from COFA nations are often identified as “migrants” rather than “immigrants,” because in immigration law terminology immigrants are lawful permanent residents (LPRs), or “green card” holders; with their status under the COFA, Hawaiʻi residents from these nations are not LPRs. However, based on our experience with COFA communities in Hawaiʻi, we have consciously chosen to refer to these residents as immigrants rather than migrants, because use of the label “migrant” tends to imply a transitory status of people who do not have a stake in the community. Hawaiʻi residents from COFA nations are immigrants in the sense that they are here to stay, with emerging communities that are integral to our broader community and society. 6Analysis and Explanation of Closure DataThis closure data does not reflect the number of completed investigations that result in cause determinations. Generally, the reason for this distinction is that cases are not closed upon issuance of a notice of cause, but are conciliated, and, if conciliation fails, are docketed for hearing. Historically, there is a relationship between the number of cause cases and predetermination settlements/resolutions between parties—the larger the number of notices of cause, the smaller the number of settlements/resolutions, and vice versa. Typically, cause determinations and settlements/resolutions constitute between 15-25% of the total of those cases that are either investigated to a cause/no cause determination or settled or resolved by predetermination settlement or resolution between the parties. During FY 2013, HCRC investigations resulted in 3 cause determinations, and 81 cases were closed on the basis of pre-determination settlement or resolution between parties. 214 cases were closed on the basis of no-cause determinations upon completion of investigation. The ratio of cause determinations and predetermination settlements/resolutions (84) to those cases that are either investigated to a cause/no cause determination or settled or resolved by predetermination settlement or resolution between the parties (295) for this fiscal year is 28.5%. * Staffing levels reflect permanent (22) and temporary (3) positions which were either filled or vacant during FY 2013. |