If you’ve been the victim of age discrimination in California, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

Congress passed the Age Discrimination in Employment Act (ADEA) of 1967 to address the practice of employment discrimination against older workers, and especially to redress the difficulty such workers face in obtaining new employment after being displaced from their jobs. It applies to employers with 20 or more full-time or regular part-time employees for each working day, in each of 20 or more calendar weeks, in either the current or preceding calendar year.

But for most California labor attorneys and CA labor lawyers, the choice of government agencies to contact to file an age discrimination complaint, much less for their clients, is a maze of confusing acronyms. The time limits to file such complaints are also hazardous to both the clients and their California labor lawyers.

The ADEA prohibits discrimination in employment against workers age 40 or older and makes it unlawful for an employer to discharge any individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions or privileges of employment.

The Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC), can and are willing to investigate such matters jointly, though one agency will usually take the lead.

The Supreme Court has made it significantly easier for the elderly client of a California labor attorney to prove age discrimination. Disparate treatment may be proved by circumstantial evidence. Where an employer has already hired significantly younger women to replace a person over 40 that they have fired, this evidence may be persuasive.

Where the employer has obtained any waiver of rights from the fired person, even a valid ADEA waiver does not affect the EEOC’s rights and responsibilities to enforce the law.

With the DFEH, the fired worker need only make an appointment to begin the process. The statute starts to run when the employee files a claim. With the EEOC, once the employee or the employee, with or without the assistance of a California labor lawyer, files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. Any further disparate actions taken against the fired worker after the ex-employee begins the process will be considered retaliatory by both agencies.

The ADEA incorporates the enforcement and remedial provisions of the Fair Labor Standards Act (FLSA). FLSA remedies include awards for backpay, reinstatement or front pay. The amount of front pay may be affected by the lack of availability of employment opportunities open to the fired employee. In addition, the employee may be entitled to an additional amount in liquidated damages upon establishing that the employer’s actions were willful. Indeed such an award is mandatory upon a finding of willfulness.

If the ex-employee is successful in his or her ADEA case, she may also recover attorney fees. Employers who think they can prevail and obtain attorney fees themselves are incorrect, as a California labor attorney might tell them, as that is not the case. The ADEA does not authorize fee awards to a prevailing defendant.

The California Fair Employment and Housing Act also prohibits age discrimination in employment and its remedies are in addition to those with the EEOC. With the FEHA, the fired employee is also be eligible to receive damages for emotional distress as well as punitive damages. The FEHA applies to all employers with five or more employees. And as with the federal rules, discrimination based on age over 40 is prohibited.

Should the employer take any retaliatory actions against the ex-employee for filing a claim with the EEOC, the DFEH, or the Department of Industrial Relations, each agency prohibits such actions and will consider them to be further violations of the law.

So where should a California Labor Lawyer file his or her client’s claim if they have been the victim of age discrimination, harassment or retaliation? And how long do they have to file it?

Age discrimination complaints can be filed with the DFEH, with the EEOC and with the Department of Labor Standards Enforcement (DLSE) but are most commonly filed with the DFEH and the EEOC.

With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.

Government codes section 12965(b) requires that individuals, with or without their California labor attorneys, must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.

Once a “right-to-sue-notice” is received from the DFEH, the employee and his or her California labor lawyer, has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.

Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.

A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.

In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but a complainant does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.

Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.

A much less publicized and less known agency in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

Filing a complaint with the Labor Commissioner does not prevent a person from filing a private lawsuit. While it can be costly to hire a California labor lawyer on an hourly rate to file such a lawsuit, some California labor attorneys will handle the case on contingency.

Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of age discrimination in California.

Having said all of that, it is clearly within the jurisdiction of the EEOC to enforce the Age Discrimination Act of 1967 which protects against discrimination against people who are 40 years or older. The shorter time limits one has to file a complaint with the EEOC, however, causes many to file complaints with the DFEH instead. And for the most part, most people don’t even know about their rights to file complaints with the DLSE.

An advantage of filing with the EEOC, is that some applicants find that they also have a valid complaint under the Equal Pay Act of 1963, the laws of which are also enforced by the EEOC (although California also has an Equal Pay Law). The EEOC also enforces the Americans with Disabilities Act of 1990 as amended in 2008 and the Rehabilitation Act of 1973.

I.BACKGROUND

The federal Family Medical Leave Act (“FMLA”) applies to all private employers who have 50 or more employees for each working day of 20 or more (not necessarily consecutive) calendar workweeks in the current or preceding calendar year.  FMLA requires covered employers to allow eligible employees to take up to 12 weeks of unpaid leave for the birth or adoption of a child, to care for a child, parent, or spouse who suffers from a “serious health condition,” if the employee’s own serious health condition makes them unable to perform one or more essential functions of the job, or for certain qualifying exigencies.  An eligible employee under FMLA has been employed by the employer for 12 months and has worked 1,250 hours during the preceding 12 months.

            Under the Hawaii Family Leave Law (“HFLL”), employers with more than 100 employees (determined in a manner similar to FMLA) must comply with both FMLA and HFLL.  Generally, HFLL does not cover eligible employees that take leave for their own serious health condition, but only leave taken for an employee’s in-laws, grandparents and reciprocal beneficiaries.  HFLL provides only four weeks of leave instead of FMLA’s 12 weeks.  An employee eligible for leave under HFLL need only to have been employed for six months for the covered employer, regardless of the number of hours worked.

II.FMAL REVISIONS ARE EXTENSIVE

            The changes to FMLA effective January 16, 2009, were extensive and designed to reflect revisions, clarifications, and general reorganization of the regulations. 

Generally, Hawaii employers required to comply with both FMLA and HFLL need to use caution when deciding whether to implement federal law in connection with HFLL.  HFLL regulations make clear that HFLL incorporates federal definitions and interpretation of leave law, unless federal law is less favorable to the employee.  Some regulations may be adopted by Hawaii employers, because they would be viewed as a reasonable interpretation of Hawaii law.   Unfortunately, there are many unresolved issues that will need to be addressed by statutory and regulatory amendments.  

III.REVISIONS, CLARIFICATIONS AND IMPACT

            The more significant FMLA revisions include the following:

A.  Eligibility:  The new FMLA regulations state that the 12 months of employment need not be consecutive, but employers need not count a break-in-service of seven years or more in determining whether an employee has been employed for at least 12 months.

Impact on Hawaii Employers:  HFLL regulations explicitly state that the six-month period of employment must be consecutive.  Accordingly, Hawaii employers covered by HFLL are not required to implement the eligibility provision to their HFLL practices.

B.  Incapacitation:  The new regulations state that the employee must be incapacitated for more than three full calendar days and show “continuing treatment” by a health care provider as defined by FMLA in order to be eligible for leave under the “absence plus treatment” definition of “serious health condition.”  In addition, in order to qualify for leave under the “continuing treatment” definition, the employee must have been treated within the first 30 days of incapacity, must also have seen a health care provider within the first seven days of incapacity, and such “visits” to the health care provider must be in person.

Impact on Hawaii Employers:  This clarification will in many cases result in uncertainty whether leave taken by an employee in connection with continuing treatment of a family member is FMLA-protected leave during the first 30 days of incapacity. 

The Hawaii Department of Industrial Relations (“DLIR”) has expressed its intent to follow FMLA regulations with respect to definitions related to the term “serious health condition.”  In the absence of clarification of the term “continuing treatment” under HFLL by DLIR, the new FMLA definition will also likely apply to Hawaii employers required to comply with both FMLA and HFLL.  Also, despite advances in the area of telemedicine on-line consultations, under the new FMLA regulations only in-person visits to health care providers constitutes treatment.

            C.  Pregnancy:  The FMLA regulations now clarify that only a spouse may receive FMLA leave to care for a pregnant woman.  Thus, a boyfriend, fiancé or even the father (if not also a spouse of the expectant mother) of the unborn child is not eligible to take such leave.

            Impact on Hawaii Employers:  Hawaii regulations explicitly state that an employee may care “for the employee’s child, spouse or reciprocal beneficiary, or parent with a serious health condition.” The provision appears consistent with FMLA’s requirement that the father must be the spouse of a pregnant woman in order to qualify for protected leave.  HFLL regulations, however, do permit family leave to be taken where the unmarried mother and father are “reciprocal beneficiaries.”

            D.  Birth of Child:  The FMLA regulations now clarify that both mother and father may take up to 12 weeks of leave to care for a newborn child with a serious health condition even if both are employed by the same employer.  However, they are limited to 12 weeks total for a health newborn.  Also, intermittent leave is permitted under FMLA only as agreed to by both employee and employer.

            Impact on Hawaii Employers:  HFLL regulations permit intermittent leave under all circumstances and four weeks to be taken by both the mother and father.  Since the FMLA regulations directly contradict Hawaii law and the Hawaii DLIR will interpret HFLL in a manner most favorable to the employee, HFLL will likely continue to permit eligible employees to take intermittent leave under all circumstances.

            E.  Intermittent Leave/Reduced Schedule:  The new regulations state that employees must make a “reasonable effort” to schedule treatment so as not to disrupt unduly an employer’s operations.  Also, an employer may transfer an employee where leave is foreseeable based on planned medical treatment.

            Impact on Hawaii Employers:  The revision to FMLA is significant insofar as the “reasonable effort” standard replaced the word “attempt.”  HFLL is silent on the issue.  Therefore, Hawaii employers that are required to comply with HFLL should approach the issue of an employee scheduling treatments cautiously.  This is one of many significant new FMLA regulations that need to be addressed by the Hawaii legislature and/or DLIR.

 As to the new transfer provision, the DOL balked at permitting a transfer where leave is “unforeseeable.”  The DOL viewed such transfers as potentially retaliatory.  HFLL permits the employer to only “offer” modification of an employee’s job and duties and only where the employee requires intermittent leave.  In addition, HFLL explicitly states that an employee must agree to the transfer proposed by the employer.  Finally, the “alternative transfer or modified position” must have “equivalent pay and benefits of the employee’s regular job, even if the employer must increase the pay and benefits.”

            F.  Substitution of Paid Leave:  An employee who elects to use paid leave with covered FMLA leave must now follow the employer’s policy for that paid leave.   However, the employer must have a written policy with respect to the paid leave issue before it can take any action related to the employee’s failure to follow such policy.

Accordingly, under the new FMLA regulations an employer may require an employee to take a full vacation day under its written vacation policy to the extent all employees are treated consistently, even though the employee wishes to use paid vacation time for two hours of treatment.

            Impact on Hawaii Employers:    HFLL is currently silent on the issue and it is uncertain whether the Hawaii DLIR will adopt the same position as FMLA.  Employers covered by both HFLL should of course use caution in applying the new provision to HFLL leave.   Hawaii employers should note that HFLL expressly permits employees’ use of paid sick leave, up to ten days per year, to the extent paid sick leave is offered as a benefit by the employer. 

            G.  Rights and Responsibilities:  There are significant changes to the substantive content and timing of notices required by FMLA and the new regulations added an entirely new third form called a “Designation Notice.”  Discussion of the content of each of the three notices/forms is beyond the scope of this article.  Nevertheless, it is critical that employers covered by FMLA immediately print the forms from the DOL’s website and incorporate them into their FMLA policies, procedures and employee handbook. 

            Impact on Hawaii Employers:  It is unclear the extent to which DLIR will adopt, either formally or informally, the FMLA forms or form-related regulations regarding the timing and content of notices.  This is an area that will be difficult for Hawaii employers with 100 or more employees to navigate given the current lack of guidance in HFLL regulations.  Unfortunately, there is no indication that DLIR intends to update HFLL regulations in the near future.

            This should be an area of great concern for employers covered by both FMLA and HFLL.  For example, the new FMLA regulations state that an employer may require notice of the need for unforeseeable leave “as soon as practicable.”  HFLL currently requires an employee to give “at least verbal notice to the employer within two working days,” a significant difference which will make it difficult for Hawaii employers with over 100 employees to navigate between the two sets of laws.

            Both FMLA and HFLL permit a covered employer to require certification of the serious health condition at issue.  However, FMLA now requires the employer to provide a Notice of Eligibility and Rights within five business days after receiving notice of the need for protected leave, and a Certification of Health Care Provider. 

Under the new regulations the employee requesting family leave must return the Certification of Health Care Provider (there are now separate forms for the employee and family member) within 15 calendar days after receiving it.  On the other hand, HFLL regulations state that an employee may be required to return a completed certification within two days after commencement of leave. 

            H.  Employee’s Failure to Provide Notice:  One of the more controversial new FMLA provisions states that an employer may now delay or even deny covered leave for an employee’s failure to provide notice consistent with the employer’s written notice rule or procedure.

Under the new FMLA regulations, in theory the employer is permitted to better plan for staffing and operational needs by requiring an employee eligible for protected leave to comply with notice procedures.  Employees will be encouraged to comply with notice requirements knowing that the failure to do so could result in denial of protected leave.

            Impact on Hawaii Employers:    Hawaii law contradicts the new FMLA provision insofar as employers under HFLL are permitted to only “delay” and not deny covered leave for noncompliance.  Thus, Hawaii employers cannot “deny” HFLL leave under these circumstances.

I.  Certification Contents:  Under FMLA, the covered employer has unprecedented rights to obtain medical information related to the leave request.  For example, the employer may now request the diagnosis of the medical condition requiring protected leave.

Impact on Hawaii Employers:  Under HFLL the employer is prohibited from seeking the type of information employers under FMLA are now permitted to obtain.  While the employee seeking protected leave to care for a spouse, for example, arguably waives rights to maintain the medical diagnosis private under the new FMLA regulations, the fact is Hawaii law still limits to a large degree the information the employer is entitled to receive.  Under HFLL, there is no explicit right for the employer to know the diagnosis of the serious health condition of a covered employee’s spouse when such employee requests leave under HFLL.

J.  Incomplete Certification:  Under the new FMLA regulations an employer may deny or delay protected leave where the employee fails to provide a complete certification after the employer gives written notice that the initial certification was incomplete or insufficient.  

            Impact on Hawaii Employers:  As stated previously, under HFLL an employer may only “delay” giving protected leave for an employee’s failure to comply with notice requirements.  In addition, for incomplete and insufficient certifications, an employer must “provide the employee a reasonable opportunity to remedy such deficiency.”

            K.  Bonuses:  The new FMLA regulations allow for the denial of a “perfect attendance” bonus/award to employees who take leave under FMLA.

Impact on Hawaii Employers:  HFLL regulations do not allow this.  Thus, unless and until HFLL regulations are amended or clarified, Hawaii employers covered by both HFLL and FMLA should use caution in denying perfect attendance and other awards to employees who take leave under HFLL.

IV.CONCLUSION

While DLIR regulations state that its regulations and interpretation of law applies where a specific state regulation provides more protection to the employee than federal law, there is still a great deal of uncertainty how FMLA regulations are to be interpreted vis a vis HFLL given the relative dearth of guidance in the DLIR’s own regulations.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

 INTRODUCTION:

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide.  The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.  

Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.

 FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin.  Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions.  Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.  Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA.  Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA.  Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.

In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer.  Specifically, the caps are set by statute as follows:

Number of Employees            Cap

015-100 employees                $ 050,000

101-200 employees                $ 100,000

201-500 employees                $ 200,000

500 plus employees                $ 300,000

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.”  Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.” 

There are significant differences between PDA and Hawaii law.  First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures. 

Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law.  Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.

Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more.  Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.”  A “reasonable period of time” is that time determined by the employee’s health care provider.

Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges.  Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.

Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.   

 CONCLUSION:

            PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth.   Under federal law employers must remember to treat pregnant employees the same as similarly situated employees.  However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.  

Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise.  Many of these claims arise from employers promulgating English-Only policies.  In the EEOC’s view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often.  In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination.  Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful.  Their position also is that limited English-Only policies are lawful only if justified by business necessity.  2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy: 

Employers with English-Only rules should also consider doing the following:

Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com