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Kokua Line

By June Watanabe

Sunday, November 17, 2002


Isle Civil Rights
Commission tries to
avert costly litigation


Question: Regarding the Hawaii Civil Rights Commission: they have one director, one assistant, one supervisor and one investigator. The investigator is really just a clerk -- not by a court or legal entity. A person who complains does not have any rights. The other person, whatever they say, whether it is a lie, truth or slander or whatever, the complainant cannot see what the response is. They cannot defend themselves against what is said. Why doesn't a complainant have any rights?

Answer: The Hawaii Civil Rights Commission was created by the state Legislature as a no-cost administrative alternative to potentially costly litigation in seeking a legal remedy for discrimination.

However, the intent also was to prevent the courts from being overburdened with discrimination cases that have no merit or that can be closed administratively. Thus, the law requires a discrimination complaint to be filed first with the commission before a lawsuit can be filed in state court.

If the commission dismisses a complaint, a complainant has 90 days in which to pursue the case via a lawsuit.

It is not true that a clerk investigates cases, said William Hoshijo, the commission's executive director. In addition to himself and a deputy executive director, he said there are two investigator supervisors and 10 full-time investigators. Divided into separate enforcement and adjudication sections, the 11-year-old commission handles an average of about 600 cases a year.

A clerk may answer questions about a status of a complaint, but they are not involved in investigations, Hoshijo said.

He also said that complainants are given a chance to rebut a response from the accused, but are not, as a matter of course, allowed to look at the actual evidence submitted.

The commission is said to be structured "to ensure fairness to both complainants and respondents." Here's a simplified version of the complaint process:

Complainants are first asked to fill out a questionnaire and have an "intake interview." At this stage, the commission is trying to determine whether it has jurisdiction -- it only handles discrimination cases pertaining to employment, housing, public accommodations (including restaurants) and access to state and state-funded services -- and is gathering facts.

If the complaint is accepted for investigation, the complaint is then "served on the respondent," Hoshijo said.

By law, the accused is required to respond. Depending on the charge, the response and the evidence submitted, there could be further investigation.

The complainant is offered an opportunity to rebut the response, but state law says all materials in an investigation file are confidential. However, there are three exceptions to this "statutory confidentiality," Hoshijo said.

During the right-to-sue period after a complaint is dismissed, a complainant may obtain a copy of the evidence obtained by the commission and then "make an informed decision" as to whether to pursue a lawsuit, he said.

A second exception is when the respondent is sued and the third is when a court orders the files be opened.

Based on the investigator's report, the executive director will determine whether a complaint should be dismissed as having "no cause" or whether it will be assigned to an enforcement attorney for conciliation or settlement.

In the case of dismissal, a complainant has 30 days in which to request, in writing, for a reconsideration. Reconsideration does not extend the 90-day right-to-sue period.

Meanwhile, the commission is in its third year of its voluntary mediation program, working with the nonprofit Mediation Centers of Hawaii to resolve complaints.

According to the commission's annual report, 58 percent of all cases referred to mediation were successfully resolved. Even when mediation didn't lead to an agreement, issues were clarified, leading eventually to settlements.

In general, "in terms of remedies, the remedies are the same, whether (a complainant) goes to us or directly to court," Hoshijo said.

That means seeking, for example, lost wages, compensatory damage or punitive damage.

The commission also can, via the complaint, effect a change in policy or "put an end to the discriminatory practice," he said.

Q: My octogenarian husband served in the Navy during World War II. Does this qualify him to shop at the new Pearl Harbor commissary? If so, how does he obtain the necessary IDs?

A: Being a former member of the military does not automatically give a person such privileges.

Commissary shopping privileges are normally limited to active duty and retired service members and their families as part of a member's benefits package, said Agnes Tauyan, spokeswoman for Navy Region Hawaii.

For questions on benefits, veterans may call the Veterans Administration Benefits Line, at 433-1000, or visit the Veterans Benefits Administration Web site at www.vba.va.gov.

Tauyan said you can call 471-8402 for more information about the Pearl Harbor Commissary. Alternatively, you can check the Defense Commissary Agency (DECA) Web site at www.commissaries.com.


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