Employers seek harassment rule change
Critics say a proposal would make it harder for Hawaii workers to hold companies liable
Employees subjected to sexual harassment by supervisors could be discouraged from complaining if proposed changes to state rules are approved by the Hawaii Civil Rights Commission, employee advocates and attorneys said.
The Hawaii Employers Council, made up of nearly 800 companies, is asking the state to change rules governing employment discrimination, including sexual and ancestral harassment. They say the changes are being proposed to fall in line with federal requirements.
But a former civil rights commissioner said the proposed rules will place workers at a disadvantage by forcing them to first report sexual harassment to the employer.
"In Hawaii where there is such a small community in a small area, many employees are afraid of retaliation if they complain of sexual or ancestry or race harassment," former Civil Rights Commissioner and attorney Daphne Barbee said in written testimony.
"Changing the present Hawaii Administrative Rules to disallow strict liability for harassment is a step backwards and not forward," she concluded.
If the changes are approved, a worker who suffers sexual harassment would be required to notify the employer first, before seeking further redress with the Civil Rights Commission.
A second proposed change would give companies an edge to avoid liability, critics said. If a company already has a policy in place to deal with sexual harassment -- including awareness training -- an employee might have a harder time proving liability against the company, they said.
The Civil Rights Commission heard testimony Friday and is expected to vote on the proposals on Oct. 18.
Proponents, including Nelson Befitel, director of the Labor and Industrial Relations Board, say the proposed changes will bring the rules in line with recent new guidelines issued by the federal Equal Employment Opportunity Commission to adopt a negligence standard after two U.S. Supreme Court decisions.
Hawaii Employers Council attorney Clayton Kamida said the rules related to liability for supervisors are unusually harsh and that Hawaii is one of only five states holding employers strictly liable for sexual harassment in the workplace.
He said there is a "sense of unfairness on the part of the employer. You do everything right, you're still going to get hit with liability."
Kamida said it is unreasonable for employees whose employers have a good complaint procedure not to come forward. Even if the rule changes are approved, it is still reasonable for an employee to take a complaint directly to the Civil Rights Commission if the employer does not have a working policy in place, Kamida said.
But it will not be that simple, attorney David Simons said.
"Bottom line is, you're going to eliminate the protection for most women," Simons said.
Now, employers know if they do not properly train supervisors, they could be held liable for sexual harassment, he said, and the new rules could relax a company's policies on sexual harassment.