Judge strikes down
a provision in state
civil rights law

A circuit judge rules the
provision was unfair to employers

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Star-Bulletin staff

A statute that gives employees the right to sue their employer through the Hawaii Civil Rights Commission or through the courts, but denies the employer the same right, is unconstitutional, a state judge has ruled.

Circuit Judge Dan Kochi this week agreed with attorneys for a burial services company that the disparity violates the employer's right to a jury trial and equal protection under the law.

Attorney Jeff Portnoy, who successfully argued the provision's unconstitutionality, says the ruling has "enormous impact."

He said it changes the way employment discrimination cases will be handled in the future.

"It equals the playing field," he said.

"Now we have the right to have a jury decide the facts, not the administrative hearings officer whose decision goes to the commission."

The ruling also prohibits the commission from going forward with sexual harassment complaints by two former and current employees of SCI, which operates several mortuaries and cemeteries here.

Attorney Al Lynde, administrative assistant to the commission, said they believe the ruling was erroneous and that the commission intends to appeal it before the Hawaii Supreme Court.

"If this is upheld, we will be hamstrung," he said.

The decision would create a great hardship on complainants, most of whom are employees bringing complaints against their employers, he said.

He said the framework under which the commission was established took into account the substantial legal and financial resources large companies have against their employees.