A burial services company says employers should have the right to have a discrimination claim against them heard by a jury, instead of an administrative agency.
State high court hears
arguments in bias case
The court will rule on whether
employers can opt for a jury trial
By Debra Barayuga
The Hawaii Civil Rights Commission, which adjudicates discrimination claims or issues "right to sue" letters for complainants to take their claims to court, disagrees.
The Hawaii Supreme Court heard oral arguments on the issue this week and is expected to rule at a later date.
In dispute is the "right to sue" provision of the state statute that gives employees, but not employers, the option to have their claims heard before a jury.
Circuit Judge Dan Kochi ruled in favor of SCI Management Corp. in July 2001, saying that the statute (HRS 368-12) deprives employers of equal protection with the right to a jury trial and is therefore unconstitutional.
Carl Varady, the commission's attorney, asked the high court to reverse the ruling, contending that employers do not have a right to a jury trial when public rights -- the right to be free from discrimination -- are sent to an administrative agency for adjudication.
Currently, employees with discrimination claims must first go through the Hawaii Civil Rights Commission to obtain the right to sue in Circuit Court.
If the commission finds there is merit to the claim, the employee can go through the commission's administrative process or file a civil lawsuit and demand a jury trial. If the employee chooses to go through the commission, the employer cannot opt out of the process and ask for a jury trial.
Jeff Portnoy, attorney for SCI, which operates several mortuaries and cemeteries in Hawaii, argues every citizen -- whether an employee or not -- should have the right to a jury trial.
The underlying case involved two women, Tammy Quinata and Darryllynne Sims, who filed sexual discrimination and retaliation claims against their employer, SCI.
The women chose to have their claims handled by the commission. After its investigation, the commission recommended in June 2000 that SCI pay Quinata and Sims $400,000 each. SCI refused, and the case was set for an administrative hearing before the commission.
SCI requested a jury trial and then turned to Circuit Court, asking a judge to declare the statute unconstitutional.
"We just want our client, regardless of the outcome, to have a fair shake before a jury when it comes to those damages," Portnoy said.
In housing discrimination claims, both claimants and respondents have equal rights to have their claims removed from the administrative proceeding and go to court, so why not in this case, Portnoy said.
Varady argued that if employers opt out of the administrative process in favor of the courts as they usually do in housing claims, the commission's ability to provide an inexpensive and effective legal forum for discrimination claims will be undermined. There will be employees suffering severe discrimination who will not do anything about it because they cannot afford a lawyer, he said.
"The commission's enforcement role really is significantly diminished," Varady said. "The employers are back in the saddle."
Portnoy argued that giving employers the same right to opt out of the commission's process does not eliminate the ability of the commission to do its work and does not leave employees without remedies.
"Employees will still have every remedy they have now, including to opt out," Portnoy said. The commission will still have the power to investigate, mediate and settle discrimination claims, he said.
Hawaii Civil Rights Commission
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