Harassment liability changes considered

The rules would place more of the burden of proof on employees

STORY SUMMARY »

State rules that have governed employer liability for harassment based on sex and ethnicity for the last 25 years may soon be altered.

The Hawaii Civil Rights Commission fielded testimony on the changes in a public hearing held yesterday.

Under the proposed cha-nges, employers would no longer be held strictly liable when their supervisors harass an employee.

Current rules do hold them liable, even if they were not aware of the harassment and had policies prohibiting it.

Proponents of the changes, which include the Hawaii Employers Council, say they will bring Hawaii rules more in line with existing federal guidelines.

But opponents say that because the new rules require an employee to file a complaint with their employer first, before going to an outside agency, they could expose victims to retaliation.

The commission is expected to vote on the rule changes Friday.

The Hawaii Civil Rights Commission yesterday held a public hearing on a revised set of rule changes that could relieve employers of strict liability for harassment based on sex and national origin.

If adopted, they would alter rules that have been in effect for 25 years.

Under current rules, employers are held liable for all actions committed by their supervisors, regardless of whether they had authorized or were aware of the harassment -- even if they had policies in place prohibiting such activity.

The new rules would eliminate that liability, and place more of the burden of proof on employees by requiring them to go through their company's grievance procedure first, before going to an outside agency.

The proposed changes were initially put forth by the Hawaii Employers Council last year, but were postponed to refine the rules more clearly for a second public hearing held yesterday.

Proponents of the changes, including the HEC and Society for Human Resources Management, say it would align Hawaii's laws with existing federal laws.

But opponents, including many attorneys' groups and women's groups, say the changes would weaken protections for employees and be a step backward.

Elizabeth Jubin Fujiwara, an attorney specializing in sexual harassment who was testifying on behalf of the Hawaii State Democratic Women's Caucus, said if female employees were forced to go through a company's grievance procedure, many would not do it for fear of retaliation.

The worse-case scenario, she said, would be that an employee be forced to make a complaint to a perpetrator who is his or her supervisor.

She cited the recent allegations of sexual harassment by an ex-EEO counselor at the Hale Koa Hotel as an example.

"It would have a chilling effect," she said.

Ronald Albu, an attorney with of Albu & Albu, said he found most companies that get in trouble fail to make their employees aware of the policies, or to train their managers and supervisors properly.

Albu successfully won a $510,000 settlement in May on behalf of a female flight attendant from Hawaiian Airlines for failing to take her complaint of sexual harassment by a pilot seriously.

"Most women try to avoid the harasser, and hope it will go away," said Albu. "It's a frightening prospect to file a charge against the supervisor, when it becomes a 'He said, she said.' The problem is that most supervisors are very powerful people, and many times people being harassed are afraid of them if it's their word against the supervisor's."

When discrimination problems arise in the workplace, he said managers and supervisors often do not know what to do or how to handle complaints, and victims of harassment suffer from neglect as a result.

"It is when these problems are not swiftly and properly dealt with that the real problems arise and lawyers come into the picture," he said.

He said it is no different from when a supervisor crashes a company truck, or improperly disposes of toxic materials. The company is held liable for that supervisor's actions, and the same standards should also apply for sexual and ancestry harassment.

The HEC, however, in its letter to members, said the current rules encourage false claims of harassment.

"Because employers may be liable for supervisor harassment regardless of whether the alleged victim ever complains, disgruntled employees may file charges of harassment describing conduct which allegedly occurred months or even years prior to the filing of their charge," said the HEC in its statement.

The HEC employees should make a complaint with their employers first, because they are in the best position to investigate and remedy the unlawful harassment.

The HEC says, following a precedent set by federal courts, there are parameters in which an employer should be able to avoid liability.

For instance, if an employer has defined and prohibited sexual and ancestral harassment in written policies, distributed it to employees and set up a complaint procedure, as well as provided training, then it should be freed from liability.

The Civil Rights Commission is expected to vote on the proposals Friday.