Changes in harassment rules tip balance toward employers

THE ISSUE The Hawaii Civil Rights Commission is considering changes on sexual and ethnic harassment complaints.

RULE changes that would buffer employers from strict liability in sexual and ethnic harassment cases should not also block employees from pursing multiple ways of seeking remedies.

A current proposal by the Hawaii Civil Rights Commission would bar workers from filing complaints with their unions, federal authorities and the commission itself before they file a complaint with their employers.

The restriction is unreasonable. It places employees at the mercy of their bosses and eliminates incentives for businesses and companies to correct harassment quickly. Moreover, the proposal could jeopardize a worker's position further by having to file a complaint with the perpetrator, a likelihood at smaller businesses.

In easing employers' liability, the commission should revise other proposed changes involving how it will determine that employers used "reasonable care" to deter harassment.

The changes include a menu of preventive factors the panel will look at, including written policies on what constitutes harassment and unacceptable conduct, notifying workers and supervisors about them and ensuring that non-English speakers are informed, setting procedures to file complaints and providing training.

However, in corrective action, similar factors seem reduced to just one or the other and would not have to encompass a way for workers to file a complaint with officials other than those who they believe are harassing them. All of the factors should be required to avoid repeated problems.

In addition, corrective action should have deadlines defined more clearly than "prompt." Workers should not be subjected to prolonged investigations by an employer.

In a recent case involving a garage manager at the Hale Koa Hotel, three of five women whose complaints about harassment to various hotel officials went unheeded for months left their jobs, unable to endure the disturbing behavior. Their complaints have been filed with the Equal Employment Opportunity Commission at the hotel, but remedy is still months away since the agency has 180 days to make a decision. That the manager himself was at one time an equal employment opportunity counselor at the hotel added to the women's discomfort.

The Hawaii Employers Council, made up of 800 companies, say changes the Hawaii commission is considering would stop disgruntled employees from making harassment claims by cutting businesses' liability, but the rule changes transfer responsibility to their supervisors, who remain liable as individuals.

The proposals tip the balance in harassment complaints to favor employers. Though most good businesses do not condone harassment, the ones that do could take advantage of the imbalance. Also, the rule that prohibits reports of harassment to unions before an employer is given a chance to act could face legal challenges since it appears to circumvent bargaining contracts.

The proposals, which the commission will vote on Friday, have been in refinement for a year, but the panel in fairness should review them again.