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EMPLOYMENT LAW Fundamentals FOR HAWAII EMPLOYERS: Â ILLINOIS RULING HIGHLIGHTS THE Significance OF POLICIES AND Training TO HAWAII EMPLOYERSÂ Â

EMPLOYMENT LAW Fundamentals FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE Importance OF POLICIES AND Training TO HAWAII EMPLOYERS   It's properly established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with "immediate (or successively greater) authority over the employee."  However, in situations where the employee doesn't suffer a "tangible employment action," such as discharge, demotion, or an unfavorable reassignment, there's an affirmative defense that an employer may possibly raise to stay away from Title VII liability and damages.   Under such affirmative defense regardless of whether an employer has an anti-harassment policy is relevant evidence.  Also essential is efficient supervisory training and coaching of staff on the harassment policy and complaint process. Training and educational programs for all staff take on an even greater degree of significance under Hawaii state law, HRS Chapter 378.  State law presently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.  Even though the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court selection upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s--that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant. The April 16, 2009 Illinois decision will surely be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is essential that Hawaii employers realize the significance of having an useful policy and company-wide training plan on not simply a defense to a sexual harassment claim, but prevention. I.          The Significance of Having an Effective Harassment Policy A.                The Faragher/Ellerth Defense Having an efficient sexual harassment policy and training plan will significantly increase the opportunity of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”).  Where alleged harassment by a supervisor will not culminate in an adverse (“tangible”) employment decision, the employer may steer clear of liability by showing that: (1) the employer exercised reasonable care to avoid and promptly right any harassing behavior; and (two) the plaintiff unreasonably failed to benefit from any preventive or corrective opportunities supplied by the employer to steer clear of harm.  "A tangible employment action constitutes a significant change in employment status like hiring, firing, failing to promote, reassignment with significantly various responsibilities or a decision causing a substantial alter in rewards."  Ellerth, supra. The significance of the Faragher/Ellerth defense was substantially increased by the U.S. Supreme Court's selection in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is obtainable in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, like a demotion or perhaps a cut in pay. A zero-tolerance harassment policy ought to fit the environment and workers.  The Ellerth court stated: Whilst proof that an employer had promulgated an antiharassment policy with complaint process is not necessary in every single instance as a matter of law, the want for a stated policy appropriate towards the employment circumstances might appropriately be addressed in any case when litigating the very first element of the defense.  The policy must be written in plain English, so that all employees regardless of their educational level or background can understand it ... [a] policy must include a clear and precise definition of unlawful harassment so that staff know what kind of conduct is prohibited by the policy and will be in a position to recognize that conduct ought to it occur. Accordingly, if the alleged harasser has supervisory authority over the victim, the employer is going to be held automatically liable for any harassment committed by the supervisor unless the employer is in a position to successfully raise the affirmative defense.  B.        Ideas On Drafting a Zero-Tolerance Policy and Complaint Process.  (1)               Write in easy English. (2)               Consist of a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment. (three)               State the company’s "zero-tolerance" philosophy inside the policy concerning all forms of harassment, (4)               Designate no less than two specially trained managers who will likely be responsible for investigating harassment complaints for the company.  (five)               Establish the complaint process that may be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.  (6)               Provide a "clear chain of communication," permitting staff to step outside of the regular hierarchy inside the event the supervisor is the harasser and take into account having a toll-free number staff can call. (7)               State that employees who report prohibited conduct will probably be protected from retaliation. (8)               State that the employer will promptly investigate the matter in an objective and discrete manner. (9)               Give the form of disciplinary action to which offenders can anticipate to be subjected. (10)           State that the employer will also take remedial action. (11)           Train your management employees and line personnel on the policy and procedure.  (12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and process, and that they've received coaching on the harassment policy. 

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C.        The Faragher/Ellerth Defense and Hawaii Law Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against people in virtually all elements of employment.  Nevertheless, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.  Presently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of no matter whether tangible action is taken: §12-46-109 Sexual harassment. (a)        Harassment on the basis of sex is really a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, along with other verbal or physical conduct or visual types of harassment of a sexual nature constitute sexual harassment when: (1)        Submission to that conduct is created either explicitly or implicitly a term or condition of an individual's employment; or (2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or (three)        That conduct has the purpose or effect of unreasonably interfering with an individual's function performance or making an intimidating, hostile, or offensive operating environment. (b)        In determining no matter whether alleged conduct constitutes sexual harassment, the commission will look at the record as a complete and in the totality of the circumstances, like the nature of the sexual advances and also the context in which the alleged incidents occurred. The determination of the legality of a certain action will likely be made from the facts, on a case by case basis. (c)        An employer shall be responsible for its acts and those of its agents and supervisory workers with respect to sexual harassment regardless of whether the certain acts complained of had been authorized or even forbidden, and regardless of no matter whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship as well as the job functions performed by the individual in determining whether or not an individual acted in either a supervisory or agency capacity. (d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment within the workplace where the employer or its agents or supervisory employees knows or must have recognized of the conduct and fails to take immediate and suitable corrective action. An employee who has been sexually harassed on the job by a co-worker must inform the employer, its agent, or supervisory employee of the harassment; nonetheless, an employee's failure to give such notice might not be an affirmative defense. D.        Dilemma Locations for Employers * Inadequate complaint procedure * Failure to disseminate policy * Employer on notice of harassment  * Failure to promptly investigate  * Failure to take proper disciplinary action  * Failure to apply it even-handedly  * Failure to evaluation and revise when needed  * Failure to offer training E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law? In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378. The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a normal of liability which appears to be with no precedent in any jurisdiction of the United States.” In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act simply because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court. The Illinois Supreme Court reversed and confirmed the Commission’s selection. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the choice was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory workers only if the employer becomes conscious of the conduct and fails to take reasonable corrective measures.” In accordance with the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability regular.  As such, the Court located “[t]here is no language within the Act that limits the employer’s liability according to the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law really should apply to the case. II.        The Significance of Conducting EEO Coaching Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it really is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.  Nevertheless, the HCRC is charged using the interpretation and enforcement of HRS Chapter 378 and it will not bode properly for Hawaii employers that one more state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees frequently on preventing discrimination and harassment inside the workplace.  Training ought to include the consequences of violating business policy. Coaching staff reduces the likelihood that inappropriate conduct will likely be engaged in or tolerated at a level that will produce a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment). Second, in the event that inappropriate conduct takes place, staff who are offended is going to be substantially far more most likely to use the employer's complaint procedure, thereby permitting the employer to remedy the scenario and steer clear of having a lawsuit filed against it. Lastly, training can be a tool for prevention and decreasing the possible of supervisory harassment. A.        Coaching as a Tool for Prevention The EEOC's Policy Guidance on Sexual Harassment states: An employer ought to make certain that its supervisors and managers comprehend their responsibilities under the organization's anti-harassment policy and complaint process. Periodic training of those people can assist accomplish that result.  Such training ought to clarify the kinds of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they discover of alleged harassment; along with the prohibition against retaliation. The HCRC regulations state that “prevention will be the greatest tool for the elimination of sexual harassment.  Employers really should affirmatively raise the topic, express powerful disapproval, create proper sanctions, inform personnel of their right to raise and how you can raise the concern of sexual harassment, and take any other steps needed to stop sexual harassment from occurring.”  §12-46-109(g). As component of its settlements against employers, the EEOC and HCRC have chosen mandatory coaching as 1 of its main responses via the use of consent decrees requiring organizations to conduct coaching and ensure policy compliance. In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more personnel to conduct compulsory sexual harassment coaching for all of its supervisory staff by January of 2006, therefore supporting the EEOC and HCRC’s position that training and education will be the greatest tool for prevention.  Under the California law, the training need to re-occur each and every two years, and all new supervisors brought in soon after the original round of training should go by way of the plan inside six months of their arrival.  Managers who are aware of the implications of sexual harassment could be less likely to take official action they realize will create vicarious liability for the organization - this may possibly preserve the employer's proper towards the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of the best way to proceed with complaints from workers about harassment are much more likely to intervene with an appropriate employer response thus creating a stronger showing under the very first prong of the Faragher/Ellerth affirmative defense. Finally, as noted all through this article training can be an effective tool to combat inappropriate behavior by supervisors and to lessen risks under state law—especially to the extent it is interpreted similar towards the Illinois Supreme Court’s selection. B.                 Training as well as the Faragher/Ellerth Defense Conducting coaching will tremendously enhance the opportunity of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was substantially increased by the Suders selection, which held that the defense is available in constructive discharge instances unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, like a demotion or a cut in pay. The coaching of rank and file personnel needs to be documented and if it's to be conducted on a normal basis, can contain a certification by the employee that he or she has not been topic to any policy violations because the final coaching. C.        Training and Damages Troubles Under Hawaii Law Typically, people cannot be located liable for violations under federal law.  Under Hawaii law, nevertheless, courts may award unlimited punitive and compensatory damages.  Considerably, unlike under Title VII people might be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (generating it unlawful for any “person” to “aid, abet, incite, compel, or coerce the performing of any of the discriminatory practices forbidden by this part, or to try to do so.”); Schefke v. Dependable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals could be discovered liable under Hawai’i Employment Practices law). Therefore, coaching staff may possibly alert them towards the monetary risks they take when they engage in behaviors prohibited by Hawaii law. D.        Training to Lessen Exposure to Punitive Damages In Kolstad v. American Dental Association, the Court held that "in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment choices of managerial agents where these decisions are contrary towards the employer's 'good-faith efforts to comply with Title VII.'"  Accordingly, compliance efforts are each needed and adequate to stay away from liability for punitive damages. Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com            

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