It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision 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 certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance 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 does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

]]>

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, 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 whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made 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

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will 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 employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of 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 and the job functions performed by the individual in determining whether 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 in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide 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 standard of liability which appears to be without 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 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 decision. 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 decision 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 employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

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 is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another 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 regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create 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, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can 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) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce 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 decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS is a post from: Hawaii Videos

If you would like to travel to Hawaii, there is a good chance that you have a reason for wanting to do so. For example, would you like to take in the beauty and great history that Hawaii has to offer? Would you like to learn how to surf or participate in another one of the many popular Hawaii activities? If so, you should know the importance of making a connection between Hawaii activities and Hawaii vacation rentals.

One of the biggest reasons why a connection should be made between Hawaii activities and Hawaii vacation rentals is because doing so can help you truly have the vacation of your dreams. For example, choosing a vacation rental that is conveniently located near what you want to do and see can save you both a considerable amount of time and money. Money is saved due the elimination of unnecessary travel. Time is saved by eliminating that travel, but you also have more time to enjoy yourself on your next Hawaii vacation.

Since we all have different reasons for wanting to take a trip to Hawaii, you will want to closely examine your reasons. Learning how to surf was an example sited above. Hawaii is known for is pristine surfing conditions. If you don’t already know how to surf, you will need to take lessons. While you do have an unlimited number of options, you may want to take the time to find those that are affordable and come highly rated and recommended. Doing the proper research first enables you to, in turn, find a conveniently located Hawaii vacation rental.

In keeping with examining what you want to do and see, while on a Hawaii trip, it is important to remember that you do have an unlimited number of options. In addition to surfing or learning how to surf, there is so much more for you to do and see. Additional beach activities that come highly rated and recommended include boating, fishing, snorkeling, scuba diving, and windsurfing. Even if you want to stay on land, you may be surprised with all that you can do and see, including dinning, dancing, shopping, hiking, taking guide tours, and so forth.

Since being spontaneous is a nice part of taking a vacation, especially with Hawaii, you may not want to plan every minute of your vacation. With that being said, it is still a good idea to examine what you could do or see, especially where Hawaii attractions are concerned. If you have yet to make your Hawaii vacation rental reservations, this can enable you to find a rental that is conveniently located, thus reducing your travel time and expenses. Researching nearby attractions is easy. In fact, in just a few minutes you can learn that while on Maui you can visit the Haleakala Crater, see the famous Iao Needle, or take a drive along the scenic route of the Hana Highway, which is filled with waterfalls and much more!

As highlighted above, it is important to make a connection between Hawaii activities and Hawaii vacation rentals. This is best done before you make your Hawaii travel arrangements. With that being said, your intended Hawaii activities and the Hawaii attractions that you would like to visit are not the only points that should be taken into consideration. Cost, availability, features, rules, and restrictions are all important components of choosing and booking a stay at a Hawaii vacation rental.

When examining available Hawaii vacation rentals online, do business with a reputable travel website, such as HawaiianBeachRentals.com. They have detailed information on all rentals, including features, full costs, and rules and restrictions. Perhaps, the greatest feature is that of approximate map locations. Knowing exactly where each Hawaii vacation rental is located can give you a better idea concerning convenience.

Hawaii Vacation Rentals And Hawaii Activities: The Importance Of Making A Connection is a post from: Hawaii Videos

Hawaii trips are rapidly increasing in popularity. A large number of individuals are traveling to Hawaii for romantic getaways, honeymoons, family vacations, as well as sightseeing vacations. If you are looking to vacation in a destination that is beautiful, has perfect weather, and is filled with fun activities, you will want to examine Hawaii.

As previously stated, Hawaii trips are increasing in popularity. One of the many reasons for that is because of all that you can do and see in Hawaii. As you likely already know, you have a number of Hawaiian Islands to choose from. Although all are worth visiting, popular Hawaii vacation destinations include Big Island, Maui, and Oahu. In addition to an unlimited number of beaches, you may enjoy visiting a few of the many parks, historical sites, fine dining restaurants, and shopping centers.

As for popular Hawaii activities, you will find that it all depends on where you are vacationing. If you decide to vacation along the coast, you may enjoy access to a large number of beach activities. These activities include boating, fishing, surfing, snorkeling, scuba diving, windsurfing, and swimming. You may also enjoy hiking or taking Hawaii helicopter tours. No matter where you travel to in Hawaii or when, you will never find yourself faced with boredom.

As for Hawaii overnight accommodations, you will find that you have a number of different options. These options include hotels, vacation resorts, villas, condos, apartment rentals, and homes. If you are looking for a comfortable home-like feel, as well as privacy, you may want to take the time to examine Hawaii vacation rentals. These vacation rentals include condos, villas, apartments, and homes.

If it isn’t already difficult enough choosing between Hawaii condos, Hawaii vacation homes, apartment rentals, and villas, you will find that you have an unlimited number of options, in terms of which rental you want to book a stay at. When examining all of your options, you may want to visit a Hawaii travel website. These are websites that allow you book your Hawaii trips online, but they are also ones that specialize solely in Hawaii trips.

When examining available vacation rentals, including Hawaii vacation homes, it is important that you examine location, cost, size, and features. Location is important, as it will help you find a rental that is conveniently located near what you want to do and see. Size is important, as you will want to ensure that you and your traveling party are able to comfortably fit in your Hawaii vacation rental. Cost is important, as you do not want to overpay for a vacation rental. Booking a stay at an affordably priced vacation rental will enable you to spend more money on your Hawaii activities.

While cost, features, location, and size are all points that you will want to take into consideration, there is one thing that you will not want to overlook. That is Hawaii vacation rental pictures. Most reputable vacation owners and travel websites will provide you with pictures of all vacation rentals. In fact, you should be able to see at least three vacation rental pictures. These pictures are important, as you should never make reservations for a rental that you have yet to see for your own eyes, even just in pictures.

As nice as it is to hear that you should examine Hawaii vacation rental pictures, you may be wondering what the importance of doing so is. Unfortunately, many vacationers mistakenly believe that all Hawaii vacation rentals are picture perfect. While most are, there are no guarantees. If you are looking to have the Hawaii trip of your dreams, you should choose the vacation rental that is perfect for you and your needs. One of the best ways to do so is by examining pictures. They enable you to know exactly what you will get and there shouldn’t be any surprises or disappointments later on.

As previously stated, those looking to take Hawaii trips are urged to examine vacation rentals. Even if you have your heart set on a Hawaii resort stay, you may still want to take the time to examine Hawaii vacation homes, condos, villas, and even apartment rentals. You may be surprised and pleased with what you find.

Hawaii Vacation Rentals: The Importance Of Examining Pictures is a post from: Hawaii Videos