Rights commission legality in question
By David Waite
Advertiser Staff Writer
A commission established by the Legislature more than a decade ago to safeguard the civil rights of Hawai'i residents has itself violated provisions of the state and federal constitutions because it does not give employers the same rights as employees, a Circuit Court judge has ruled.
Circuit Judge Dan Kochi agreed with attorneys for a burial services company and its parent firm on Tuesday that a portion of state law that pertains to operations of the Hawai'i Civil Rights Commission is unconstitutional.
That's because under the existing law, once the commission finds there is probable cause to support a claim that an employer violated the civil rights of an employee, it is entirely up to the employee to decide whether to pursue the matter administratively — through the commission — or to take it to court.
Attorneys Jeff Portnoy, David Banks and Kristin Shigemura argued that the section of law is unconstitutional because it deprives employers of a right to a court trial, as guaranteed in an amendment to the Hawai'i Constitution, and equal protection under the law, a right protected by an amendment to the U.S. Constitution.
Allen Lynde, Hawai'i Civil Rights Commission administrative assistant and an attorney, said the agency believes that the ruling is erroneous and will appeal.
"If the order stands, it would be very significant," Lynde said. The commission received more than 700 complaints last year, he said.
The commission was established to enforce state laws banning discrimination based on race, color, religion, age, sex, sexual orientation, marital status, national origin and ancestry in matters that include employment and housing.
Under the law, a person can file a complaint with the commission. If the commission's executive director finds the evidence supports the charge, the person can either file a lawsuit or have the case heard by the commission, which could then award the person money damages from the wrongdoer.
Hawai'i system unique
In a recent case, the commission ordered Aloha Airlines to pay $1 million to a pilot who was blind in one eye and who claimed the company would not hire him because of that. The award was later overturned in court.
Kochi's ruling prohibits the Hawai'i Civil Rights Commission from adjudicating discrimination complaints brought against the burial services company by two women who claimed they were sexually harassed. The company has denied the allegations, made more than two years ago.
While the ruling applies only to his case, there is no reason why other attorneys can't make the same constitutional arguments in their cases, Portnoy said.
"Up until until Tuesday, under state law the employer had no right to say in what forum they wanted the complaint to be heard — in front of a jury in court, or administratively before the civil rights commission," Portnoy said.
He said "there is no question" that many Hawai'i employers have come to believe that the commission is "employee friendly" and that it is hard for employers " to get a fair shake" from the commission.
In the case involving his clients, Portnoy said the commission recommended a settlement of $450,000 for each of the women who filed complaints. It is because the commission has the authority to award damages to people whose discrimination claims it upholds that the constitutional challenge was brought, Portnoy said.
"The bottom line is the system we had in place in Hawai'i was unique. No other states or the federal government would condone it in the first place.
"The system has been in place for years. I give judge Kochi credit for deciding it on the constitutionality issue, I think it took tremendous judicial courage to do so," Portnoy said.
Attorney Eric Seitz, a constitutional law expert, said he was not surprised by Kochi's decision.
"I think the civil rights commission has been living on the edge for a long time and has acted as a bully toward my clients in many of the cases I have been involved with," Seitz said.
Commission Executive Director William Hoshijo and staff attorney John Ishihara could not be reached yesterday to comment.
Lynde said the five commission members had been asked not to comment on the ruling.
Other cases may follow
Lynne Toyofuku, an attorney whose firm represents employers for the most part in labor disputes, called word of the ruling "quite interesting" and said she is considering making constitutional arguments in a case of her own that is pending before the commission.
"'I've probably filed 150 to 200 responses to complaints with the commission over the past seven years, and have never ever gotten a probable-cause finding against any of my clients," Toyofuku said. "I question the mission of the entire entity at this point. It seems very pro-complainant (employee) because they can choose the forum and the commission is in complete control of the scheduling. If you represent the respondent (employer) you have no choice but to sit around and wait."
Lynde, however, said the framework under which the commission was established took into account the substantial legal and financial resources large companies have in trying to ward off civil rights complaints brought by employees.
But Toyofuku said the number of private attorneys willing to take on claims of civil rights violations on a contingency basis has soared over the past decade.
"And Hawaii probably has one of the highest rates of unionized employees in the country. Employees here can always go to the union for assistance," Toyofuku said.
Correction: Attorney Kristin Shigemura's first name was misspelled in a previous version of this story.
