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The Honolulu Advertiser
Posted on: Sunday, August 25, 2002

Leave civil rights system the way it is

By Richard J. Port

In an era of nationwide civil rights rollbacks, Hawai'i has remained true to its civil rights commitment. Our laws protect us from discrimination and inequality. Our Civil Rights Commission enforces our rights fairly and effectively.

But this landscape could soon change. SCI Management v. Ha-wai'i Civil Rights Commission, a case heard by the Hawai'i Supreme Court on Thursday, threatens to dismantle a cornerstone of Hawai'i's civil rights enforcement system. In what may be the most important civil rights case this year, the court must decide whether to uphold a law that levels the playing field for victims of employment discrimination.

Much is at stake. This case jeopardizes the ability of individuals to pursue their discrimination claims. It also threatens the efficacy of the Hawai'i Civil Rights Commission.

The commission is the administrative agency responsible for enforcing our anti-discrimination laws. To fulfill this mandate, the commission handles claims through a system of screening, investigation, conciliation and settlement — with fairness and due-process protections for all parties. For more than a decade, this system has worked.

Now the commission is under attack by those who claim it discriminates against employers. Opponents seek to strike down a law that gives victims of employment discrimination the choice of pursuing their claims through the administrative process (out of court) or in Circuit Court. Because employers don't have this same "choice of forum," opponents contend, employers' rights have been infringed.

This case is fundamentally about the right to be free from discrimination. Individuals who have suffered from employment discrimination are often at a disadvantage. They frequently lack the money or resources to hire a lawyer and properly file a case in court. This is why the law affords them a measure of power to balance the scales by staying in a low-cost administrative forum.

If the law is struck down, the commission's administrative dispute-resolution process will be rendered virtually meaningless. Most employers will sidestep the commission administrative process and go to court to gain the strategic advantages of delay and superior resources. The burden will fall to the courts to deal with increased caseloads, often brought by employees unable to obtain legal representation. Without this important employment rights law, the commission will be unable to do the work most valuable to Hawai'i's people.

The civil rights commission's carefully crafted administrative system should be left intact. Under the current system, we all benefit — employers, employees and the local community. Here's how.

Safeguards for employers

The current process is cheaper for employers. Going to court is expensive and time-consuming. The present system screens out more than 90 percent of employment discrimination claims before they reach the court system, thereby reducing litigation costs to employers.

The present system is more manageable for employers. The commission process weeds out weak cases early, including a substantial number of cases by unrepresented plaintiffs that tend to be more burdensome for employers to defend and more difficult for the courts to manage.

The process provides both parties with strong procedural safeguards. The commission forum provides invaluable procedural safeguards for employers and employees — much like the protections available in court. These include the right to counsel, subpoena, examination and cross-examination of witnesses, general discovery (collection of evidence) and judicial review.

Employees get fair shake

The present system gives employees a fair shake. While streamlining the process, the commission gives employees opportunities to present their claims. Employees who can't afford a private lawyer and litigation are still afforded an inexpensive and effective administrative forum with full and fair investigation of their claims.

The pool of private lawyers who specialize in discrimination cases is relatively small. Private lawyers often turn down legitimate claims because victims lack the ability to pay thousands of dollars in legal fees, or the potential amount of damages does not justify the risk of bringing the case on a contingency basis.

For many employees, the commission is the only outlet. It investigates claims, and it finds, prosecutes and roots out discrimination — regardless of the employee's means or the stakes.

Public money saved

The present system saves the courts time and the public money. The commission screens out many nonmeritorious claims and helps settle numerous cases without flooding the court system. Only a very small percentage of cases makes it to court.

The present system protects the civil rights of all of Hawai'i's people. Perhaps most important, the commission's system ensures that our collective civil rights are protected. Each time a victim of discrimination comes forward to the commission, that person plays a crucial part in enforcing our constitutional right to be free from unlawful discrimination.

The law at stake is part of a comprehensive plan to provide an inexpensive, efficient and informal process for resolving employment discrimination claims. It promotes more negotiated resolutions, helps ensure that bona-fide discrimination claims are presented and adjudicated fairly, and upholds Hawai'i's constitutional mandate to protect the civil rights of Hawai'i's residents.

In an era in which civil rights protections are being rolled back across the country, Hawai'i must preserve its commitment to civil rights — and to the work of the Hawai'i Civil Rights Commission. It's not only cost-effective and efficient, it's the right thing to do to ensure access to justice for all of Hawai'i's people.

Richard J. Port is a retired educator. He was one of five members of the Hawai'i Civil Rights Commission appointed by Gov. John Waihe'e, serving from 1992 until 1996. He is a former chairman of the Democratic Party of Hawai'i.