Posted on: Sunday, September 15, 2002

COMMENTARY
Commission procedures deny employer rights

By Jeffrey S. Portnoy

In "Leave civil rights system the way it is," published Aug. 25 in The Advertiser, former state Civil Rights Commission member Richard J. Port argues that the Hawai'i Supreme Court should not find the commission's procedures unconstitutional, and it should keep the agency "the way it is."

Port writes, "Hawai'i must preserve its commitment to civil rights" because "it's the right thing to do to ensure access to justice for all of Hawai'i's people."

He apparently has forgotten that employers have civil rights, too. Literally.

Port fails to acknowledge that Hawai'i's discrimination laws and the commission's jurisdiction apply to any person or business that hires even one employee. Employers, therefore, include the daughter who hires a nurse to assist her elderly father or the mom-and-pop store that needs someone to help sweep up.

Nearly 75 percent of employers have less than 10 employees; more than half have five or fewer employees. These employers have civil rights just as much as any employee.

Despite what Port says, employers are not all big oppressive companies that have great advantage in a lawsuit.

But even large employers have constitutional rights. In fact, all of us, including employers, have a constitutional right to a jury trial and a constitutional right to equal protection under the laws.

When it comes to fundamental rights, the Hawai'i Constitution cannot discriminate against employers versus employees, nor rich versus poor.

Very simply, that is what SCI Management v. Hawai'i Civil Rights Commission, recently argued before the state Supreme Court, is all about. It is a lawsuit filed by an employer who simply seeks the same rights as employees, and who challenges the constitutionality of the Civil Rights Commission's procedures in employment discrimination cases.

The Hawai'i Civil Rights Commission is a state agency that investigates, conciliates and adjudicates claims of discrimination.

The process usually begins when the commission receives a complaint of discrimination from an individual. If no settlement can be reached, the commission's executive director schedules the case for a hearing.

In a housing discrimination case, either tenant or landlord can choose to remove the case from the commission and have it decided in court by a jury. In employment discrimination cases, however, only the employee can opt out of the commission and instead have a jury trial.

If the employee chooses to remain before the commission, a hearings officer decides whether the employer has discriminated. The hearings officer can award monetary damages for pay, incidental damages, pain and suffering, emotional and mental distress, and punitive damages.

In his article, Port is right about only one thing — this case may be the most important civil rights case this year. That is because this case seeks to ensure equal civil rights for all people, including employers.

The Hawai'i Supreme Court has stated that civil rights are defined as "(p)ersonal, natural rights guaranteed and protected by Constitution ... Constitutionally, they are restraints on government." The right to a jury trial is explicitly guaranteed in our state constitution. It is, therefore, a civil right.

Ironically, however, under the Civil Rights Commission's present system, employers never get their civil right to a jury trial unless the employee chooses to file a lawsuit.

The commission can arbitrarily award monetary damages for emotional distress, as well as punitive damages. These are not insignificant amounts. The last case decided by the commission awarded $1.4 million in damages.

As the Circuit Court decided, the fact that the commission can unilaterally award emotional distress and punitive damages without a jury is wrong. No other state agencies are given such unbridled power.

Although there is a right to appeal a commission decision, the appeal procedure does not afford an employer a right to present evidence to an impartial fact-finder. Therefore, under the present commission procedures, an employer never gets a jury trial, not ever. This violates the state constitution.

The state Supreme Court has held that where a state law grants one group of people a constitutional right and deprives another group access to the same right, that law must be very narrowly drafted to ensure that the right is not unfairly denied.

The commission's procedures do not meet this test.

Employers do not want greater rights; all they want is to be treated equally on a level playing field.

Significantly, other states with civil rights agencies have had similar procedures ruled unconstitutional.

Port claims that the current system is efficient and cost-effective for everyone, and therefore, the commission should be permitted to keep its system unchanged.

Our state and our nation's system of laws, however, is not merely about efficiency — it also is about justice, equality and fair play. Ensuring equality and evenhandedness sometimes means that disputes cannot be resolved in the cheapest and most time-efficient manner. The most economical procedure does not ensure fairness and integrity; it only ensures that the matter is concluded swiftly.

If, as Port says, the commission is truly committed to protecting the civil rights of all of Hawai'i's people, it must concede that its procedures are unfair and unequal.

Rather than doing this, however, the commission has desperately fought to keep the system "the way it is." Well, that way simply establishes the commission as prosecutor, judge, jury and executioner.

Even if the commission's procedures are found unconstitutional by the state Supreme Court, the commission will still be able to investigate, conciliate and mediate. It will still be able to award back pay and job reinstatement to a wronged employee. The commission simply would not be able to adjudicate and award general and punitive damages, because those types of damages must be awarded by a jury.

SCI Management agrees with Port that Hawai'i must preserve its commitment to civil rights. That means its commitment to the civil rights of all people, including employers. The state constitution has established a judicial mandate to ensure that the equal rights of all citizens are protected, even when the constitution "pinches" rather than "comforts." Hawai'i must preserve this commitment.

Jeffrey S. Portnoy is a partner in the law firm Cades Schutte Fleming & Wright, and represents SCI Management LP and several other parties who successfully challenged the constitutionality of the state Civil Rights Commission's enforcement and adjudication procedures.