Mirror of Justice

Employment Discrimination: Important Answers to Your Questions

July 16th, 2009 at 03:01am Under Uncategorized

By law, your employer may not discriminate on the basis of race, color, religion, gender, national origin, age (over 40), citizenship, pregnancy, or disability. The California Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964 prohibit discrimination based upon these factors. In California, the Fair Employment and Housing Act also prohibits discrimination based on sexual orientation.

What constitutes Discrimination?

Discrimination means applying employment decisions such as hiring, firing, promotion, pay raises, benefits, work assignments, leaves of absence or almost any other aspect of employment in a discriminatory way based upon one of the prohibited bases.

I’ve suffered discrimination. What should I do?

You should inform your employer of the discriminatory treatment (i.e., complain). Doing so is important, as the law requires that the employer investigate all claims of discrimination and take immediate and appropriate action to remedy the situation.

What if my employer retaliates against me?

It is illegal for an employer to retaliate against a victim of discrimination. Employers do sometimes retaliate against an employee for raising claims of discrimination — but they do so at their own peril. Retaliation could be any of the following actions: firing, denial of promotions, denial of pay raises, altering work assignments, denial of leaves of absence, or other adverse actions in almost any other aspect of employment. Any such adverse action taken against an employee within a relatively short time period after the employee complains of discrimination will be considered suspect. This is especially so when the employee is terminated shortly after complaining. If an adverse action is later found to be in retaliation for the complaint, the employer will be subjected to separate liability for violation of federal and state laws — whether the discrimination is proven to have occurred or not. An employee has an absolute right to complain about discrimination or harassment without fear of retaliation by his or her employer.

What if the discrimination continues?

Before any lawsuit can be filed against an employer for discrimination, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. This is designed to give the employer time to remedy its conduct prior to being sued. In many cases, it is simply a formality that must be taken care of prior to a lawsuit.

The Department of Fair Employment and Housing (DFEH) is the state agency that investigates complaints of violations of state employment discrimination laws. The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates complaints of violations of federal civil rights law (Title VII) in employment.

Do I need a lawyer?

If your complaint goes nowhere, you can still strike back in court. The complaint process both within companies and through the federal and state agencies charged to investigate complaints can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee’s recovery may include his or her past lost wages and benefits, future wage loss, attorney fees, and punitive damages. Punitive damages are calculated in part on the earnings of the company.

California Labor Lawyer Discusses the Filing of Harassment, and Discrimination Complaints with the EEOC, DFEH, and DLSE

July 15th, 2009 at 09:02am Under Uncategorized

When it comes time for a California labor attorney to choose which state or federal agency the California labor attorney should file a complaint with for harassment, discrimination, or retaliation on behalf of a client, and a California labor lawyer has a tough choice. Equally tough are the short statutes of limitation a labor lawyer in California has to file age discrimination complaints.

If you’ve been the victim of discrimination, harassment or retaliation in your employment in California, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

Despite the economy and the current economic condition of the State of California, the Department of Fair Employment and Housing, the EEOC and the Department of Labor Standards Enforcement (DLSE) division of the Department of Industrial Relations still advise California labor attorneys that they have the resources to investigate complaints.

Employees who have signed arbitration agreements or who have received threats of legal action if they file a claim with any of these agencies should first contact a California labor lawyer but should also note that the State of California and the Federal Government generally will not recognize such restrictions on California and U.S. employees. Indeed, attempts to restrict employees from having government agencies investigate wrongdoing by employers may undergo severe scrutiny.

Generally, valid waivers of rights must specifically refer to the rights or claims that are being waived. They may not generally waive rights or claims that may arise in the future without additional language. And they must advise the individual in writing to consult an attorney before signing the waiver.

The position of the EEOC, for instance, is that even a valid waiver of rights by an employee does not affect the EEOC’s rights and responsibilities to enforce the law. While a valid arbitration agreement may require arbitration between an employee and an employer, it does not bar the EEOC from seeking judicial relief on behalf of an employee.

Indeed, retaliation against an employee after she reports harassment or discrimination by terminating the employee, and then a company’s further retaliation either by threatening legal action or by termination may constitutes a separate claim on top of the original claim for harassment or discrimination. Unfortunately, employees without the benefit of counsel from a California labor lawyer may be taken in by such threats.

Both the DFEH, the EEOC may handle a discrimination, harassment and retaliation claim and the DLSE/DIR’s Sacramento office which enforces retaliation laws, may act simultaneously, so long as the matters are timely filed with each agency within the appropriate statutes of limitations.

With the DFEH, once the employee or ex-employee makes an appointment to start the process, the wheels will begin turning but the statute of limitations is not tolled until a complaint is filed by the employee. With the EEOC, once the employee files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. After the EEOC receives the charge, they are obligated to conduct an investigation and they have the power to issue subpoenas in connection with their investigation. If the EEOC finds unlawful discrimination, they have the power to eliminate such unlawful practices. Even an enforceable agreement binding an employee to arbitrate disputes with the employer does not affect the EEOC’s power to sue the employer to enjoin further violations. Nor does it bar the EEOC from seeking victim-specific relief, including money damages.

If the EEOC is unable to secure a conciliation agreement with an employer within 30 days after a charge is filed, the EEOC may file a civil action against the employer and may seek temporary or permanent relief.

If the DFEH decides to pursue a matter themselves, they may issue an accusation and prosecute the claim before the Fair Employment and Housing Commission (FEHC). Like the EEOC, the DFEH has the power to issue subpoenas, take depositions and serve written interrogatories. If they find a violation, they will seek to eliminate it.

The DFEH has the authority to issue cease-and-desist orders, and to award reinstatement, backpay, front pay, emotional damages, and an administrative fine. The amount of that fine is determined by factors which include willful, intentional or purposeful conduct, refusal to prevent or eliminate discrimination, conscious disregard for the rights of employees, commission of unlawful conduct, intimidation or harassment, conduct without just cause or excuse and multiple violations of the FEHA.

While the amount awarded for emotional distress may not exceed $150,000 for each person, an additional amount of $150,000 may be awarded for intimidation. The FEHC may also award reasonable attorney fees, including expert witness fees to the prevailing party. However, the award to the prevailing party is discretionary and the courts generally do not require a losing plaintiff to pay the employer’s California labor attorney’s fees and costs.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, sex and religion. It applies to employers with 15 or more individuals. It is unlawful for an employer to discriminate against any individual, even if that discrimination is prompted by the racially motivated actions of other employees.

Title VII prohibits offensive conduct that is unwelcome and offensive, and that is severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Employers may not fire or otherwise retaliate against or take an adverse action against an individual for filing a charge of discrimination.

Adverse actions include an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Prohibited acts of retaliation can occur after termination and receive the same scrutiny by the DFEH whether they occur before or after termination.

Protected activities of employees include complaining to anyone about alleged discrimination against oneself or others, taking part in employment discrimination proceedings, and filing a charge of employment discrimination.

While the amount of damages that can be awarded for compensatory and punitive damages recoverable under Title VII go up to only $300,000 against companies with 501 or more employees, there are no such limits under the FEHA. Even under Title VII, damages for emotional distress may be awarded. Title VII specifically authorizes compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.

Before the Civil Rights Act of 1991, neither compensatory nor punitive damages were recoverable under Title VII. By contrast, both types of damages were and are available under the FEHA. Punitive damages are also now available against nongovernmental entities under Title VII for cases of intentional employment discrimination, including cases proved by disparate treatment where the respondent engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. The standard is similar with the FEHA.

One of the recurring themes employers use to justify the termination of an employee they have harassed or discriminated against to California labor lawyers, is that the termination was part of a planned reduction in employees. However, under the law, even if good cause exists for a reduction in force, an employer’s decision to lay off certain employees while retaining others may be challenged by a California labor attorney under applicable anti-discrimination laws. A case involving just this situation receiving a great deal of national publicity involves the lay offs of a disproportionate number of women from Wall Street institutions.

Employers are bound by state laws that provide greater protection for employment than comparable federal laws, which is the reason most employment claims are filed with the FEHA.

When it comes to harassment and retaliation, the California constitution prohibits harassment based upon factors which include race, color, sex, national or ethnic origin. Discrimination based on physical or mental disability, marital status, a medical condition (including pregnancy and child birth) and sexual orientation is also prohibited. The FEHA also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.

Government codes section 12965(b) requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons and from their California labor lawyers for clients who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.

Once a “right-to-sue-notice” is received from the DFEH, the employee has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.

Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.

A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.

In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but neither a complainant nor his or her California labor attorney does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.

Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.

A much less publicized and less known agency, even among California labor attorneys in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

Filing a complaint with the Labor Commissioner does not prevent a person or their California labor lawyer from filing a private lawsuit.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of harassment, discrimination or retaliation in your employment in California.

Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS

July 14th, 2009 at 08:56pm Under Construction Law

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

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.

I.          The Importance of Having an Effective Harassment Policy

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.

II.        The Importance of Conducting EEO Training

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