CIVIL RIGHTS COMMISSION
STATE OF HAWAII
In the Matter of ) Docket No. 94-001-E-P
)
YVETTE SHAW, ) FINAL DECISION AND ORDER
)
Complainant, )
)
- -- - - - - - - - - - - - - -)
)
SAM TEAGUE, LTD. dba PAGE )
HAWAII and SAM TEAGUE, )
)
Respondents. )
______________________________)
FINAL DECISION
This case involves a claim of sex discrimination in
employment, in particular, the termination, denial of maternity
leave, and refusal to reinstate an employee who was pregnant.
Complainant Yvette Shaw ("Complainant"), who was pregnant, sought
leave to give birth and was terminated. When she was able to return
to work, she was not reinstated despite the fact that her position
was open.
On February 1, 1995, at 11:30 a.m., Commissioners Amefil
Agbayani, Daphne Barbee-Wooten, Jack Law, and Richard Port heard
oral argument in the above-entitled case. Commissioner Josephine
Epstein did not participate in the decision. Present were Anne
Randolph, Esq., representing the Executive Director, and Dennis W.
King, Esq., representing Respondents Sam Teague, Inc., dba Page
Hawaii, and Sam Teague, as an individual (collectively
"Respondents"). Also were present were Linda C. Tseu, Executive
Director, and Sam Teague, Respondent ("Teague").
The Hearings Examiner's Findings of Fact, Conclusions of
Law, and Recommended Order ("Recommended Decision") was filed on
November 18, 1994. Both parties filed timely Exceptions to the
Recommended Decision and requested an opportunity to present oral
argument. Respondents filed an Errata Sheet to their Exceptions and
a Reply to the Executive Director's Exceptions. The Executive
Director filed a Motion to Strike Respondents' Reply and Respondents
filed a Memorandum in Opposition. The Commissioners have reviewed
the record, read the briefs of the parties, and heard oral argument.
I.
MOTION TO STRIKE
The Executive Director has moved to strike Respondents'
Reply because it allegedly contains additional exceptions, which
should have been filed earlier, and also responds to the Executive
Director's Exceptions. The rules provide that a party may file a
Statement in Support of the Recommended Decision within fifteen days
after receipt of an opponent's Exceptions. Hawaii Administrative
Rules ("H.A.R.") 12-46-54. The Reply contains arguments which
support parts of the Recommended Decision to which the Executive
Director took exception. A Statement in Support narrows the issues
and assists the Commission in its decision making. Respondents'
Reply is essentially a Statement in Support. Thus, the Motion to
Strike is denied.
II.
FINDINGS OF FACT
Respondents take Exception to Findings of Fact No.
("Finding") 12-14, and 21 and Conclusion of Law B.4 which found that
Complainant did not lie when she made a one year commitment to work.
They contend that a reasonable person should have known that a one
year commitment meant twelve consecutive months of work with no time
off for any leave of absence. They further contend that Complainant
lied when she made the commitment because she knew that she was
pregnant and did not inform Teague of that fact at her interview.
At the time of the interview in January 1992, Complainant
believed that she would be able to work until 1995. Her husband is
in the military and stationed in Hawaii until 1995. Thus,
Complainant felt that she could make a commitment to work for one
year[1] because she would be in Hawaii for a longer period. She did
not know that by a one year commitment Respondents meant twelve
consecutive months without any possibility of leave.
Respondents' prior employees had difficulty staying for
twelve consecutive months. Three of the four previous office
managers had left after working less than a year. Finding 4.
Respondents wanted an employee who could stay for a continuous
period of time and not take any leave. The record reflects that
Respondents' request for a one year commitment did not clearly
convey the continuous nature of the work and the impossibility of
any leave. Respondents seek to place the burden upon Complainant to
ask for clarification about the one year commitment. There is a
significant difference between a general request for a one year
commitment to work and a specific request for a commitment to work
for twelve consecutive months without the possibility of taking
leave for any reason whatsoever. Given the importance of having an
employee who would not need to take any leave during the year,
Respondents should have made their requirements clear in the
interview.
A lie is defined as an intentional statement of an untruth
designed to mislead another. Black's Law Dictionary, 6th Ed.
(1990). A reasonable person would not understand that a one year
commitment meant twelve consecutive months without the possibility
of any leave. There are various laws which provide leaves of
absence to employees. Workers' compensation, Chapter 386, and
temporary disability insurance (TDI), Chapter 393, provide leaves
for on-the-job and off-the-job injuries, respectively. H.A.R. 12-
46-108 requires that an employer provide reasonable leave for
pregnancy, childbirth, or related medical conditions, with or
without pay. A prospective employee cannot be required to waive his
or her right to take leave provided by law as a condition of
accepting a job.
Respondents contend that Complainant was required to
disclose her pregnancy because of her knowledge of this fact at the
time of her interview with Teague. The record reflects that
Respondents did not ask Complainant whether she was pregnant.
H.R.S. 378-2(1)(C) provides "[i]t shall be an unlawful
discriminatory practice [b]ecause of . . . sex . . . [f]or any
employer . . . to make any inquiry in connection with prospective
employment, which expresses directly or indirectly, any limitation,
specification, or discrimination." In other words, an employer
cannot ask a prospective employee if she is pregnant. As a
corollary, a prospective employee is not required to disclose her
pregnancy. Complainant did not make an intentional statement of
untruth designed to mislead Respondents by not disclosing she was
pregnant. Thus, Complainant did not lie when she agreed to make a
one year commitment despite knowing of her pregnancy[2] or lie when
she did not disclose her pregnancy.
The Commission hereby adopts the Proposed Findings of
Fact, in its entirety, with the exception of Finding 44, which is
modified in accordance with this decision. See, Part III, D, infra.
III.
CONCLUSIONS OF LAW
A. JURISDICTION
The Commission hereby adopts Conclusions of Law A, 1 and
2 regarding the Commission's jurisdiction over the Respondents.
B. PREGNANCY DISCRIMINATION
1. DISPARATE IMPACT CLAIM
"Fundamentally, pregnancy is a neither a disability nor
a dysfunction, but a normal moment in the human reproductive process
specific to women. . . . Leave policies that define normal
conditions of employment in terms which are inadequate to
accommodate pregnancy define pregnancy as incompatible with
employment." Reva B. Siegel, Comment: Employment Discrimination
Under the Pregnancy Discrimination Act of 1978, 94 Yale L.J. 920,
942 (1985) (footnote omitted). The inclusion of "pregnancy,
childbirth, or related medical conditions" in the definition of
"because of sex" in H.R.S. 378-1 means that the prohibition
against sex discrimination in employment requires careful scrutiny
of policies which impact upon a woman's ability to participate in
the workforce and have a family.
In the past, discrimination against pregnant women has
taken many forms. Such discriminatory practices have included:
reversal of a decision to hire upon notice of pregnancy; immediate
termination upon notice of pregnancy; conditioning eligibility for
maternity leave upon years of service; requiring unpaid maternity
leave at the immediate onset of pregnancy; reinstatement only after
a fixed period of time unrelated to medical clearance; denial of
fringe benefits during maternity leave; and loss of seniority. Id.
at 932, n.16. Today most pregnant women do not face such blatant
discriminatory policies; however, there still may be other policies
which disadvantage them.
By its very nature, "pregnancy, childbirth, and related
medical conditions" require that a female employee take some leave
from work. By taking such leave, a pregnant woman should not be
penalized or disadvantaged. After a medically reasonable period of
time, a woman should be allowed to return to her job. These minimum
protections should be part of any prohibition against discriminatory
practices because of "pregnancy, childbirth, and related medical
conditions."
The Recommended Decision concluded that Respondents' "no
leave" policy had a disparate impact upon women and was not
justified by business necessity. The key point was the Hearings
Examiner's conclusion that during the period of Complainant's
maternity leave, Teague would have had to spend the same amount of
time working with and training an inexperienced temporary worker or
working with and training an inexperienced permanent replacement
employee. Recommended Decision at 19. In other words, operating
the business with a temporary employee (and keeping the position
open for Complainant) would have imposed the same burden as hiring
a permanent replacement. Thus, the alleged inconvenience of
allowing Complainant maternity leave and reinstating her does not
create a business necessity justification for the "no leave" policy.
Indeed, if Complainant had been reinstated, she would have returned
to her job with more experience (Complainant was fully trained by
Teague and had mastered about 75%-80% of the office manager duties,
Finding 28) than the new replacement and would probably have been
more loyal to a business that treated her and her family with
respect.
By extending the law to protect pregnant women, the
Legislature has made a public policy decision that supports both the
employment of women and childbirth. In order to prevent
discrimination against pregnant women, a reasonable period of leave
must be provided. To not allow leave would place the entire burden
upon the woman and return to the old policies which penalized
pregnant women. The Commission agrees with and adopts the
conclusion of the Recommended Decision that Respondents' "no leave"
policy had a disparate impact upon pregnant employees and
constitutes a violation of H.R.S. 378-2(1)(A), H.A.R. 12-46-
106, 107, and 108.
2. DISPARATE TREATMENT CLAIM
H.A.R. 12-46-106 provides: "Females shall not be
penalized in their terms or conditions of employment because they
require time away from work on account of disability resulting from
pregnancy, childbirth, or related medical conditions."
H.A.R. 12-46-107(b) provides: "It is an unlawful
discriminatory practice to discharge a female from employment or to
penalize her in terms, conditions, and privileges of employment
because she requires time away from work for disability due to and
resulting from pregnancy, childbirth, or related medical
conditions."
H.A.R. 12-46-108 provides:
(a) Disability due to and resulting from pregnancy,
childbirth, or related medical conditions shall be
considered by the employer to be justification for a
leave, with or without pay, by the female employee for a
reasonable period of time. "Reasonable period of time"
as used in this section shall be determined by the
employee's physician, with regard for the employee's
physical condition and the job requirements.
. . .
(c) A female employee shall be reinstated to her original
job or to a position of comparable status and pay, without
loss of accumulated service credits and privileges. The
employer may request, prior to the employee's return, a
medical certificate from the employee's physician
attesting to her physical condition and approving her
return to work.
. . . .
The Commission rules provide that a pregnant employee
should not be penalized because of her pregnancy. The rules
specifically prohibit an employer from discharging employees who
require time away from work because of pregnancy, allow them to take
a reasonable leave of absence, with or without pay, and require
reinstatement to their original position or a position of comparable
status and pay after they can return to work. These rules reflect
the protections that must be accorded to pregnant employees to
prevent discrimination.
The record reflects that Respondents did not give
Complainant a leave of absence, terminated her, and did not
reinstate her because of her pregnancy. Findings 25, 33-35, 37-38.
Such actions were contrary to H.R.S. 106, 107(b), and 108(a) and
(c).
Despite direct evidence that the actions were taken
because of Complainant's pregnancy, Respondents contend that they
would have discharged Complainant (as well as not provide leave or
reinstatement) because she had lied about the one year commitment
and did not reinstate her because they had already hired another
permanent employee, Marnie Wolfort ("Wolfort"). When there is
direct evidence of discrimination, an employer may limit, but not
avoid, liability by showing a mixed motive for the adverse action.
In re Smith/MTL Inc., Docket No. 92-003-PA-R-S (1994). In other
words, Respondents must prove that they acted based upon the reason
given and without regard to Complainant's protected basis.
"[E]mployer's legitimate reason for discharge in mixed motive case
will not suffice 'if that reason did not motivate it at the time of
the decision.'" McKennon v. Nashville Banner Publishing Co., ---
U.S.--- (January 23, 1995) (quoting from Price Waterhouse v.
Hopkins, 490 U.S. 228, 260-261 (White, J., concurring, and O'Connor,
J., concurring).)
The record reflects that at the time Complainant informed
him about her pregnancy through the time the second replacement,
Wolfort, was hired, Teague did not know whether she had lied about
her ability to make a one year commitment. (Transcript Vol. VI, at
206). The letter of termination Teague sent on September 18, 1992,
made no reference to lying. "[I]t is impossible to hold open your
job. The learning curve for the job is simply too great." Exhibit
12. The October 26, 1992 letter, Exhibit 14, which responded to
Complainant's October 23, 1992 letter seeking reinstatement, again
referred to the learning curve and did not mention lying. It
further stated, "I will certainly call you to determine your
willingness and ability to fully perform the duties required of the
office manager of Page Hawaii." Id. This indicates that the
refusal to reinstate Complainant was not because of any belief that
she had lied. Subsequently on November 23, 1993, Respondents
offered Complainant a position as office manager. Finding 42. This
further indicates that concerns about Complainant's veracity were
not significant at the time she was terminated, not given leave, and
not reinstated.
Also given the Findings and Conclusion that Complainant
did not lie about her ability to make a one year commitment or fail
to disclose her pregnancy, the Commission concludes that her alleged
lying was not a legitimate reason, much less the motivating reason,
for the adverse actions. Thus, Respondents had no legal
justification for the termination and failure to provide leave or
reinstatement under a mixed motive analysis.
Additionally, the hiring of Wolfort does not provide any
justification for not reinstating Complainant. Given the duty to
reinstate an employee after a reasonable period of maternity leave,
H.A.R. 12-46-108(c), an employer cannot circumvent the law simply
by hiring a permanent replacement. This would provide every
employer with an easy way to discriminate against pregnant women.
Indeed, the facts of the case provide added justification for not
believing this reason for Respondents' failure to reinstate. After
Complainant left work, Respondents hired Susan Fusari ("Fusari") as
the first replacement. After working for a few weeks, Fusari gave
notice of her resignation at the beginning of October 1992. Teague
asked her to stay a few weeks longer to accommodate a business trip
he had planned. Finding 36. At the time of Fusari's notice,
Complainant had indicated her desire to return to work on three
occasions, the last time in late September 1992 in a telephone
discussion with Teague. Finding 34. Fusari stayed through October
22, 1992. Finding 36. Complainant was cleared by her doctor to
return to work on October 23, 1992. Finding 38. Thus, Respondents
could have reinstated Complainant without any difficulty and
complied with the law.
C. LIABILITY
Respondents' "no leave" policy has an adverse impact upon
women who are pregnant and constitutes a violation of H.R.S. 378-2
and H.A.R. 12-46-106, 107(b) and 108(a) and (c).
Respondents' termination of Complainant, refusal to grant
reasonable leave, and failure to reinstate constitute a violation of
H.R.S. 378-2, H.A.R. 12-46-106, 107(b), and 108(a) and (c).
D. BACKPAY
Complainant was unemployed from October 23, 1992 through
September 1993, at which time she was hired as a substitute teacher
with FutureKids. Finding 43. In November 1993 she was hired as a
substitute teacher with the Department of Education and began
teaching in December 1993. Id. On November 22, 1993, she was
offered her old position as office manager at Page Hawaii but
declined. Finding 42.
The Hearings Examiner concluded that Complainant was
entitled to backpay because Respondents had discriminated against
Complainant by not reinstating her. The period of back pay was
determined to be November 2, 1992 through January 31, 1993. The
terminal date was selected because Complainant could have mitigated
her damages by applying for work at RAM Paging Hawaii in February
1993. The Hearings Examiner found that if Complainant had applied,
she would have been hired because by RAM Paging Hawaii in February
1993 which had job openings and was looking for people with
experience in the field. Recommended Decision, at 27.
The record reflects that Complainant applied for various
jobs as a condition of receiving unemployment benefits and kept a
list of such contacts. Exhibit 38. She applied to RAM Paging
Hawaii on January 11, 1992, as well as to other telecommunications
companies, such as The Cellular Source, Cheaper Beeper, and Honolulu
Cellular Telephone Co. Id. The record reflects that Complainant
also received letters of rejection from several companies. Exhibit
37. Not getting a rejection letter from RAM Paging Hawaii does not
establish that she did not send them a resume. The Commission
hereby finds that "Complainant applied to RAM Paging Hawaii, Inc.,
and other paging and telecommunications companies." Finding 44 is
modified by adding the above-quoted sentence and deleting the second
through fourth sentences of the Finding. The conclusion that
Complainant could have secured a comparable job with higher pay at
RAM Paging Hawaii in February 1993 is reversed.
The Commission concludes that Complainant is entitled to
backpay from October 23, 1992, the day she was cleared to return to
work, Finding 38, through November 23, 1993, the day that she was
offered and rejected the officer manager position by Respondents.
Finding 42. The amount of the monthly back pay of $1,300.00 (one
thousand three hundred dollars) will be offset by the amount she
earned as a part-time teacher $400.00 (four hundred dollars).
Complainant is entitled to 13 (thirteen) months of back pay or
$16,900.00 (sixteen thousand nine hundred dollars) less $400.00
(four hundred dollars) for a total of $16,500.00 (sixteen thousand
five hundred dollars).
E. COMPENSATORY DAMAGES
The Hearings Examiner awarded Complainant $20,000.00
(twenty thousand dollars) in compensatory damages. Based upon the
record, the Commission concludes that $5,000.00 (five thousand
dollars) is a fair amount to compensate Complainant for the
emotional distress she suffered from Respondents' discriminatory
conduct.
F. OTHER RELIEF
The Commission hereby adopts the Hearings Examiner's
recommendations that Respondents be ordered to 1) immediately cease
and desist from further discriminatory practices on the basis of sex
due to pregnancy when such practices are not based upon business
necessity; 2) develop a written non-discrimination policy on the
basis of sex and pregnancy, submit it to the Executive Director for
comment, and adopt the policy in accordance with those comments
within the timeframes specified; 3) post notices provided by the
Commission regarding discrimination laws in a conspicuous place on
its premises; and 4) publish a notice (Attachment 1, Recommended
Decision) in a newspaper in the State of Hawaii having a general
circulation in the City and County of Honolulu. The requirement of
training will be modified to allow Teague to take a course in
employment discrimination, including pregnancy discrimination, which
is approved by the Executive Director. The written policy should be
developed within thirty days of this decision regardless of the
availability of training within that time.
IV.
ORDER
With the exception of the modification of Finding 44, the
increase in the amount of back pay, the rejection of the conclusion
that Complainant could have obtained a job with RAM Paging Hawaii in
February 1993, the reduction in the amount of compensatory damages,
and the modification of the training requirement, the Commission
hereby incorporates in full the remainder of the Proposed Findings
of Fact, Conclusions of Law and Proposed Decision.
DATED: Honolulu, Hawaii
Amefil Agbayani, Commissioner
Jack Law, Commissioner
Richard Port, Commissioner
CIVIL RIGHTS COMMISSION
STATE OF HAWAII
In the Matter of ) Docket No. 94-001-E-P
)
YVETTE SHAW, ) OPINION BY COMMISSIONER
) DAPHNE BARBEE-WOOTEN
Complainant, )
)
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)
SAM TEAGUE, LTD. dba PAGE )
HAWAII and SAM TEAGUE, )
)
Respondents. )
______________________________)
OPINION BY COMMISSIONER DAPHNE BARBEE-WOOTEN
I agree and concur with the Findings of Fact and
Conclusions of Law that Respondents discriminated against
Complainant because she was pregnant, which is a form of sex
discrimination. Sec. 378-1, HRS. Our civil rights law clearly
protects women from discrimination because of their pregnancy, and
an employer must offer a pregnant employee her job back once she is
medically able to return to work. Hawaii Administrative Rules 12-
46-108(c). However, I disagree with the Commissioners' reduction of
the Hearings Examiner's award of compensatory damages from
$20,000.00 to $5,000.00. I feel an amount of $15,000.00 is fair and
just compensation for general damages suffered by Complainant, in
addition to the other remedies awarded.
DATED: Honolulu, Hawaii
Daphne Barbee-Wooten, Commissioner
NOTICE: Pursuant to H.R.S. 91-14, an aggrieved person may
institute proceedings for judicial review in the circuit court
within thirty days after service of the certified copy of the final
decision and order of the Commission.
--------------------------------------------------
footnotes:
1. Complainant's intent to return to work after giving birth
is consistent with her understanding of a one year commitment. This
intent was stated to Teague on several occasions. Finding 19, 21,
24, 35, and 38.
2. A job applicant would not be required to disclose her
pregnancy if an employer, seeking a continuous one year commitment
without the possibility of any leave, asked if there was any thing
that would prevent her from meeting that commitment. Such a
question would indirectly indicate a specification, limitation, or
discrimination based upon sex and would be prohibited by H.R.S.
378-2(1)(C).
