Ahofin.txt
CIVIL RIGHTS COMMISSION
STATE OF HAWAII
LINDA C. TSEU, Executive ) Docket No. 94-002-E-D
Director, on behalf of )
the complaint filed by ) FINAL DECISION AND ORDER
HAWAIILOA KALIMA AHO; )
)
v. )
)
DEPARTMENT OF PARKS AND )
RECREATION, CITY AND COUNTY )
OF HONOLULU. )
)
Respondent. )
______________________________)
FINAL DECISION
On December 8, 1994, at 12:00 noon, the Commission heard oral
argument in the above-entitled case. Present were Commissioners
Amefil Agbayani, Daphne Barbee-Wooten, Josephine Epstein, Jack Law,
and Richard Port. The case in support of the complaint was
presented by Enforcement Attorney Karl Sakamoto representing the
Executive Director, Linda C. Tseu. Complainant Hawaiiloa K. Aho
("Complainant") was present. Respondent Department of Parks and
Recreation, City and County of Honolulu ("Respondent"), was
represented by Deputy Corporation Counsel Moly Hung.
Both the Respondent and the Executive Director filed written
exceptions to the Findings of Fact, Conclusions of Law, and
Recommended Order ("Recommended Decision") issued by the Hearings
Examiner. The Commissioners considered the exceptions, heard the
oral argument, and reviewed portions of the record cited by the
parties.
I.
FINDINGS OF FACT
The Commission hereby adopts and incorporates by reference
Findings of Fact 1 thorough 38 and Appendix A of the Recommended
Decision.
II.
CONCLUSIONS OF LAW
A. DISABILITY DISCRIMINATION
Under H.R.S. 378-2(1), it is an unlawful discriminatory
practice because of disability for any employer to refuse to hire or
employ or to bar or discharge from employment, or otherwise to
discriminate against any individual in compensation or in the terms,
conditions, or privileges of employment. The Recommended Decision
analyzed whether Complainant had been discriminated against because
of his disability under H.R.S. 378-2 and the Hawaii Administrative
Rules ("H.A.R."). The Recommended Decision relied upon case law
interpreting the Rehabilitation Act of 1973, 29 U.S.C. 701 et
seq., which prohibits employment discrimination by reason of
disability, 29 U.S.C. 794, as does H.R.S. 378-2, and which uses
the term "individual with a disability", 29 U.S.C. 706(8)(A), with
the same three part definition as in H.R.S. 378-1. The
Recommended Decision also relied upon Title VII case law
interpreting the bona fide occupational qualification defense
contained in H.R.S. 378-3(2).
Respondent takes exception to the use of the term "disability"
to characterize the discriminatory conduct because the events
occurred between 1989 and 1991 and the term "disability" was added
in 1992. Respondent fails to note, however, that between 1989 and
1991, discrimination because of "handicapped status" was prohibited
and the definitions for "disability" and "handicapped status" are
identical. Thus, Respondent's exception does not affect the result
of the case, and the Commission will use the current term
"disability" instead of "handicapped status" to characterize the
discriminatory conduct.
Respondent also takes exception to the use of the H.A.R.[1] on
the grounds that the administrative rules were adopted in 1994 and
are being applied retroactively to conduct which occurred between
1989 and 1991. Although the rules were designed to reflect the
existing state law protections, the Commission will not apply the
administrative rules to Respondent's conduct. To the extent that
the Recommended Decision relied upon the H.A.R., the Commission does
not adopt those portions of the decision. However, the Recommended
Decision's analysis which relied upon case law under the
Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of
1964 and concluded that Respondent discriminated against Complainant
because of his disability in violation of Chapter 378, will be
incorporated into the Final Decision. On pages 26 and 30 of the
Recommended Decision the citation to H.R.S. 378-3 is amended to
H.R.S. 378-2.
B. COMPENSATORY DAMAGES
For the violation of H.R.S. 378-2, the Recommended Decision
concluded that Respondent should pay Complainant $40,000.00 in
damages as compensation for injury to his feelings, emotions, mental
well-being, personal integrity, and dignity. The Commission amends
the amount of compensatory damages to $50,000.00 because the loss of
both civil service and contractual employment caused Complainant
great stress, embarrassment, and loss of face. As a result of
Respondent's unlawful discriminatory conduct, Complainant lost other
job opportunities, could no longer support his family, and had
difficulty paying the mortgage on his home. Having to live with the
stress, embarrassment, and loss of face for three years justifies an
increase in the amount of compensatory damages.
C. ORDER
With the exception of the correction of the citations to H.R.S.
378-2, the non-reliance upon the administrative rules as the basis
for concluding Respondent committed an unlawful discriminatory
practice, and the increase in the amount of compensatory damages,
the Commission hereby adopts and incorporates the Proposed Findings
of Fact, Conclusions of Law and the Recommended Order as part of its
Final Decision and Order.
DATED: Honolulu, Hawaii
Amefil Agbayani, Chairperson
Daphne Barbee-Wooten, Commissioner
Josephine Epstein, Commissioner
Jack Law, Commissioner
Richard Port, Commissioner
Note: Pursuant to H.R.S. 91-14 any person aggrieved by a final
decision and order in a contested case is entitled to judicial
review by instituting a proceeding for judicial review within thirty
days after service of the certified copy of the final decision and
order.
_________________________________________________________________
footnotes:
1. The Recommended Decision relied, in part, upon the H.A.R.
because 12-46-181 states that the rules "reflect[] the protections
existing under state law protecting persons with handicapped status
and is declaratory of existing law".
