Collfin.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


LINDA C. TSEU, Executive ) Docket No. 95-001-E-R-S
Director, on behalf of the )
complaint filed by ) FINAL DECISION AND ORDER
SUSAN C. COLLINS, )
)
v. )
)
CEDERQUIST, INC., and ANDRES )
CORPUZ, )
)
)
Respondents. )
______________________________)


FINAL DECISION AND ORDER
The Hearings Examiner's Proposed Findings of Fact, Conclusions
of Law, and Recommended Decision ("Recommended Decision") were filed
on March 13, 1996. The Executive Director filed Written Exceptions
on April 12, 1996, requested oral argument, but did not file a
Statement in Support. Cederquist, Inc. ("Cederquist"), Respondent,
filed "Objections" on April 12, 1996. Andres Corpuz ("Corpuz"),
Respondent, filed Written Exceptions on April 12, 1996, requested
oral argument, and filed a Statement in Support on April 26, 1996.
Oral argument was held on May 28, 1996, 2:00 p.m. before
Commissioners Amefil Agbayani, Richard Port, Jack Law, Faye Kennedy,
and William Hoshijo. Karl K. Sakamoto, Esq., appeared on behalf of
the Executive Director[1]. Meyer M. Ueoka, Esq., appeared on behalf
of Corpuz, who was present. Cederquist was sent notice of the
hearing but did not appear or contact the Commission. Also present
were Linda C. Tseu, Executive Director, and Susan C. Collins
("Collins"), Complainant.

I. FINDINGS OF FACT
Based upon the exceptions, oral argument, and review of the
record, the Commission makes the following changes: Finding of Fact
("Finding") 1 (second sentence) is modified to change the year that
Collins joined the Union as "1986" instead of "1987." Finding 5
(first sentence) is modified as follows: "Complainant was assigned
to work with Corpuz for about a month at the airport job." Finding
8 (first sentence) is modified as follows: "On September 3, 1986,
Respondent Cederquist was authorized to do business in Hawaii as a
foreign corporation." Finding 35 (first sentence) is modified to
change the year that the crew's use of profanity stopped as "1990"
instead of "1995." The remaining portions of the above Findings are
not changed.
Findings 19 and 21 set forth the conduct by Corpuz and the crew
toward Collins. The Hearings Examiner had the opportunity to hear
the testimony and observe the demeanor of the witnesses, determine
credibility, and weigh the evidence. Based upon the exceptions,
oral argument, and review of the record, the Commission determines
that Findings 19 and 21 are supported by the record, and no
convincing reasons were provided for not adopting them. The
Commission hereby adopts the Proposed Findings of Fact in their
entirety with the above modifications and incorporates them in this
Decision.
The Commission also takes notice of the calendars for the years
1990 and 1991 submitted by Corpuz in its Motion to Take Judicial
Notice of 1990 and 1991 Calendars, filed on April 15, 1996. H.R.S.
 91-10(4).

II. THE CONDUCT OF THE CREW
Collins was an apprentice carpenter. As the only female
employee at the work site, she worked with as many as thirteen (13)
males. Finding 29. Her experience in this case reflects some of
the obstacles and barriers that a female faces when working in a
traditionally male-dominated industry.
On July 26, 1991, Cederquist submitted a Response, Exh. 3, to
Collins' complaint of discrimination filed on June 25, 1991. It
acknowledged that Collins had complained to Don Ternberg,
Cederquist's job superintendent, about the verbal abuse and foul
language and reported the harassment twice, and that Ternberg spoke
to Corpuz and another employee about it. Finding 21 states the most
of the crew used profanities "when they spoke to [Collins]" and
often talked about sex and told jokes about sex. Cederquist
contends that "[a] reasonable male could also find the language
offensive" but because it was not directed at Collins there should
be no liability for the acts of the crew. Objections, at 2. A
similar justification is given for Teresito Cabridilla's statements
about going home and making babies. Id.
Although profanity and sexual joking may be common at a work
site, an employer must take steps to address the situation if an
employee complains. Collins complained to Ternberg who told her
that such speech was common at construction sites and that she
should get used to it. Finding 26. He felt that her complaint was
"minute" and "far out." Id. The profanity continued, and Collins
had to complain to the union representative, Herman Nascimento,
Finding 31, who spoke to Ternberg and the crew. Findings 32, 33,
and 34. The profanity and sexual joking stopped after that.
Finding 35.
The use of profanity and sexual joking can create an
intimidating, hostile, and offensive work environment because of
sex. Cederquist contends that because such language would also be
offensive to a reasonable male it should not be held liable.
Objections, at 2. However, it is sufficient that a reasonable
victim, in this case a female, would find the language to be
offensive for there to be harassment because of her sex. Steiner v.
Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) (similar
conduct also directed at males does not excuse sexual harassment of
female); cert. denied, 115 S.Ct. 733 (1994). Even though a
reasonable male would also find the language offensive does not
excuse its adverse impact upon Collins, especially in this case,
because there is no evidence that any male ever complained about the
profanity or sexual joking.

III. THE CONDUCT OF CORPUZ
Corpuz was the working foreman and overall supervisor of the
carpenters employed by Cederquist. He served in a supervisory
capacity over Collins, approved her hiring, and exercised control
over her responsibilities. The Commission adopts Conclusion of Law
("Conclusion") A, 2 that Corpuz is an agent of Cederquist and is
personally liable as an employer under H.R.S.  378-1.
Corpuz constantly asked Collins to go drinking and to chicken
fights with him[2]. He asked her out on her first day, but she
refused and told him to stop asking. Finding 19a. Despite her
request to stop asking, he bothered her by continuing to ask her to
go drinking and to chicken fights with him. Finding 19d. In one
instance, Corpuz slapped her on the butt as he was leaving the area.
Finding 19b. In another instance, Corpuz offered her $100 to say "I
love you" in Ilocano. Finding 19c.
The constant invitations annoyed Collins. She felt miffed and
insulted. She tried to ignore them. She was upset and embarrassed
when Corpuz slapped her on the butt and offered her money to say "I
love you." Finding 20. The record contains much uncontradicted
medical evidence about the effects upon Collins of the unwelcome
conduct by Corpuz and the crew. Findings 44, 48, and 53.

IV. HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
H.R.S.  378-2(1)(A) prohibits discrimination because of sex in
the terms, conditions, and privileges of employment. Employees are
entitled to work in an environment free from harassment on the basis
of their sex. Harris v. Forklift Systems, Inc., 114 S.Ct. 367
(1993). The Commission rules prohibit hostile work environment
sexual harassment. H.A.R.  12-46-109 provides:
(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:
. . .
(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.
Corpuz argues that the conduct complained about was not sexual
in nature, as required under the rule, because it was not sexually
suggestive. Corpuz' Exceptions, at 44. The Commission disagrees
because the conduct was sexually suggestive. A male offering $100
to a female to say "I love you" is sexually suggestive. A male
repeatedly asking a female to go out despite her refusal is sexually
suggestive. A male slapping a female on the buttocks is sexually
suggestive. The jokes about sex were sexually suggestive. The
statements about making babies were sexually suggestive. Thus, the
conduct was sexual in nature.
H.A.R.  12-46-109(a)(3) prohibits conduct of a sexual nature
which creates a hostile or offensive working environment because
such conduct constitutes sex discrimination in violation of H.R.S.
 378-2(1)(A). A hostile or offensive environment exists "[w]hen
the work place is permeated with discriminatory intimidation,
ridicule, and insult" so that the conditions of employment are
altered or an abusive working environment is created. Harris, 114
S.Ct. at 370 (citation and internal quotation marks omitted.)
Having a lone female carpenter at a work site with as many as 13
male carpenters creates a great potential for hostile work
environment sexual harassment. Considering the record as a whole
and looking at the totality of the circumstances, in particular the
context of the incidents occurring in a male-dominated work
environment, the Commission adopts the Conclusion B, 1, that the
events occurred; Conclusion B, 2, that the conduct of the crew and
Corpuz were unwelcome; and Conclusion B, 3, that a reasonable woman
would consider such conduct sufficiently severe and pervasive to
create a hostile and offensive work environment.

V. CEDERQUIST'S RESPONSIBILITY FOR THE SEXUAL HARASSMENT
Cederquist did not have an express policy against sexual
harassment. Finding 15. It did not train its supervisors and
employees about sexual harassment. Id. Corpuz did not receive any
training from Cederquist. Tr. at 246. Cederquist only had an
informal grievance procedure whereby employees would discuss
problems with their supervisors or management. Finding 15.
When Collins complained to Ternberg, he downplayed her
complaints and took no action. He told her such speech was common
at construction sites and that she should get used to it. Finding
26. Cederquist did nothing to address her initial complaint.
Collins then had to complain to Nascimento, who actively intervened
on her behalf with Ternberg, Corpuz, and the crew. Nascimento's
efforts made Ternberg take some action, including speaking to the
crew and assigning Collins away from Corpuz. Findings 27-29, 30-35.
Without the involvement of the union representative, it appears that
Cederquist would not have taken any action at all.
H.A.R.  12-46-109(g) provides:
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.
Ternberg did not deal with Collins' initial complaint of sexual
harassment. In essence, Cederquist did not take steps to prevent
sexual harassment from occurring; and only minimal steps were taken
after Collins' second complaint to prevent it from recurring. An
employer, particularly one in a traditionally male-dominated
industry, should educate its supervisors and employees about sexual
harassment in order to prevent it from occurring. Upon receiving a
complaint of sexual harassment, an employer must take immediate and
effective corrective action. H.A.R.  12-46-109(d).

VI. ORDER PROVIDING REMEDIES FOR SEXUAL HARASSMENT
The Commission adopts the Recommended Decision that Collins is
entitled to a total of thirty thousand dollars ($30,000.00) in
compensatory damages from Cederquist for the sexual harassment.
Cederquist, as the employer of Corpuz and the crew, is responsible
and liable for their unlawful conduct. H.A.R.  12-46-109(c) and
(d). Cederquist failed to act upon Collins' complaints and did not
take immediate and effective corrective action to prevent further
sexual harassment from occurring. Doing nothing after the first
complaint and only speaking to the crew and separating Collins from
Corpuz after the second complaint were inadequate responses.
Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1993). Cederquist
should have inquired or investigated to determine what actually
happened and taken the necessary steps to address the problem. At
a minimum, Cederquist should have interviewed Collins, Corpuz, and
any witnesses and acted upon the results of the inquiry.
With respect to Corpuz' sexual harassment of Collins, the
Commission finds that he is jointly and severally liable with
Cederquist for three thousand dollars ($3,000.00) of the total of
thirty thousand dollars ($30,000.00) in compensatory damages. (In
other words, Corpuz must pay Collins up to $3,000.00 for his
violation of the law, if Cederquist makes no payments.) Corpuz'
conduct was egregious, reflective of a traditionally male-dominated
work environment, and resulted, in part, from his lack of training
on sexual harassment by Cederquist. Although lack of training is no
defense, the Commission believes there were mitigating factors to
impose greater liability upon Cederquist than Corpuz. In this case,
Corpuz only touched Collins once in passing. There was no pattern
of offensive physical contacts. The remaining conduct was verbal.
The "I love you" request only happened once. The constant requests
to go out annoyed Collins. Recommended Decision, at 26. Corpuz did
not participate in the crew's profanity or sexual joking. The
Commission hereby modifies the compensatory damages awarded against
Corpuz.
The other recommendations for relief in the Recommended
Decision are adopted by the Commission. Cederquist and Corpuz must
have the Notice in the Recommended Decision published, and
Cederquist is ordered to cease and desist from discriminating and to
develop a non-discrimination policy. The Commission adopts the
remaining Conclusions of Law and incorporates them in this Decision.


DATED: Honolulu, Hawaii


Amefil Agbayani, Chairperson




William Hoshijo, Commissioner




Faye Kennedy, Commissioner





Jack Law, Commissioner





Richard Port, Commissioner


Notice: Under H.R.S.  91-14(b), an aggrieved person may file a
proceeding for review in the circuit court within thirty days of the
service of the certified copy of the final decision.

------------------------------
footnotes:

1. The Commission through the Executive Director is required
to provide counsel on behalf of the complaint. H.R.S.  368-14(a).
At administrative hearings where the complainant has not intervened
as a party, the party bringing the action is the Executive Director,
on behalf of the complaint.

2. Previously when they worked together at the airport job,
Corpuz asked Collins to go out to drinking and to go to chicken
fights. Collins refused these invitations. Finding 6.