Hemadra.txt
CIVIL RIGHTS COMMISSION
STATE OF HAWAII
WILLIAM D. HOSHIJO, ) Docket No. 96-008-E-NO-MS
Executive Director, on )
behalf of the complaint ) HEARINGS EXAMINER'S FINDINGS
filed by BASSAM A. HEMAIDAN, ) OF FACT, CONCLUSIONS OF
) LAW AND RECOMMENDED ORDER;
v. ) EXHIBIT 1; APPENDIX A.
)
LIFE SUPPORT SYSTEMS )
HAWAII, INC. )
)
Respondent. )
______________________________)
HEARINGS EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER
I. INTRODUCTION
1. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.
2. Summary of the Parties' Contentions
The Executive Director asserts that Respondent Life Support
Systems Hawaii, Inc. violated H.R.S. 378-2(1)(C) and H.A.R.
12-46-121 et. seq. and 12-46-171 et. seq. by making unlawful
inquiries about Complainant's ancestry and marital status during a
pre-employment interview.
Respondent admits that it asked Complainant and other
applicants questions about their marital status. Respondent asserts
that it does not recall asking Complainant questions about his
ancestry or national origin and alleges that such issues may have
been discussed as personal banter. Finally, Respondent contends
that Complainant did not suffer emotional and mental distress to the
extent alleged by the Executive Director.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, the Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.
II. FINDINGS OF FACT[1]
1. Complainant Bassam A. Hemaidan is a Lebanese-Italian male.
In 1991 he moved from Los Angeles, California to Hawaii.
Complainant was born in Beirut, Lebanon. In 1975, when Complainant
was twelve years old, he and his family moved from Lebanon to Los
Angeles. (Tr. 48-49, 90)[2]
2. From February 1993 to June 1994, Complainant worked for
approximately two months at General Nutrition Center, and returned
to Los Angeles for approximately three months to care for his
father. During the remainder of this period (approximately 10
months), Complainant was unemployed. While unemployed, Complainant
received unemployment insurance and had weekly job interviews. At
that time Complainant's wife, Marilyn Hemaidan, worked as a
secretary for Hilton Hawaiian Village and they had a young son. The
family's financial situation was precarious. Complainant felt that
as "the man of the house", he should be working, providing food and
taking care of his family. Accordingly, he felt he had to find a
stable, full time job with a future. (Tr. at 60-61, 83-88, 102-109,
125-126, 136, 146)
3. Respondent Life Support Systems Hawaii, Inc. is a Hawaii
corporation which conducts safety inspections of life rafts and life
vests on airplanes and boats. It employs three to five employees
and has been doing business in Honolulu, Hawaii for over 20 years.
(Stipulated Fact Nos. 1, 2; Tr. at 162, 176-177; Ex. 1 p. 20, Ex.
5a)
4. From about January 1994 Gary DiGirolamo (hereinafter
"DiGirolamo") became the owner, president and chief operating
officer of Respondent. Prior this, the company had problems with
high staff turnover. (Tr. at 5, 18, 28-29, 162; Ex. 1 p. 13-14)
5. In April 1994 Respondent had an opening for a shop helper
position. The shop helper's duties were to assist the company's
life raft technicians in taking out, testing and repacking life
rafts and life vests. Shop helpers were expected to eventually
become life raft technicians. In order to become a life raft
technician, a shop helper had to be trained and certified by the
Federal Aviation Administration, the U.S. Coast Guard and at least
seven different manufacturers (a total of 8-10 training sessions) to
test and certify the safety of life rafts and life vests. Each
training session required approximately 5-7 days of out of state
travel. Respondent company incurred costs of over $10,000 per
employee to complete these training sessions. (Stipulated Fact No.
3; Tr. at 7, 176-181; Ex. 1 p. 20-22, Ex. 5a)
6. Because of the time and costs involved in training shop
helpers to become certified life raft technicians and its past
turnover problems, Respondent sought applicants who planned to stay
in Hawaii for an extended period of time and who could travel out of
state for up to eight weeks. It also sought applicants who had
marine/aviation experience and/or were fast learners, hard workers,
responsible, and who could lift and pack life rafts, which weighed
up to 500 pounds. (Stipulated Fact No. 8; Tr. at 8-9, 12, 17-18,
28-29, 178; Ex. 1 p. 16-18, Ex. 5a)
7. DiGirolamo was in charge of the hiring process. However,
because he wanted to continue to foster the "family atmosphere"
among Respondent's employees, DiGirolamo would not hire some one who
would not get along with the existing staff. DiGirolamo saw the
interview process as a way to "get to know" applicants in order to
determine whether they would be compatible with existing staff.
(Tr. at 7, 175-176; Ex. A)
8. Some time prior to April 20, 1994 Respondent ran an ad for
its shop helper position in the Sunday Honolulu Advertizer. (Tr. at
7; Ex. 1 p. 15, Ex. 12)
9. On a Sunday prior to April 20, 1994, Complainant read
Respondent's shop helper ad and called Respondent's office. On
April 20, 1994 Complainant went to Respondent's office and filled
out an employment application form. A few days later Complainant
called Respondent's office and obtained an interview date.
(Stipulated Fact No. 4; Tr. at 41-45; Ex. 1 p. 16, Ex. 8)
10. On April 26, 1994 DiGirolamo interviewed Complainant.
During the course of the interview, DiGirolamo asked Complainant how
he pronounced his last name. He then asked Complainant where he was
from. Complainant stated that he was from California. DiGirolamo
then said, "No, what nationality are you?" When Complainant stated
that he was Lebanese, DiGirolamo asked Complainant where he was
born. After Complainant replied that he was born in Beirut,
Lebanon, DiGirolamo then asked Complainant something about how he
felt about terrorist activity or bombings in Lebanon. Complainant
stated that he hadn't been in Lebanon for a long time and didn't
know what was happening there. DiGirolamo then proceeded to ask
Complainant what languages he spoke, when Complainant moved to
California, why his family moved to California, if they still lived
there and whether Complainant was a U.S. citizen. (Stipulated Fact
Nos. 5, 7; Tr. at 8, 36-37, 45-50; Exs. 16, 17, A)
11. Respondent did not know that such questions were
discriminatory and unlawful, and would not have asked them if it had
known so. In addition, DiGirolamo did not ask the above questions
in order to screen out Complainant because of his ancestry or
national origin. DiGirolamo asked such questions because he wanted
to "get to know" Complainant and because he wanted to determine
whether Complainant was likely to stay in Hawaii. (Tr. at 165-168,
170-171, 175-176)
12. During the course of the interview DiGirolamo also asked
Complainant questions about his marital status. DiGirolamo asked
Complainant why he came to Hawaii. When Complainant replied that he
moved to Hawaii because his wife was local, DiGirolamo confirmed
that Complainant was married and then asked questions about
Complainant's wife's maiden name, her nationality, her age, where
she worked, what her occupation was, who her supervisor was, whether
she had family in the islands, her siblings' names and where they
lived. DiGirolamo also asked Complainant if he had any children.
When Complainant replied that he had a son, DiGirolamo asked how old
Complainant's son was, what his son's name was and who was taking
care of him. DiGirolamo then explained that the shop helper job
involved obtaining out of state certification and asked whether the
required travel would get in the way of childcare for Complainant's
son. (Tr. at 20-21, 50-54, 170-171; Exs. 16, 17, A)
13. DiGirolamo asked the above marital status and family
related questions because he believed that being married and having
a family indicated that an applicant would be responsible and would
stay in Hawaii. In addition, DiGirolamo asked the above questions
to determine health insurance policy coverage and whether out of
state travel would be a problem for an applicant's family.
DiGirolamo also asked Complainant these questions because he was
trying to be friendly and was trying to determine if they knew any
of the same people. Again, Respondent did not know that such
questions were discriminatory and would not have asked them if it
knew they were unlawful. (Tr. at 10-14, 21, 29, 32-33, 50-52, 165-
168, 173, 175-176, 181-182; Exs. 5a, A)
14. At some point in the interview, DiGirolamo asked his shop
manager, Ruford Nacino, to sit in and ask Complainant questions.
Nacino asked Complainant how long he had lived in Hawaii, whether
Complainant planned to stay in Hawaii, and why there were gaps in
Complainant's employment history. They also discussed whether
Nacino knew Complainant's in-laws. (Tr. at 55-58, 176; Ex. 17)
15. After returning home from the interview, Complainant
became angry about the interview questions regarding his
nationality, wife and family. Complainant felt that the questions
were personal, unprofessional, discriminatory and had nothing to do
with the shop helper job duties. Complainant thought that
Respondent would use such questions to illegally screen out people
of certain nationalities and people who were married. Complainant
also thought he wasn't going to get the shop helper job because he
was Lebanese and married. (Tr. at 59-61, 91-92, 112-113, 136, 147-
151; Ex. 16)
16. Later that afternoon, Mrs. Hemaidan returned home and they
discussed the interview. Complainant was still angry because he
felt the questions regarding his ancestry, family and marital status
were personal, illegal and shouldn't have been asked. Mrs. Hemaidan
could not relate to Complainant's anger and frustration. Being from
Hawaii, she felt such questions were not unusual, stated something
like, "Maybe this is what it takes to get a job", and they began to
argue. (Tr. at 59-61, 136, 140, 152-153)
17. On or about April 28, 1994 (two days after the interview)
Respondent notified Complainant by letter that he was not selected
for the shop helper position. (Stipulated Fact No. 10; Exs. 4, 17)
18. Complainant then believed he was not hired because of his
Lebanese ancestry and because he was married and had a child. This
mistaken belief, combined with being unemployed for 10 months, made
Complainant feel that there was racism in Hawaii and that he might
never find a good job in the islands because of his ancestry. For
approximately 2-3 months he became more angry and upset, and
discouraged from continuing his job search. He became hostile,
withdrawn and distant from his wife, son and friends and wanted to
move back to Los Angeles. Complainant and his wife continued to
argue about his reactions to the April 26, 1994 interview and argued
about leaving Hawaii. One evening Complainant phoned his mother,
told her he wanted to return home to Los Angeles and then argued
with her when she encouraged him to stay in Hawaii. (Tr. at 60-75,
130-132, 134, 138-142, 147-151, 155-156; Exs. 16, 17)
19. Respondent hired a single Native American female, Debra
Russell, for the shop helper position. Respondent hired Russell
because she was a retired navy aviation mechanic who conducted
aircraft safety inspections and repairs for 20 years and had
experience working with life saving equipment. Respondent favorably
considered Complainant's marital status and did not consider his
ancestry in its decision not to hire him.[3] In fact, if Russell
had declined the position, Respondent would have hired Complainant.
(Stipulated Fact No. 11; Tr. at 12, 29-30, 33-34, 169, 170-171, 178-
179; Ex. 1 p. 46, Exs. 2, 3, 5a, 5b, A)
20. On August 9, 1994 Complainant filed a complainant with
this Commission. In his complaint, Complainant alleges that he was:
1) asked unlawful pre-employment questions regarding his marital
status and national origin; and 2) denied the position of shop
helper because of his marital status and national origin.
III. CONCLUSIONS OF LAW[4]
A. Jurisdiction
H.R.S. 378-1 defines "employer" to mean
. . . any person . . . having one or more employees, but
shall not include the United States.
The statute in turn defines "person" to include corporations.
During the April 26, 1994 interview, Respondent was a corporation
which employed more than one employee. I therefore conclude that
Respondent is an employer under H.R.S. 378-l and is subject to the
provisions of H.R.S. Chapter 378.
B. LIABILITY
1. Marital Status Discrimination
The Executive Director asserts that Respondent violated H.R.S.
378-2(1)(C) and H.A.R. 12-46-121 et. seq. when DiGirolamo
asked Complainant questions about his marital status during the
April 26, 1994 interview.
H.R.S. 378-2(1)(C) states in relevant part:
It shall be an unlawful discriminatory practice:
(1) Because of . . . marital status . . .
(C) For any employer . . . to make any inquiry in
connection with prospective employment, which
expresses, directly or indirectly, any limitation,
specification or discrimination . . .
H.A.R. 12-46-121 states:
General policy. Chapter 378, HRS, prohibits any employer or
other covered entity from discriminating in employment because
of the individual's marital status. Chapter 378, HRS, and
policies apply to males and females alike.
H.A.R. 12-46-123(b) states in relevant part:
(b) A pre-employment inquiry or application shall not ask:
. . .
(2) Single, married, divorced, widowed, separated, etc.;
or
(3) Name and ages of spouse and children; or
(4) Spouse's place of employment . . .
Pre-employment inquiries regarding an applicant's marital
status, however, do not violate the above statute and rules if they
fall under one of the exceptions contained in H.R.S. 378-3. For
instance, under H.R.S. 378-3(2) and H.A.R. 12-46-122, employers
may establish marital status as a bona fide occupational
qualification (BFOQ) for a job position if marital status is
reasonably necessary to the normal operation of a particular
business and has a substantial relationship to the functions and
responsibilities of the prospective employment.[5]
In the present case, Respondent admits that DiGirolamo asked
Complainant and other applicants questions regarding their marital
status. Complainant also credibly testified that DiGirolamo asked
questions about Complainant's wife's maiden name, her age, her place
of employment, the names and location of her family members, as well
as the name and age of Complainant's son.
Respondent asserts that it asked such questions because it was
trying to determine whether Complainant: a) planned to stay in
Hawaii; b) was responsible; and c) could travel out of state for
extended periods of time. Respondent believed that being married
and having a family was an indication of an applicant's
dependability and longevity in Hawaii. However, Respondent did not
present evidence to show any correlation between being married and
having such traits. In fact, Respondent found such traits in an
unmarried and apparently childless person when it hired Russell.[6]
Because Respondent's marital status inquiries do not fall under
any of the exceptions found in H.R.S. 378-3, I conclude that
Respondent violated 378-2(1)(C) and H.A.R. 12-46-121 and 12-46-
123(b).
2. Ancestry Discrimination
The Executive Director asserts that Respondent violated H.R.S.
378-2(1)(C) and H.A.R. 12-46-171 et. seq. when it asked
Complainant questions about his ancestry during the April 26, 1994
interview.
H.R.S. 378-2(1)(C) states in relevant part:
It shall be an unlawful discriminatory practice:
(1) Because of . . . ancestry . . .
(C) For any employer . . . to make any inquiry in
connection with prospective employment, which
expresses, directly or indirectly, any limitation,
specification or discrimination;
H.A.R. 12-46-171 states in relevant part:
General policies. (a) Chapter 378, HRS, prohibits any
employer . . . from discriminating in employment because of
ancestry, except where ancestry is a bona fide occupational
qualification.
H.A.R. 12-46-177(b) states in relevant part:
(b) A pre-employment interview . . . shall not include
questions . . . that would tend to disclose a person's
ancestry. Examples of such questions . . . are:
(1) "Of what country are you a citizen?"
. . .
(4) Birthplace of applicant;
. . .
(6) Applicant's nationality, ancestry, national origin,
descent, or parentage;
(7) Language commonly used by applicant;
(8) How applicant acquired the ability to read, write or speak
a foreign language . . .
Therefore, pre-employment questions regarding an applicant's
ancestry violate the above statute and rules unless ancestry is a
BFOQ.
In the present case, Complainant credibly testified that
Respondent asked him questions about his nationality, where he was
born, when he immigrated to the United States, whether he was a U.S.
citizen and what languages he spoke. Respondent did not assert that
ancestry was a BFOQ, or was in any way relevant to the shop helper
position. While it explained that it would not have asked such
questions if it were aware of the law, it also admitted that
ignorance of the law is not a defense. (Tr. at 162, 165)
I therefore conclude that Respondent is liable for violating H.R.S.
378-2(1)(C) and H.A.R. 12-46-171 and 12-46-177(b).
C. REMEDIES
The Executive Director requests that Respondent be ordered to
pay Complainant $35,000 compensatory damages for emotional distress.
The Executive Director also seeks various forms of equitable relief.
1. Compensatory Damages
Pursuant to H.R.S. 368-17, the Commission has the authority to
award compensatory damages for any pain, suffering, embarrassment,
humiliation, emotional distress, loss of enjoyment of life or other
injury Complainant suffered as a result of Respondent's unlawful
pre-employment inquiries.[7] The amount awarded as compensatory
damages is generally based on a consideration of the extent to which
Respondent's discriminatory conduct caused the harm and the extent
to which other factors, if any, also caused the harm.[8] It should
also reflect the nature, severity and duration or expected duration
of the harm. Restatement of Torts 2d 905 (1979); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. N 915.002 (July 14, 1992), EEOC Compliance
Manual 603; Montalvo v. Lapez, 77 Haw. 282, 306 (1994).
Complainant claimed that solely as a result of Respondent's
unlawful inquiries, he became upset and angry, lost his self esteem,
became discouraged from continuing his job search, became distant
from his wife, child and friends, lost his appetite, lost weight,
lost sleep, argued with his wife almost every other day, argued once
with his mother and felt stressed for approximately 2 -3 months
after the April 26, 1994 interview. (Tr. at 59-75) Complainant
stated that after he became employed in June 1994 he felt better,
but still had some lingering distress. (Tr. at 130-132 134)
Complainant testified that he suffered the above emotional injuries
because he felt Respondent's inquiries were "personal" and
"unprofessional". (Tr. at 112-113)
I find Complainant's testimony regarding the nature and extent
of his emotional injuries caused solely by Respondent's unlawful
inquiries not wholly plausible. This is because: a) Complainant's
demeanor, manner and tone of voice did not appear to be credible
during this portion of his testimony; b) his testimony conflicted;
and c) his testimony was inconsistent with his prior statements and
the testimony of Mrs. Hemaidan.[9]
Complainant maintained that none of his emotional distress
stemmed from assuming that Respondent's inquiries would be used to
screen him from the shop helper position, or believing that
Respondent did not hire him because he was Lebanese and married.
Complainant testified that he did not know if Respondent's questions
were illegal, that he had no thoughts as to whether Respondent might
use such inquiries to screen him from the shop helper position, and
that he had no idea why Respondent didn't hire him. (Tr. at 112-
116, 128-129) Complainant also denied suffering any emotional
distress from being unemployed for 10 months. (Tr. at 119-121)
Such testimony is conflicting and inconsistent with
Complainant's prior statements. At the hearing, Complainant
testified that after the interview he was "so angry", "ticked off"
and felt "[I] should be working . . . and like, cannot get a job
because where I'm from or . . . because of my name, my ancestry".
(Tr. at 60-61) He also stated, ". . . I thought having kids, maybe,
you know, having a child, keep me back from not working . . . I just
came out feeling, why should I have kids? . . . Why should I be
married?" (Tr. at 69)
In his May 10, 1994 pre-complaint questionnaire Complainant
wrote that he was "stripped from my rights as an applicant"; that
the inquiries "show that [DiGirolamo] was definitely screening
applicants beyond just education and work experiense [sic]"; and
indicated that he believed he was refused employment because of his
race, marital status and national origin/ancestry. (Ex. 16) In his
June 15, 1994 intake interview Complainant stated that he felt
Respondent failed to hire him because of his marital status and
race/ancestry. (Ex. 17) Finally, in his complaint filed on August
9, 1994 Complainant states, "I believe that I was subjected to
discriminatory practices which included improper pre-employment
inquiries and denied the position of Shop Helper because of my
marital status (married) and ancestry/national origin (Lebanese)".
(Emphasis added).
Furthermore, Complainant's testimony is contrary to the
testimony of his wife. Mrs. Hemaidan recalled that after the April
26, 1994 interview, Complainant stated that he felt certain
questions were illegal and discriminatory, and that he wasn't going
to get the job because of his national origin. (Tr. at 136, 151,
154-155) Mrs. Hemaidan stated that prior to the interview,
Complainant was aware of racism in Hawaii, but the interview was the
first time Complainant felt he had experienced such racism in the
islands. (Tr. at 138-139, 147-149) She also testified that
Complainant began to feel that he would not be able to secure a
decent job in Hawaii because of his ancestry, and often stated that
he wanted to leave the islands. (Tr. at 138-139, 141)
Thus, the weight of the evidence shows that immediately after
the interview, Complainant thought that Respondent's inquiries were
discriminatory and illegal and that they would be used to deny him
the shop helper position. The evidence also shows that 2-3 days
after the interview (upon receipt of Respondent's letter notifying
him that the position was filled), Complainant believed that
Respondent did not hire him because of his martial status and
ancestry. The evidence also shows that these perceptions caused
Complainant to become very upset, irritated, short tempered and
distant from his family.
Finally, Complainant's allegation he suffered no emotional
distress from being unemployed for 10 months is unlikely given his
testimony regarding his need to secure employment. Complainant
stated that as "the man of the house", it was very important for him
to feed and take care of his family and that he had to find a stable
job that had decent pay and a future. Complainant indicated that
his unemployment caused a financial strain on the family because
they would not have been able to survive without his unemployment
insurance benefits. (Tr. at 105-106, 108-109) Mrs. Hemaidan
testified that during Complainant's 10 months of unemployment, he
had weekly job interviews, but could not secure a job. She also
testified that Complainant was frustrated and upset about his
unemployment. (Tr. at 146, 156)
In summary, I find that Respondent's unlawful inquiries
initially caused Complainant to become upset and angry because he
felt such questions were personal, unprofessional and illegal.
However, I also find that the major portion and extent of
Complainant's emotional distress stemmed from other factors, such
as: a) Complainant's mistaken assumption that Respondent would use
such inquiries to screen him from the job because of his ancestry
and marital status; b) his mistaken belief that Respondent did not
hire him because of his ancestry and marital status; c) being
unemployed for 10 months; and d) believing that he would not be
able to secure a good job in Hawaii because of his ancestry.
Based on the above considerations, I determine that $7,000 is
appropriate compensation for Complainant's emotional distress caused
by Respondent's unlawful inquiries.
2. Equitable Relief
The Executive Director also seeks to have the Commission:
a) issue an order directing Respondent to cease and desist
from further discriminatory practices against other
applicants or employees based on their ancestry/national
origin and marital status;
b) require Respondents to submit to the Executive Director
for approval a policy statement against employment
discrimination which:
- defines all bases of employment discrimination;
- defines the types of unlawful inquiries;
- contains procedures for submitting complaints to
Respondent and to the Hawaii Civil Rights
Commission;
- contains procedures for Respondent to promptly,
fully and objectively investigate complaints that
are submitted to it;
- contains disciplinary measures Respondent will take
to punish offenders;
c) require Respondent to permanently post such policy
statement, within fourteen (14) days of the Executive
Director's approval, in a conspicuous place on its
premises;
d) require Respondent to conduct training on such policy
statement, within fourteen (14) days of the Executive
Director's approval, for its managers and supervisors;
e) require Respondents to reimburse the Executive Director
the costs of publishing the results of this case in the
Honolulu Advertiser (or other newspaper having a general
circulation in the City and County of Honolulu) Sunday
edition and once during the following week within 6 weeks
of the Commission's final order in this case.
Because Respondent asked Complainant unlawful pre-employment
questions, I recommend that the Commission order Respondent to
immediately cease and desist from making further discriminatory pre-
employment inquiries or engaging in any other discriminatory
practices based on ancestry and marital status against other
applicants and current employees.
Respondent has an Equal Employment Opportunity policy statement
which contains procedures for reporting discriminatory conduct and
disciplinary measures. (Ex. 4) Such policy statement, however,
does not state all the bases for illegal discrimination, does not
discuss unlawful inquiries, does not include procedures for filing
complaints with this Commission, and does not contain procedures for
investigating internal complaints. I therefore recommend that the
Commission order Respondent to revise its policy statements to
include the above and to submit such revised statement to the
Executive Director for approval within thirty (30) days of this
Commission's final decision.
The Commission should also order Respondent to post the revised
policy and conduct training on such policy with its managers and
supervisors within fourteen (14) days of the Executive Director's
approval.
The best way to publicize this decision to the public is to
publish the attached Public Notice (Exhibit 1) in the Honolulu
Advertiser (or in a newspaper having a general circulation in
Honolulu, Hawaii) Sunday edition and one following weekday.
IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondent Life Support Systems
Hawaii, Inc. violated H.R.S. 378-2(1)(C) and H.A.R. 12-46-121,
12-46-123(b), 12-46-171 and 12-46-177(b) by asking Complainant
Bassam A. Hemaidan unlawful pre-employment questions regarding his
ancestry and marital status.
For the violations found above, I recommend that pursuant to
H.R.S. 368-17, the Commission should order:
1. Respondent to pay Complainant $7,000 as damages in
compensation for his emotional injuries caused by Respondent's
unlawful inquiries.
2. Respondent to immediately cease and desist from making
further discriminatory pre-employment inquiries or engaging in any
other discriminatory practices on the basis of ancestry and marital
status against other applicants and current employees.
3. Respondent to revise its Equal Employment Opportunity
policy statement within thirty (30) days of this Commission's final
decision in this matter to: a) state all the bases for illegal
discrimination; b) discuss unlawful inquiries; c) include
procedures for filing complaints with this Commission; and
d) contain procedures for investigating internal complaints.
4. Respondent to post such revised policy, within fourteen
(14) days of the Executive Director's approval, in a conspicuous
place on its premises.
5. Respondent to conduct training on such policy with its
managers and supervisors within fourteen (14) days of the Executive
Director's approval.
6. Respondent to reimburse the Executive Director for costs
incurred in publishing the attached Notice (Exhibit 1) in the
Honolulu Advertiser (or a newspaper having a general circulation in
the City and County of Honolulu) Sunday edition and on one following
weekday within 6 weeks of the Commission's final decision in this
matter.
Dated: Honolulu, Hawaii, July 11, 1997.
HAWAII CIVIL RIGHTS COMMISSION
/s/____________________________
LIVIA WANG
Hearings Examiner
Copies sent to:
Karl K. Sakamoto, Esq. HCRC Deputy Director
Gary DiGirolamo, Life Support Systems Hawaii, Inc.
EXHIBIT 1
PUBLIC NOTICE
published by order of the
HAWAII CIVIL RIGHTS COMMISSION
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
STATE OF HAWAII
After a full hearing, the Hawaii Civil Rights Commission has
found that Respondent Life Support Systems Hawaii, Inc. violated
Hawaii Revised Statutes Chapter 378, Employment Discrimination, and
Hawaii Administrative Rules 12-46-121, 12-46-123, 12-46-171 and
12-46-177 when it made unlawful pre-employment inquiries regarding
an applicant's marital status, his wife's maiden name and age, his
wife's place of employment, his child's name and age, and the
applicant's citizenship, birthplace, nationality, national origin
and languages that the applicant spoke.
(William D. Hoshijo, Executive Director, on behalf of the complaint
filed by Bassam A. Hemaidan v. Life Support Systems Hawaii, Inc.,
Docket No. 96-008-E-NO-MS, [date of final decision] 1997).
The Commission has ordered Respondent company to pay for the
publication of this Notice and to:
1) Pay that applicant an award to compensate him for
emotional injuries he suffered.
2) Immediately cease and desist from further discriminatory
practices on the basis of marital status and ancestry.
4) Require Respondent company to revise its Equal Employment
Opportunity policy and conduct training on such policy.
5) Post such revised policy in a conspicuous place on company
premises.
DATED: ______________________________
BY: ______________________________
Authorized Agent for
Life Support Systems Hawaii, Inc.
APPENDIX A
On August 9, 1994 Complainant Bassam A. Hemaidan filed a
complaint with this Commission alleging that Respondent Life Support
Systems Hawaii, Inc. subjected him to improper pre-employment
inquiries and denied him the position of shop helper based on his
marital status and ancestry.
On December 11, 1996 the complaint was docketed for hearing and
a Notice Of Docketing Of Complaint was issued.
The Executive Director filed its Scheduling Conference
Statement on December 30, 1996. A scheduling conference was held on
January 22, 1997 and the Scheduling Conference Order was issued that
day. On April 3, 1997 an Amended Scheduling Conference Order was
issued.
On May 9, 1997 notices of hearing and pre-hearing conference
were issued. On May 15, 1997 the Executive Director filed its pre-
hearing conference statement. On May 27, 1997 a pre-hearing
conference was held and on that date a pre-hearing conference order
was issued.
Pursuant to H.R.S. Chapters 91 and 368, the contested case
hearing on this matter was held on June 2 and 3, 1997 at the Hawaii
Civil Rights Commission conference room, 830 Punchbowl Street, room
411, Honolulu, Hawaii before the undersigned Hearings Examiner. The
Executive Director was represented by Deputy Director Karl K.
Sakamoto. Complainant Hemaidan was present during portions of the
hearing. Respondent was represented by its President, Gary
DiGirolamo, who waived Respondent's right to be present during
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closing arguments.
Pursuant to a request by the Hearings Examiner, on June 6, 1997
the Executive Director submitted Exhibits 15, 16, 17 and A to the
Hearings Examiner. On June 6, 1997 these Exhibits were labeled and
admitted into evidence.
On June 23, 1997 the Executive Director filed a post-hearing
brief.
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footnotes:
1. As a preliminary matter, this Hearings Examiner has
considered the proposed findings of fact and post-hearing arguments
filed by the Executive Director. To the extent that the Executive
Director's proposed findings of fact are in accord with the findings
of fact stated herein, they are accepted, and to the extent that
they are inconsistent, they are rejected. In addition, some of the
proposed findings are omitted because they are irrelevant or not
necessary to determine the material issues in this case.
To the extent that the following findings of fact also contain
conclusions of law, they shall be deemed incorporated into the
conclusions of law.
2. Unless otherwise indicated, "Tr." preceding a page number
refers to the transcript of the contested case hearing held on June
2-3, 1997; "Ex." followed by a number refers to the Executive
Director's exhibits; "Ex." followed by a letter refers to
Respondent's exhibits.
3. At the time the complaint was filed, Respondent had four
employees: a single Filipino male, a single Native American female,
a married Black Jamaican male, and a married Mexican female. (Ex.
A)
4. To the extent that the following conclusions of law also
contain findings of fact, they shall be deemed incorporated into the
findings of fact.
5. The burden of proving that marital status is a BFOQ rests
upon the employer and such exception is strictly and narrowly
construed. H.A.R. 12-46-122. Accordingly, this Commission has
held that in order to establish a BFOQ, employers are required to
show, inter alia, that the essence of a business operation would be
undermined by the hiring or retention of persons in the protected
class. In Re Shaw / Sam Teague, Ltd. et al., Docket No. 94-001-E-
P; March 3, 1995.
6. Respondent could have determined stability, responsibility
and the ability to travel out of state without regard to marital
status by asking: "How long do you plan to live in Hawaii?"; "Can
you commit to this job for x years?"; "Can you describe (or
submit references which describe) any past employment or personal
experiences which demonstrate your ability to act or work and
responsibly?"; or "Can you travel out of state for periods of up to
x weeks per year?"
7. I do not find or conclude, and the Executive Director does
not claim, that Respondent screened out and/or failed to hire
Complainant because of his marital status or ancestry. The evidence
shows that Respondent preferred applicants who were married with
children and reacted favorably to Complainant's married status. The
evidence also shows that Respondent did not consider Complainant's
Lebanese ancestry when it chose not to hire him. Therefore, because
Respondent's only discriminatory conduct was its unlawful inquiries,
Complainant may recover compensatory damages only for the emotional
distress which resulted from the unlawful inquiries.
8. Complainant therefore may not recover compensatory damages
for emotional distress caused by participation in the HCRC
investigation and hearing process. Complainant testified that after
he secured employment in June 1994, most of his emotional distress
abated. Complainant claimed, and the Executive Director concedes,
that Complainant felt stressed again in April 1996 only after he
started to prepare for the conciliation and hearing in this case.
(See, Tr. at 75, 80-81, 132-133; Executive Director's Post Hearing
Memorandum of Law at 7.) Therefore, the substantial factor which
brought about Complainant's 1996 emotional distress was his
participation in the HCRC hearing process, not Respondent's initial
discriminatory conduct. See, Rountree v. Glickman, EEOC Appeal No.
01931906, 1995 WL 413533 (July 7, 1995); reconsideration denied,
EEOC Appeal No. 01941906, 1996 WL 77396 (February 15, 1996)
(compensatory damages not available for emotional distress and
depression caused by the stress of participating in the EEO
process).
9. Complainant's demeanor during Mrs. Hemaidan's testimony also
appeared to affect portions of her testimony.
