Hemafin.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


WILLIAM D. HOSHIJO, ) Docket No. 96-008-E-NO-MS
Executive Director, on )
behalf of the complaint )
filed by BASSAM A. HEMAIDAN, )
)
v. )
)
LIFE SUPPORT SYSTEMS )
HAWAII, INC. )
)
Respondent. )
______________________________)



FINAL DECISION AND ORDER
The Hearings Examiner's Proposed Findings of Fact, Conclusions
of Law, and Recommended Order ("Recommended Decision") were filed on
July 11, 1997. The Executive Director filed Exceptions on July 28,
1997. Respondent did not file Exceptions.
Oral argument was held on September 16, 1997, 1:00 p.m. before
Commissioners Claudio Suyat, Jack Law, Faye Kennedy, Allicyn Hikida-
Tasaka, and Harry Yee. Karl K. Sakamoto, Esq., appeared on behalf
of the Executive Director. Respondent was notified of the hearing
by certified mail, return receipt requested, but did not appear or
contact the Commission. The signed return receipt was dated July
14, 1997, and received by the Commission on July 15, 1997. Also
present at the hearing were William D. Hoshijo, Executive Director,
and Bassam A. Hemaidan ("Complainant").

I. FINDINGS OF FACT
Based upon the exceptions, oral argument, and review of the
entire record, the Commission makes the following change: Finding of
Fact 18 is hereby modified to eliminate the word "mistaken" in the
second sentence. The reasons for this change are explained below.
Based upon the Executive Director's representation at oral argument
that there is no challenge to the factual and credibility findings,
Oral Argument Transcript at 2, the Commission adopts and
incorporates the Hearings Examiner's Proposed Findings of Fact, as
amended herein, in their entirety and incorporates them into the
Final Decision.

II. CONCLUSIONS OF LAW
It is an unlawful discriminatory practice to make an adverse
employment decision because of an individual's protected basis[1],
such as ancestry or marital status. H.R.S.  378-2. When
information about an applicant's protected basis is not readily
apparent at a job interview, an employer making an inquiry into the
protected basis puts the applicant in an awkward position. Despite
any reservations, the applicant may feel compelled to answer because
a refusal may reflect adversely upon qualities important to an
employer, such as candor and being a team player. However, the
inquiry allows an employer to obtain information about the
applicant's protected basis and possibly use it in making an
employment decision. Such inquiries are inherently suspect due to
the potential to facilitate unlawful discriminatory practices when
there is no demonstrable need for the information[2].
Unless there is a bona fide occupational qualification or other
statutory exemption, an employer has no legitimate reason to inquire
about an individual's protected basis. H.R.S.  378-2(1)(C)
provides that:
It shall be an unlawful discriminatory practice:
(1) Because of . . . ancestry [or] 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 .
. .
Commission rules specifically prohibit an employer from making a
pre-employment inquiry into whether an applicant is married, the
names and ages of spouse and children, or spouse's place of
employment. H.A.R.  12-46-123(b)(2), (3), and (4). Commission
rules also prohibit pre-employment questions that would "tend to
disclose a person's ancestry" and lists as examples questions about
birthplace, nationality, and parentage. H.A.R.  12-46-177(b)(4),
and (6).
The Findings of Fact establish that Respondent asked numerous
questions about Complainant's marital status and ancestry.
Recommended Decision at 5-7. Respondent asked about Complainant's
parentage, such as why his family (parents and siblings) moved to
California from Lebanon and if they still lived there. Id. at 5,
10. The Executive Director took exception to the Hearings
Examiner's failure to specifically conclude that Respondent asked
unlawful parentage-oriented questions. The Commission believes that
the parentage-oriented questions were recognized as part of the
unlawful inquiry based upon the findings that Respondent asked why
the family moved to California and whether they still lived there
and the conclusion that H.R.S.  378-2(1)(C) and H.A.R.  12-46-171
and 177(b) were violated by such questions.
On page 18 of the Recommended Decision, Complainant's
assumption that the inquiries would be used to screen him from the
job and his belief that he was not hired because of his ancestry and
marital status are characterized as "mistaken." The Commission
concludes that the assumption and belief were not mistaken at the
time. After being asked a series of questions about his marital
status and ancestry, it was reasonable for Complainant to believe
that such information was important to Respondent and would play a
part in the hiring decision[3]. Although Respondent also had other
reasons for asking such questions, Complainant was not aware of them
and his assumption and belief that they would be used to
discriminate were reasonable at the time. Based upon the
exceptions, oral argument, and review of the entire record, the
Commission deletes any references to or discussion in the
Conclusions of Law about Complainant being "mistaken" in his
assumption and belief.
The Hearings Examiner concluded that in addition to emotional
distress resulting from the inquiries[4] being made, the major part
of Complainant's emotional distress was based upon four other
factors: his mistaken assumption about being screened out, mistaken
belief about why he was not hired, being unemployed for 10
months[5], and believing he would not be able to secure a good job
in Hawaii because of his ancestry[6]. Recommended Decision at 18.
Any emotional distress from these four factors was not considered in
the damages award. With respect to the last two factors, the
Commission agrees that any emotional distress from these factors was
not reasonably caused by the unlawful inquiries and is not
compensable. However, Complainant's assumption and belief
reasonably resulted from the unlawful inquiry and were substantial
factors in causing him some emotional distress. Knodle v. Waikiki
Gateway Hotel, Inc., 69 Haw. 376, 742 P.2d 377 (1987). Thus,
Complainant is entitled to compensation for such distress.
Because Complainant's emotional distress was caused by the
unlawful inquiry and as well as other factors, damages must be
apportioned. Montalvo v. Lapez, 77 Hawai'i 282 (1994). Because the
emotional distress resulting from the assumption and belief were not
considered in assessing Complainant's damages, the Commission hereby
apportions damages and increases the compensatory damages awarded to
Complainant from $7,000.00 to $10,000.00 [7]. The remaining
portions of the Conclusions of Law are hereby adopted in the Final
Decision.

III. FINAL ORDER
The Commission hereby adopts the Hearings Examiner's
Recommended Order, as modified, by increasing the compensatory
damages to $10,000.00.
DATED: Honolulu, Hawaii


CLAUDIO SUYAT, Chair




JACK LAW, Commissioner




FAYE KENNEDY, Commissioner




ALLICYN HIKIDA-TASAKA, Commissioner




HARRY YEE, Commissioner



NOTICE: Pursuant to H.R.S.  91-14 and 368-16, an aggrieved party
may institute proceedings for judicial review in the circuit court
within thirty (30) days after service of the certified copy of the
final decision and order of the agency.

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

1. Unless the employer can establish that the protected basis
is a bona fide occupational qualification for the particular job.
H.R.S.  378-3(2).

2. The Hearings Examiner noted how Respondent could have
determined whether Mr. Hemaidan would be a stable and responsible
employee by asking questions that did not inquire into his marital
status. Recommended Decision at 11, n. 6.

3. Indeed, Respondent considered that being married was a
favorable factor for a prospective employee. Recommended Decision
at 8, 19. Although, the person actually hired was not married, her
experience and qualifications outweighed the adverse factor of her
marital status, being single. Id. In any event, Respondent did
consider an applicant's marital status as a one of several factors
in determining who to hire.

4. The Hearing Examiner found that the weight of the evidence
showed that immediately after the interview Complainant believed
that the inquiries would be used to deny him the job and that after
getting the rejection letter believed that he did not get the job
because of his martial status and ancestry. The evidence also
showed that these perceptions caused Complainant to become very
upset, irritated, short tempered, and distant from his family.
Recommended Decision at 17.

5. The finding that Complainant had emotional distress from
being unemployed for 10 months was based upon the Hearings
Examiner's review of conflicting evidence. Although Complainant
maintained that all of his emotional distress resulted solely from
the unlawful inquiries, the Hearings Examiner correctly determined
that being unemployed for 10 months caused Complainant to suffer
emotional distress which existed at the time of the unlawful
inquiry. At oral argument, it was conceded that Complainant
suffered stress from being unemployed for so long. Oral Argument
Transcript at 9-10.

6. Complainant's belief that he would not be able to find a
job in Hawaii because of his ancestry was reasonably caused by being
unemployed for 10 months and did not arise from the unlawful
inquiry.

7. The Commission wishes to stress that the award is not a
fixed penalty for making an unlawful inquiry into two protected
bases but is compensation for Complainant's emotional distress
resulting from the inquiry.