Shawdra.txt
CIVIL RIGHTS COMMISSION
STATE OF HAWAII
In the Matter of ) Docket No. 94-001-E-P
)
YVETTE SHAW, ) HEARINGS EXAMINER'S
) FINDINGS OF FACT,
Complainant, ) CONCLUSIONS OF LAW
) AND RECOMMENDED
- -- - - - - - - - - - - - - -) ORDER; APPENDIX A;
) ATTACHMENT 1
SAM TEAGUE, LTD. dba PAGE )
HAWAII and SAM TEAGUE, )
)
Respondents. )
______________________________)
HEARINGS EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER
I. INTRODUCTION
A. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.
B. Summary of the Parties' Contentions
The Executive Director alleges that Respondents violated H.R.S.
378-2 and Hawaii Administrative Rules (H.A.R.)
12-46-106, 12-46-107 and 12-46-108 when they: 1) refused to
grant Complainant Yvette Shaw maternity leave for a reasonable
period of time; 2) harassed Complainant because she was pregnant;
3) terminated Complainant when she took maternity leave; and
4) failed to reinstate Complainant to her former position after
taking leave. Alternatively, the Executive Director alleges that
Respondents had a "no extended leave" policy which had a disparate
impact on Complainant. The Executive Director also contends that
Respondents' actions caused Complainant to suffer lost wages,
benefits and emotional distress. Finally, the Executive Director
contends that Respondents' violation of the above statute and rules
was wanton, wilful and malicious and they are liable for punitive
damages.
Respondents Sam Teague Ltd., dba Page Hawaii (hereinafter "Page
Hawaii") and Sam Teague (hereinafter "Teague") contend that: 1)
Page Hawaii has a "no extended leave" policy that applies to all
employees; 2) the "no extended leave" policy is justified by
business necessity; 3) if Respondents had a "no maternity leave"
policy, such policy is a bona fide occupational qualification;
4) the granting of six weeks maternity leave to Complainant is an
unreasonable accommodation; 5) Respondents were justified in not
reinstating Complainant because she lied about making a one year
commitment and they had hired another permanent employee;
6) Respondents did not harass Complainant; and 7) Respondents'
actions were not wanton, malicious or wilful and they are not liable
for punitive damages.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, this Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.
II. FINDINGS OF FACT[1]
1. Respondent Page Hawaii is a corporation doing business in
the State of Hawaii. It was incorporated in July 1986. (Tr. vol.
V at 124; Ex. A) [2]
2. Respondent Sam Teague (hereinafter "Teague") is the
president and sole shareholder of Page Hawaii. (Tr. vol. V at 125-
126)
3. Page Hawaii is located in Honolulu, Hawaii. The business
is primarily engaged in selling and providing services for a large
variety of pagers. During Complainant's employment at Page Hawaii,
the company had about 400-500 accounts. (Tr. vol. I at 145, vol.
III at 168, vol. V at 127)
4. From 1986 to the present, Page Hawaii has been a two
employee operation, with Teague functioning as the
president/supervisor and the following persons employed as office
managers on the dates indicated:
Susan King 4-27-89 - 12-7-89
Jodi Katayama Chee 11-29-89 - 8-22-90
Susan King 8-24-90 - 12-15-90
Jackie Gonzalez Rivera 12-4-90 - 2-14-92
Yvette Shaw (Complainant) 2-2-92 - 9-11-92
Susan Funari 9-15-92 - 10-23-92
Marnie Wolfert 10-25-92 - 11-4-93
Dwayne Richardson 12-5-93 - present
(Tr. vol. II at 177, 186-188, 190-193, vol. III at 39, 83, 87, 119,
vol. V at 61, 129, 161-162, vol. VI at 246)
5. Prior to being hired as office managers for Page Hawaii,
none of the above persons had any experience selling, programming,
maintaining or otherwise working with pagers. Susan King had been
a customer service representative for Select Temporary Services, a
word processor with a security company and did customer service work
for some military exchanges. Jodi Katayama Chee received an office
administration degree from Cannon's Business College and worked as
a secretary for a chiropractor. Jackie Gonzalez Rivera worked as an
office manager for a doctor, an administrative assistant at the
University of Hawaii, and had other bank and sales experience.
Complainant Shaw received a bachelor of arts degree in
communications and had advertising and store management experience.
Susan Funari had worked as a bartender and rental agent for Thrifty
Car Rental. Marnie Wolfert had been a secretary for Kahala
Management and a crew worker for Cinnabon's. Dwayne Richardson had
been a gas service specialist who worked on turbo engines while in
the military. (Tr. vol. III at 75-77, 104-105, 128, 135, vol. V at
79-80, vol. VI at 52, 243; Ex. G)
6. During Susan King's first period of employment with Page
Hawaii, she asked Teague for 2-3 weeks leave to take care of
personal matters on the mainland. Teague refused to grant her this
leave, so King resigned. After Jodi Katayama Chee notified Teague
that she was resigning as office manger, Teague contacted King on
the mainland and asked her if she wanted the office manager position
back. King accepted and returned to work at Page Hawaii on August
24, 1990. (Tr. vol. III at 39-42)
7. The essential job functions of the office manager position
at Page Hawaii are: a) general office duties, such as opening and
closing the office, billing, filing, opening and closing customer
accounts, receiving cash amounts under $1,000 and giving change,
preparing deposits, collecting overdue accounts;
b) demonstrating and selling the various pagers, equipment and
services provided by the company; c) programming and testing the
pagers; d) responding to customer complaints about pagers or
billing; and e) general inventory, maintenance and cosmetic repair
of pagers. (Tr. vol. III at 45-47, vol V at 58-60, 136; Ex. 8)
8. On the average, it takes about six to nine months for a
new employee to learn and become competent in the above mentioned
job functions. (Tr. vol. III at 88-89, vol. IV at 194-195, vol. VI
at 145-146, 247)
9. Respondent Teague trained each of the office managers to
perform the above job functions. During the first six weeks to two
months of training, Teague would be in the office full time with the
office managers and would not leave them unsupervised. After the
initial six weeks to two month training period, Teague would leave
an office manager unsupervised for about 1-3 hours per day. During
business hours, Teague was usually in the office 5-7 hours per day.
(Tr. vol. III at 79-81, 94, 193, vol. V at 108, vol. VI at 73, 144-
145)
10. Office managers at Page Hawaii were paid $1,300 per month
or about $7.50 an hour. At his discretion, Teague would give office
managers bonuses at the end of the year if their performance was
exemplary. (Tr. vol. V at 207-208; vol. VI at 236-237)
11. From 1988 to the present, Page Hawaii has had a "no
extended leave" policy for its employees. Since December 1990, Page
Hawaii has also had a policy of requiring a one year commitment
(working 12 continuous months) from all office manager applicants.
This is because it takes Teague 6-9 months to fully train new office
managers. (Tr. vol. III at 121, 124-125, vol. IV at 92-93, 107-108,
vol. V at 57, vol. VI at 56, 146-149, 151-153, 244-245)
12. On January 29, 1992, Jackie Gonzalez Rivera interviewed
Complainant Shaw for the office manager position at Page Hawaii. At
the interview, Rivera told Complainant that the company needed a one
year commitment and asked Complainant if she could make such
commitment. Rivera did not inform Complainant that the company had
a "no extended leave" policy and did not explain that a one year
commitment meant working 12 continuous months without taking any
extended leave. (Tr. vol. I at 92, vol. IV at 50, vol. V at 83-84,
120)
13. Complainant thought that a one year continuous commitment
could include taking extended leaves of absences for disability or
pregnancy purposes. Complainant told Rivera that her husband was
stationed in Hawaii until 1995 and that she would have no problem
working at Page Hawaii for at least one year. Complainant intended
to work at Page Hawaii until her husband was transferred out of
Hawaii. (Tr. vol. I at 193-195, 199, 232-233) 14. Later, Teague interviewed Complainant. Teague also asked
Complainant if she could make a one year continuous commitment to
the job. Teague also did not inform Complainant of the company's
"no extended leave" policy and did not explain that a one year
commitment meant working 12 continuous months without taking any
extended leave. Complainant also told Teague that a one year
commitment would not be a problem. (Tr. vol. I at 173-174, 182-183,
vol. IV at 50, vol. VI at 159-160)
15. On January 30, 1992 Complainant took a pregnancy test at
Tripler Hospital and was informed that she was pregnant. (Tr. vol.
I at 93-94, 190-191)
16. On January 31, 1992 Complainant was offered the office
manager position at Page Hawaii and she accepted the offer. If
Teague had known that Complainant was pregnant, he would not have
hired her. (Tr. vol. V at 86-87, vol. VI at 160-162)
17. Complainant's three month job performance review was
scheduled for May 11, 1992. However, because the office was busy
that day, Complainant's review was rescheduled for May 12, 1992.
(Tr. vol. I at 204)
18. Complainant decided to inform Teague about her pregnancy
and request a six week maternity leave after her three month job
performance review. This was because she didn't want her pregnancy
to be a factor in her review. (Tr. vol. I at 197-198, 205)
19. On May 12, 1992 Teague conducted a job performance review
with Complainant. After the review, Complainant informed Teague
that she was pregnant, was expecting to deliver in September, and
handed Teague a memorandum requesting a six week maternity leave.
(Tr. vol. I at 106-107, vol. VI. at 174; Ex. 10)
20. Teague was shocked and angry. He felt that Complainant
was breaking her agreement to work at Page Hawaii for one continuous
year. He stated, "How can this be?" "What about your one year
commitment to me?" (Tr. vol I at 107, 225, vol. VI at 174-175)
21. Complainant replied that she wasn't breaking her one year
commitment and that she planned to return to work at Page Hawaii
after taking maternity leave. She suggested that: a temporary
worker could be hired, she could shorten her leave to four weeks or
she could come in part time during the six week leave period. (Tr.
vol. I at 107-109, 226-227, vol. VI at 175-177)
22. Teague stated that a temporary worker would not work out
and rejected Complainant's other suggestions. (Tr. vol. I at 107-
109, vol. VI at 175-177)
23. Complainant became agitated and upset during this
discussion. Teague also became upset and decided to end the
discussion, telling Complainant to "go home and sleep on it". (Tr.
vol. I at 110-111, vol. VI at 175-178)
24. The next day (May 13, 1992), Complainant again spoke to
Teague about her request for maternity leave. Teague again stated
that it wouldn't work out. Complainant explained that she and her
husband weren't planning to start a family, but that "it happened".
Teague stated Complainant and her husband "should have used
precautions". Complainant was offended by this comment and told
Teague that it was none of his business. Teague agreed that it was
none of his business and immediately apologized to Complainant.
Complainant reiterated that she had the right to take maternity
leave and she was going to return to her job after her leave.
Teague did not respond. (Tr. vol. 1 at 109, 124. vol. VI at 178-
183)
25. Teague felt he had made it clear that he was not granting
Complainant's request to take maternity leave. Complainant felt the
issue of her maternity leave was not resolved. (Tr. vol. IV at 53,
vol. V at 34)
26. After both discussions, Complainant became very upset.
She went home, cried, and worried about losing her job.
Complainant's husband felt that she should have been more forceful
in asserting her "rights", and they fought over how she should
handle the situation. After the May 13th discussion, Complainant
was nervous at work and had knots in her stomach because she was
worried about whether Teague would grant her maternity leave. (Tr.
vol. I at 110-111, 124-126, 129-130, vol II at 123-126, 131, 209-
210)
27. Because Complainant was agitated and upset during the
May 12 and 13 discussions, Teague felt uncomfortable around her. He
didn't want to upset her again and only spoke to her about business
matters. (Tr. vol. VI at 183-184)
28. Complainant's maternity leave was not discussed again
until some time in August 1992 when Teague and Complainant
determined what her last day of work before giving birth would be.
They agreed that September 18, 1992 would be Complainant's last day.
By this time, Complainant had been fully trained by Teague and had
mastered about 75%-80% of the office manager duties. (Tr. vol. I at
128-129, vol. VI at 150-151, 188-189)
29. Some time in late August or early September 1992 Teague
interviewed Susan Funari and offered her the office manager
position. Funari began working at Page Hawaii on September 15,
1992. (Tr. vol. IV at 129, vol. VI at 192-194)
30. On September 14, 1992 Complainant gave birth to a baby
girl at Tripler Hospital. (Tr. vol. I at 152; Ex. 16)
31. After delivery, Complainant was examined by Dr. Ben
Williams. Complainant did not ask Dr. Williams how long she should
take maternity leave from work. If Complainant had asked,
Dr. Williams would have recommended 42 days, or six weeks maternity
leave based on her normal delivery. (Tr. vol. III at 13, 15-16, 32-
33)
32. On September 16, 1992 Complainant phoned Teague and
informed him that she had a daughter. Teague congratulated
Complainant and told her that he was lucky to find a replacement for
her. Complainant thought Teague had found a temporary replacement.
(Tr. vol. I at 136-137, vol. IV at 40, vol. VI at 202)
33. On September 18, 1992 Teague wrote Complainant and stated,
"it will not be possible to hold open your job. The learning curve
for the job is simply too great." Teague again congratulated Complainant on the birth of her daughter and enclosed
a final pay check and a letter of reference. (Tr. vol. I at 137,
vol. VI at 202-204; Ex. 12)
34. Teague did not terminate Complainant because of poor work
performance or tardiness. (Tr. vol. IV at 135)
35. Complainant was surprised and upset by Teague's
September 18, 1992 letter. She called Teague and asked how he could
terminate her since he knew that she wanted to return to her job.
Teague stated he had already hired a replacement and he couldn't
hold the position open since the learning curve was so great.
Complainant stated that her termination wasn't fair and she was
going to check into the matter. Teague stated that as a small
business he could refuse to hold her position open. (Tr. vol. I at
138, vol. IV at 41, 123)
36. Some time in the beginning of October 1992 Funari
informed Teague that she was frustrated with the office manager
position at Page Hawaii and wanted to resign. Teague asked Funari
to stay on as office manager until October 23, 1992 (exactly six
weeks after Complainant's last day of work) because he wanted to
attend a seminar and needed someone to be in the office. Funari
agreed to stay on through that date. (Tr. vol. III at 129-132, vol.
VI at 195-197)
37. After Funari gave Teague notice that she was resigning,
Teague told friends that he needed a new office manger. Teague did
not contact Complainant to let her know the office manager position
was available. Some time in October 1992 Teague interviewed Marnie
Wolfert for the office manager position. Teague offered Wolfert the
job and began training her on October 25, 1992. (Tr. vol. VI at
197-200)
38. On October 23, 1992 (six weeks after delivery) Complainant
had her post partum check up and was cleared to return to work. She
felt physically able to return to work the prior week. Complainant
could have returned to work at Page Hawaii at least by October 23,
1994. Later that day, Complainant wrote to Teague, asking to be
reinstated to the office manager position at Page Hawaii on November
2, 1992. The letter was received by Page Hawaii on October 26,
1992. (Tr. vol. I at 233-234, vol. VI at 200-201; Ex. L)
39. On October 26, 1992 Teague wrote in response to
Complainant's October 23, 1992 letter. He stated that there had
been a "misunderstanding" and reiterated that it would not be
possible to hold open her position or hire temporary help. (Ex. 14)
40. Select Temporary Services Inc. is a company which provides
temporary workers to businesses. Select Temporary Services has
never had any employees with experience in selling, programming or
otherwise working with pagers. However, it has employees with
experiences similar to Complainant's pre-Page Hawaii work experience
and has employees with office management, sales and customer
relations experiences. If supervised, these employees were
capable of learning how to sell, program and maintain pagers and
could handle cash amounts up to $10,000. They could also work for
periods of six to eight weeks. Therefore, Select Temporary
Services had temporary employees who could be trained to perform the
Page Hawaii office manager duties. Select Temporary Services would
bill a customer approximately $13-$14 per hour for such employees.
(Tr. vol. IV at 190-193, vol. V at 171, 194-195, 201, 217-220, 225-
227)
41. Teague could operate Page Hawaii by himself for a period
of six weeks. In fact, from November 4, 1993 to December 5, 1993
(the 4 week period between Wolfert's last work day and the day
Dwayne Richardson was hired), Teague did operate the business by
himself. (Tr. vol. IV at 138-139, 192-193, vol. VI at 213)
42. After Wolfert vacated her position at Page Hawaii, Teague
offered Complainant the officer manager position on November 23,
1993. Complainant declined the offer because she was again
pregnant and believed that Teague would again deny her maternity
leave. If Teague had known Complainant was again pregnant, he would
have not made the offer. (Tr. vol. VI at 207-210; Ex. S)
43. Complainant was unemployed from October 23, 1992 to
September 1993. In September 1993 Complainant was hired as a part-
time computer education teacher with FutureKids. In November 1993
Complainant was hired as a substitute teacher with the Department of
Education and began substitute teaching in December 1993. (Tr. vol.
I at 156-157)
44. During her unemployment, Complainant applied for various
administrative, sales, advertising and clerical jobs, some of which
were located in downtown Honolulu. However, Complainant did not
apply for jobs with any other paging companies. In February 1993,
there were sales, data entry and customer service positions open
with RAM Paging Hawaii, the largest paging company in the state,
which Complainant was qualified for. Such positions paid $1,500 to
$1,600 per month. (Tr. vol. VI at 19-21; Ex. 38)
47. Teague was not aware of this Commission's statutes and
rules regarding pregnancy discrimination until after the complaint
was filed in this case. (Tr. vol. IV at 123, vol. V at 38-39)
III. CONCLUSIONS OF LAW[3]
A. Jurisdiction
1. Respondent Page Hawaii
During Complainant's employment at Page Hawaii, Respondent Page
Hawaii was a corporation with one or more employees. It is
therefore an employer under H.R.S. 387-1 and is subject to the
provisions of H.R.S. Chapter 378.
2. Respondent Sam Teague
Respondent Teague, as president, sole stockholder, director and
only other employee of Page Hawaii served in a supervisory position
over Complainant Shaw. He exercised sole control over her hiring,
firing and conditions of employment. He is therefore an agent of
Respondent Page Hawaii and an employer under
H.R.S. 378-1. In Re Santos / Hawaiian Flowers Experts, Inc.,
Docket No. 92-001-E-SH (January 25, 1993). Teague argues that the claims against him individually should
be dismissed because the amended complaint, which added him as a
party, was untimely filed on September 2, 1993 (more than 180 days
after the date on which Complainant was terminated).
As stated in the July 19, 1994 Order Denying Respondents'
Motion To Dismiss Amended Claim, H.A.R. 12-46-6.1 allows the
Executive Director to amend the original complaint to add Respondent
Teague as a party and allows the amendment to relate back to
December 17, 1992. The amended complaint was therefore timely filed
against Teague.
B. Pregnancy Discrimination
Under H.R.S. 378-2(1)(A), an employer may not bar, discharge
or otherwise discriminate against an individual because of sex. The
term "because of sex" includes because of pregnancy, childbirth or
related medical conditions. H.R.S. 378-1.
Under H.A.R. 12-46-106, an employer may not penalize females
in the terms or conditions of employment because they require time
away from work on account of disability resulting from pregnancy,
childbirth or related medical conditions. Under H.A.R.
12-46-107(b) an employer may not discharge an employee because she
requires time away from work for disabilities due to or resulting
from pregnancy, childbirth or related medical conditions. Under
H.A.R. 12-46-108, such disabled employee is entitled to leave, with
or without pay, for a reasonable period of time. In addition, the
rule requires employers to reinstate such employees to their
original jobs or to positions of comparable status and pay, without
loss of accumulated service credits and privileges.[4]
1. Disparate Impact Claim
When an employer has a "no leave" policy for all temporary
disabilities, such policy has a disparate impact[5] on pregnant
employees and constitutes a prima facie violation of the above
statute and rules. Miller-Wohl Co. v. Commissioner of Labor &
Industry, 692 P.2d 1243, 36 EPD 35,176 at 37,364-37,365 (Mont.
1984), judgment vacated and remanded 479 U.S. 1050, 107 S.Ct. 919,
93 L.Ed.2d 972, 41 EPD 36,699 (1987), judgment reinstated 744 P.2d
871, 45 EPD 37,740 (Mont. 1987) (company's "no leave" policy for
employees with less than one year of employment has disparate impact
on female employees); Abraham v. Graphic Arts International Union,
660 F.2d 811, 26 EPD 32,041 at 21,726-21,727 (D.C. Cir. 1981)
(union's 10 day maximum disability leave policy has disparate impact
on women employees); EEOC Regulations Relating to Pregnancy and
Childbirth, 29 C.F.R. 1604.10(c) [6]; 1 Larson Employment
Discrimination 38.22 (1993). Some leave accompanying childbirth
is a necessity. A "no leave" policy subjects pregnant women
employees to job termination on a basis no man would ever face.
Miller-Wohl, 692 P.2d 1242, 1252. Such policy more severely affects
women and discriminates based on sex. Miller-Wohl, supra; Abraham,
supra; Larson, supra; see also, Dothard v. Rawlinson, 433 U.S. 321,
92 S.Ct. 2720, 53 L.Ed.2d 786, 14 EPD 7632 at 5106 (1977) (evidence
on its face can demonstrate a job requirement's grossly
discriminatory impact).
An employer may avoid liability by showing that such "no leave"
policy is job related and consistent with business necessity.
Mitchell v. Board of Trustees of Pickens County, 599 F.2d 582, 19
EPD 9257 at 7522 (4th Cir. 1979). Establishing a business necessity
defense is a heavy burden. Chambers v. Omaha Girls Club Inc., 834
F.2d 697, 45 EPD 37,566 at 49,880 (8th Cir. 1987). An employer is
required to show that the challenged practice is necessary to safe
and efficient job performance. Id.; Harriss v. Pan American World
Airways, 649 F.2d 670, 24 EPD 31,425 at 18,485 (9th Cir. 1980). To
meet this requirement
. . . the business purpose must be sufficiently compelling
to override any [discriminatory] impact; the challenged
practice must effectively carry out the business purpose
it is alleged to serve; and there must be available no
acceptable alternative policies or practices which would
better accomplish the business purpose advanced, or
accomplish it equally well with a lesser [discriminatory]
impact.
Harriss, supra, quoting Robinson v. Lorillard Corp., 444 F.2d 791,
3 EPD 8367 (4th Cir. 1971). In the present case, such burden can be
met if the employer proves that: 1) its business requires an
immediate replacement for the employee's position; 2) it is
impossible to hire a temporary substitute worker. Larson, supra.
Respondent Page Hawaii has a "no extended leave" policy which
prohibits its office mangers from taking leave for more than 2-3
days for any type of temporary disability, including pregnancy and
childbirth. This policy has a disparate impact on women employees
because it subjects them to termination on a basis not faced by men
employees. Page Hawaii's "no extended leave" policy therefore
constitutes a prima facie violation of H.R.S. 378-2(1)(A) and
H.A.R. 12-46-107 and 12-46-108.
Respondents contend that the application of its "no extended
leave" policy to terminate Complainant is justified by business
necessity because it was impossible for Teague to run Page Hawaii by
himself while Complainant was on maternity leave and because it was
impossible to hire a temporary substitute worker.
The evidence shows otherwise. Teague could have run Page
Hawaii by himself for six weeks. Diane Kim, president of RAM Paging
Hawaii, opined that a person with Teague's knowledge and skills
could have run Page Hawaii alone for six weeks. Although Kim stated
that Page Hawaii might temporarily loose some business because
Teague would not be able to leave the office to do marketing or
repair transmitters, Teague would loose such business anyway, since
he would similarly not be able to leave the office for a 6-8 week
period when training a new permanent replacement. In addition,
Teague did run the business alone for a four week period in 1993.
While Teague claims that running Page Hawaii during that period
"nearly killed me", his hospital records do not indicate that his
health worsened at that time. (Tr. vol. VI at 218; Ex. LL)
Therefore, Page Hawaii did not require an immediate replacement for
Complainant's position.
Furthermore, while it was not possible for Respondents to find
a temporary substitute worker experienced in selling and programming
pagers, Respondents could have hired temporary employees who: a)
had the same pre-Page Hawaii work experiences as other Page Hawaii
employees; b) were capable of learning all of the office manager
duties; and c) could perform the same functions as a new permanent
employee. Complainant's subsequent replacements did not have
experience working with pagers and Teague had to spend 6-8 weeks
training them full time. Thus, I fail to see any difference in
time, effort and effect on customers in Teague's working with and
training an inexperienced temporary worker versus his working with
and training an inexperienced permanent employee. As the Executive
Director notes, Funari, who had no experience working with pagers,
worked the six week period after Complainant gave birth without
noticeable harm to the company's business.
For these reasons I conclude that Page Hawaii's "no extended
leave" policy had a disparate impact on Complainant and was not job
related and consistent with business necessity.
2. Whether Respondents' No Maternity Leave Policy was a Bona
Fide Occupational Qualification
The Executive Director alleges that Page Hawaii has a facially
discriminatory "no maternity leave" policy. Accordingly,
Respondents contend that Page Hawaii's "no maternity leave" policy
is a bona fide occupational qualification (BFOQ). However, the
evidence instead shows that Page Hawaii has a facially neutral "no
extended leave" policy that applies to male and female office
managers for all types of disabilities or family leave. As
discussed above, this "no extended leave" policy had a
discriminatory impact upon Complainant and was not justified by
business necessity. I therefore conclude that the BFOQ defense is
inapplicable to this case.[7]
3. Whether the Granting of Maternity Leave to Complainant is
an Unreasonable Accommodation
H.A.R. 12-46-107(c) requires an employer to make every
reasonable accommodation to the needs of females affected by
disabilities due to and resulting from pregnancy, childbirth or
related medical conditions. Respondents argue that granting six
weeks maternity leave to Complainant is an unreasonable
accommodation.
H.R.S. Chapter 378 and the above administrative rule do not
define what constitutes a "reasonable accommodation". However, the
term "reasonable accommodation" and the subsection requiring it are
separate and distinct from the sections that: a) require leave for
disabilities due to and resulting from pregnancy, childbirth or
related medical conditions ( 12-46-108); and b) prohibit discharge
because of leave ( 12-46-107(b). Therefore, I conclude that
"reasonable accommodation" in 12-46-107(c) is distinct from and
does not include the granting of maternity leave. See, Franks v.
City and County of Honolulu, 74 Haw. 328, 339 (1993) (courts are
bound to give effect to all parts of statute and no clause, sentence
or word shall be construed as superfluous, void or insignificant if
construction can be legitimately found which will give force to all
words of a statute); 1A Singer Statutory Construction 21.01,
21.02 (1993) (each statutory section should stand out separately and
contain one and only one idea or proposition). In addition, this
Commission recently adopted administrative rules on disability
discrimination (H.A.R. Chapter 12-46- Subchapter 9) which define
"reasonable accommodations" to mean
. . . [m]odifications or adjustments to the work
environment, or to the manner or circumstances under which
the position held . . . is customarily performed, that
enable a qualified person with a disability to perform the
essential functions of that position . . .
H.A.R. 12-46-182. Such accommodations can include modifying
equipment used or the manner in which job duties are performed, job
restructuring, part-time work or modified work schedules. Id.
Therefore, I conclude that "reasonable accommodation" as found in
12-46-107(c) similarly means modifications or adjustments to the
work environment, or to the manner or circumstances in which the
work is performed that enable a pregnant employee to perform her
essential job duties while she is still working. For example, a
reasonable accommodation could include allowing a pregnant employee
to sit, instead of stand, while working. It does not include the
granting of maternity leave and is not an applicable defense to the
facts in this case.[8]
4. Whether Respondents were Justified in not Reinstating
Complainant
Respondents finally argue that they were justified in not
reinstating Complainant because: a) she lied about being able to
work for at least one year; and b) they had already hired another
permanent employee, Marnie Wolfert. These arguments are
unsupported by the law and record in this case.
An employer may limit but not avoid liability by showing mixed
motives for its adverse action (i.e., that it would have acted as it
did without regard to the complainant's protected status). See, In
Re Smith / MTL Inc. Docket No. 92-003-PA-R-S (November 9, 1993).
Respondents alternatively argue that they would have discharged
Complainant for lying about being able to work at Page Hawaii for at
least one year. However, the record shows that Complainant did not
lie. Complainant testified that she thought a one year commitment
could include taking an extended maternity leave. Teague and Rivera
confirmed that Complainant stated she could work at Page Hawaii
until her husband was transferred in 1995. Neither Teague nor
Rivera informed Complainant of the company's no extended leave
policy or that a one year commitment meant working 12 continuous
months without taking any extended leave. Therefore, while
Complainant had a different understanding of what a "one year
commitment" entailed, she did not lie about making such commitment.
In addition, Teague didn't know if Complainant had lied at the time
he hired Wolfert. He testified that he wasn't sure if Complainant
knew that she was pregnant at the time she made the one year
commitment. (Tr. vol. VI at 206) Finally, even if Complainant had
lied, the fact that Teague offered Complainant the officer manager
position in November 1993 shows that he would not have fired
Complainant merely for lying. Cf., Lysak v. Seilor Corp., 614
N.E.2d 991, 64 EPD 43,157 (Mass. 1993) (plaintiff fired because she
lied, not because she was pregnant).
The hiring of Wolfert to replace Complainant is also not a
defense to liability. It only impacts Complainant's remedies by
possibly limiting her to an award of front pay instead of
reinstatement. See, Lilly v. Harris-Teeter Supermarket, 545 F.Supp
686, 33 BNA 98, 121 (W.D. NC 1982); Wangness v. Watertown School
Dist., 541 F.Supp 332, 30 EPD 33,002 at 26,779 (D.S.D. 1982); 2
Larson Employment Discrimination 55.21 (1994).
Furthermore, the record shows that Teague could have reinstated
Complainant. Complainant told Teague on at least three occasions
(May 12, May 13 and September 22, 1992) that she wanted to return to
her job at Page Hawaii. When Funari gave Teague notice of her
resignation, Teague could have contacted Complainant and offered her
the office manager position back. He had previously done so with
Susan King after Jodi Katayama Chee resigned. Instead, Teague chose
to recruit, hire and train another new, inexperienced permanent
replacement.
C. Pregnancy Harassment
The Executive Director alleges that Respondents violated H.A.R.
12-46-106 when Teague harassed Complainant because she was
pregnant. The Executive Director is required to show that:
a) discriminatory conduct relating to Complainant's pregnancy took
place; b) the conduct was unwelcome in the sense that Complainant
did not solicit or incite it and in the sense that the Complainant
regarded the conduct as intimidating, hostile or offensive; and c)
the conduct was sufficiently severe or pervasive to alter the
conditions of employment, such as having the purpose or effect of
unreasonably interfering with an individual's work performance or by
creating an intimidating, hostile or offensive working environment.
The perspective to be used in evaluating the severity or
pervasiveness of the harassment is that of the victim. See, In Re
Santos / Hawaiian Flowers Exports Inc., supra, H.A.R.
12-46-175(b).
In the present case, the Executive Director has not met the
above burden. Aside from refusing to grant Complainant maternity
leave and making one comment about "using precautions", Teague
engaged in no other discriminatory conduct. While Complainant was
offended by Teague's "precautions" remark (which he immediately
apologized for), I conclude that a reasonable pregnant employee
would not consider such conduct sufficiently severe or pervasive to
create a hostile, intimidating or offensive work environment.
Respondents therefore did not harass Complainant because of her
pregnancy.
D. Liability
Because Respondents Page Hawaii and Teague failed to grant
Complainant six weeks maternity leave and failed to reinstate
Complainant to the office manager position when such actions were
not justified by business necessity, I conclude that Respondents are
liable for violating H.R.S. 378-3 and H.A.R. 12-46-107 and 12-
46-108. [9]
E. Remedies
1. Back Pay
Back pay encompasses the amount Complainant would have earned
if she had been reinstated by Respondents. Respondents have the
burden to prove any offsets to Complainant's expected earnings,
including the failure to mitigate damages by seeking comparable
employment. Sias v. City Demonstration Agency, 588 F.2d 692, 18 EPD
8773 at 5141 (9th Cir. 1978).
Complainant was unemployed from October 23, 1992 to September
1993. Respondents claim that Complainant could have mitigated her
damages by immediately obtaining work as a clerical worker for a
temporary employment agency. However, a complainant is not
required to accept employment that is not substantially equivalent
to the job discriminatorily denied. Ford v. Nicks, 866 F.2d 865, 49
EPD 38,659 at 55,600 (6th Cir. 1989). Jobs are substantially
equivalent if they are in the same line of work and afford virtually
identical compensation, responsibility, working conditions, status
and promotional opportunities. Ford, supra (college faculty member
not required to seek teaching job in secondary education); Floca v.
Homecare Health Services, Inc., 845 F.2d 108, 46 EPD 37,988 at
52,133 (5th Cir. 1988) (nursing director not required to accept
position as registered nurse). Working as a temporary clerical
worker is not substantially equivalent to being an office manager at
Page Hawaii. Therefore, Complainant was not required to seek and
obtain such employment. Respondents, however, did show that
Complainant could have secured a comparable job, with higher pay, at
RAM Paging Hawaii in February 1993.
Complainant was willing to return to work as late as
November 2, 1992. I therefore determine that Respondents should be
ordered to pay Complainant back pay for the period between November
2, 1992 and January 31, 1993 (3 months). This computes to a total
amount of $3,900.
Back pay awards can include bonuses, but are not required when
the award of a bonus is at management's option and is based upon
employee performance. Holthous v. Compton & Sons, Inc., 71 FRD 18,
10 EPD 10,455 at 5973 (DC Mo. 1975); Bonura v. Chase Manhattan Bank,
629 F.Supp 353, 40 EPD 36,210 at 42,839 (SD NY 1986). Because
Teague gave bonuses at his discretion to certain employees for
exemplary work, and Teague considered Complainant's work to be
average, I decline to include a bonus in Complainant's back pay
award.
Respondents argue that Complainant's back pay should be reduced
by any unemployment compensation benefits she received[10].
However, our federal circuit holds, and I conclude, that
unemployment benefits paid to Complainant are not offsets to back
pay because they are from a collateral source (i.e. the state
unemployment compensation fund). Kauffman v. Sidereal Corp., 695
F.2d 343, 29 EPD 32,803 at 25,753-25,754 (9th Cir. 1982). The U.S.
Supreme Court has similarly disallowed such offsets in National
Labor Relations Act cases. See, NLRB v. Bullett Gin Co., 340 U.S.
361, 71 S.Ct. 337, 95 L.Ed. 337 (1951). Therefore, Complainant's
back pay award should not be offset by any unemployment compensation
she received.
2. Front Pay
Because I conclude that Complainant could have secured a
comparable job with higher pay in February 1993, Complainant is not
entitled to any front pay.
3. Compensatory Damages
The Executive Director requests that Respondents be ordered by
pay Complainant compensatory damages of $20,000 [11] for the
emotional distress she suffered. The Executive Director must
demonstrate the extent and nature of the resultant injury and
Respondents must demonstrate any bar or mitigation to this remedy.
The evidence shows that after the March 12 and 13, 1992
discussions about maternity leave, Complainant became very upset.
She went home, cried and worried about losing her job. After
May 13, 1992 Complainant felt nervous at work and had knots in her
stomach, worrying about whether Teague would grant her maternity
leave. In addition, the situation created friction between
Complainant and her husband as they argued about how Complainant
should resolve the matter with Teague. Complainant testified that
what should have been a happy period (her first pregnancy), was a
time of uncertainty and tension. Complainant again became upset
after receiving Teague's September 16, 1992 letter stating that she
was terminated.
Considering these circumstances, I determine that $20,000 is
appropriate compensation for injury to Complainant's feelings,
emotions and mental well-being.
4. Punitive Damages
H.R.S. 368-17 also authorizes the Commission to award
punitive damages. Punitive damages are assessed in addition to
compensatory damages to punish a respondent for aggravated or
outrageous misconduct and to deter the respondent and others from
similar conduct in the future. See, In Re Santos, supra; Masaki v.
General Motors Corp., 71 Haw. 1, 6 (1989). The Executive Director
is required to show, by clear and convincing evidence, that
Respondents acted wantonly, oppressively or with such malice as
implies a spirit of mischief or criminal indifference to civil
obligations, or where there has been some wilful misconduct or
entire want or care which would raise the presumption of a conscious
indifference to consequences. Masaki, supra, at 15-17.
The Executive Director does not meet this burden. Teague
testified that he was not aware of this Commission's statutes and
rules regarding pregnancy discrimination until after the complaint
was filed in this case. In September 1992 Teague told Complainant
that he believed he could refuse to hold her position open because
of the nature and small size of the business. I therefore conclude
that the Executive Director has failed to show, by clear and
convincing evidence, that Respondents acted wantonly, maliciously or
with a conscious disregard for Complainant's rights.
5. Equitable Relief
Finally, the Executive Director asks that the Commission order
Respondents to:
a) immediately cease and desist from further discriminatory
practices on the basis of sex due to pregnancy;
b) develop and implement a written non-discrimination policy
based on sex due to pregnancy and offer training to Page
Hawaii employees on such policy;
c) post notices published by the Commission regarding
compliance with discrimination laws in conspicuous places
on Page Hawaii premises;
d) publish the results of this contested case hearing in a
newspaper published in the state and having general
circulation in Honolulu, Hawaii.
Because Respondents refused to grant Complainant a six week
maternity leave and failed to reinstate her to the office manager
position when such actions were not justified by business necessity,
I recommend that the Commission order Respondents to immediately
cease and desist from further discriminatory practices on the basis
of sex due to pregnancy when not justified by business necessity.
Page Hawaii does not have a written non-discrimination policy
based on sex due to pregnancy and Respondent Teague is not familiar
with this Commission's statue and rules regarding pregnancy
discrimination. I recommend that the Commission direct the
Executive Director to conduct training for Respondent Teague on the
Commission's pregnancy discrimination statute and rules within
thirty (30) days of the effective date of the Commission's final
decision in this matter. I also recommend that the Commission
order Page Hawaii to develop a written non-discrimination policy
within thirty (30) days of such training. I also recommend that
the Commission direct the Executive Director to submit its comments
on Respondent Company's policy within thirty (30) days of receiving
a copy of this policy. I also recommend that the Commission direct
Page Hawaii to adopt in substance the Executive Director's comments
within fifteen (15) days of receiving such comments.
The Commission should also direct Page Hawaii to post notices
provided by the Commission regarding discrimination laws in a
conspicuous place on its premises.
The best way to publicize this decision to the public is to
require Page Hawaii to publish the attached Public Notice
(Attachment 1) in a newspaper published in the State of Hawaii
having a general circulation in the City and County of Honolulu.
RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents Page Hawaii and Teague
violated H.R.S. 378-3 and H.A.R. 12-46-107 and
12-46-108 when they refused to grant Complainant six weeks maternity
leave and failed to reinstate Complainant to the office manager
position.
For the violations found above, I recommend that pursuant to
H.R.S. 368-17, the Commission should order:
1. Respondent Page Hawaii to pay Complainant back pay in the
amount of $3,900.
2. Respondents Page Hawaii and Teague jointly and severally
to pay Complainant $20,000 as damages in compensation for her
emotional injuries.
3. Respondents to immediately cease and desist from further
discriminatory practices on the basis of sex due to pregnancy when
such practices are not justified by business necessity.
4. The Executive Director to conduct training for Respondent
Teague on the Commission's pregnancy discrimination statute and
rules within thirty (30) days of the effective date of the
Commission's final decision in this matter.
5. Page Hawaii to develop a written non-discrimination policy
consistent with recommendations #3 and #4 above, within thirty (30)
days of such training.
6. The Executive Director to submit its comments on
Respondent Company's policy within thirty (30) days of receiving a
copy of this policy.
7. Page Hawaii to adopt in substance the Executive Director's
comments and accordingly modify its policy within fifteen (15) days
of receiving the Executive Director's comments.
8. Page Hawaii to post notices provided by the Commission
regarding discrimination laws in a conspicuous place on its
premises.
9. Page Hawaii to publish the attached Public Notice
(Attachment 1) in a newspaper published in the State of Hawaii
having a general circulation in the City and County of Honolulu.
Dated: Honolulu, Hawaii, November 18, 1994.
HAWAII CIVIL RIGHTS COMMISSION
/s/____________________________
LIVIA WANG
Hearings Examiner
Copies sent to:
Anne Randolph, Esq. HCRC Enforcement Attorney
Dennis King, Esq. Attorney for Respondents
ATTACHMENT 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 Respondents Sam Teague Ltd., doing business as Page
Hawaii, and Sam Teague, its president, violated Hawaii Revised
Statutes Chapter 378, Employment Discrimination, and Hawaii
Administrative Rules 12-46-107 and 12-46-108 when they refused to
grant an employee six weeks maternity leave and failed to reinstate
that employee to her position as office manager.
(In the Matter of Yvette Shaw / Sam Teague Ltd., dba Page Hawaii and
Sam Teague, individually, Docket No. 94-001-E-P, [date of final
decision] 1994).
The Commission has ordered us to publish this Notice and to:
1) Pay that employee back pay for the period in which she was
unable to obtain substantially equivalent work.
2) Pay that employee an award to compensate her for emotional
injuries she suffered.
3) Immediately cease and desist from further discriminatory
practices on the basis of sex due to pregnancy when not
justified by business necessity.
4) Require the Executive Director of the Hawaii Civil Rights
Commission to conduct training on the state's pregnancy
discrimination laws for Page Hawaii's president, require
Page Hawaii to develop a written non-discrimination
policy, the Executive Director of the Hawaii Civil Rights
Commission to comment on the non-discrimination policy,
and require Page Hawaii to modify its non-discrimination
policy pursuant to the Executive Director's comments.
5) Post notices provided by the Executive Director regarding
discrimination laws in a conspicuous place on company
premises.
DATED: ______________________________
BY: ______________________________
Authorized Agent for
Page Hawaii
APPENDIX A
On January 11, 1994 the Executive Director sent Respondents Sam
Teague Ltd., dba Page Hawaii (hereinafter "Page Hawaii") and Sam
Teague (hereinafter "Teague"), a final conciliation demand letter
pursuant to Hawaii Administrative Rule (H.A.R.) 12-46-17.
On January 27, 1994 the complaint was docketed for
administrative hearing and a Notice Of Docketing Of Complaint was
issued. On February 15, 1994 an Amended Notice of Docket of
Complaint was issued.
On February 2, 1994 the Executive Director filed its Scheduling
Conference Statement. Respondents filed their Scheduling Conference
Statement on February 22, 1994. A Scheduling Conference was held
on February 25, 1994 and the Scheduling Conference Order was issued
March 1, 1994.
On March 1, 1994 the Hearings Examiner filed a Motion to Extend
Hearing Date from July 26, 1994 to August 15, 1994 to accommodate
the parties' schedules. On March 31, 1994 the Commission issued an
order granting this motion.
On May 18, 1994 the parties filed a Stipulation Regarding
Liability for Punitive Damages, stating that if the Hearings
Examiner finds that the Executive Director has made a prima facie
case of liability for punitive damages, Respondent Teague will
disclose the extent and worth of his personal financial conditions.
On July 1, 1994 notices of hearing and prehearing conference
were issued. The Executive Director and Respondents filed their
Prehearing Conference Statements on July 12, 1994.
On July 13, 1994 Respondent Teague filed a Motion to Dismiss
Amended Claim on the grounds that the amended complaint, which added
him as a party, was untimely filed on September 2, 1993 (more than
180 days after the date which Complainant was terminated). A
hearing on Teague's motion was held on July 19, 1994 at the Hawaii
Civil Rights Commission conference room, 888 Mililani Street, 2nd
floor, Honolulu Hawaii. In attendance were Dennis W. King, counsel
for Respondent Teague, and Enforcement Attorney Anne Randolph,
counsel for the Executive Director and Enforcement Section law
clerks Rowena Eberhardt and Sheila Stehouwer. On July 19, 1994 an
order denying Teague's Motion to Dismiss Amended Claim was issued.
On July 19, 1994 a Prehearing Conference was held and a
Prehearing Conference Order was issued.
On August 11, 1994 the parties filed a stipulation as to the
testimonies of Louis Siracusa, Denise Dominguez and Ellis Wyatt.
On August 11, 1994 Respondents filed seven motions in limine.
On September 15, 1994 a hearing was held on all seven motions. The
Hearings Examiner orally denied Respondents' First Motion In Limine
which sought to exclude an Employment Agreement dated December 20,
1993 between Page Hawaii and Dwayne Richardson. Respondents' Second
Motion In Limine which sought to exclude the live testimony and/or
declaration of Wendelyn H. Aina was orally granted. Respondents'
Third Motion In Limine which sought to exclude any affidavits,
declarations, deposition transcripts or investigator's notes of
discussions with potential witnesses was orally granted in terms of
the declarations of Denise Meir and Leslie Hoeg unless used to
refresh recollection and investigator Wesley Woo's notes unless used
to impeach a witness; and was orally denied in terms of the
depositions. Respondents' Fourth Motion In Limine as to Page
Hawaii's 1992 tax returns was orally denied. Respondents' Fifth
Motion In Limine to exclude the testimony of investigator Wesley Woo
unless used to impeach a witness was orally granted. Respondents'
Sixth Motion In Limine to exclude articles published in Small
Business Hawaii Newsletter was orally denied as to Exhibit 47 and
orally granted as to Exhibit 48. The Hearings Examiner reserved
ruling on Respondents' Seventh Motion In Limine, which sought to
exclude the affidavit of Dr. Ben Williams, pending the availability
of Dr. Williams to testify.
The contested case hearing on this matter was held on
August 15, 16, 17, 18, 23 and 26 1994 at the Hawaii Civil Rights
Commission conference room, 888 Mililani Street, 2nd floor,
Honolulu, Hawaii pursuant to H.R.S. Chapters 91 and 368. The
Executive Director was represented by Enforcement Attorney Anne
Randolph. Complainant Shaw was present during portions of the
hearing. Respondents were represented by Dennis W. King, Esq.
Respondent Teague was also present at the hearing. After the
presentation of the Executive Director's case, Respondent Teague
renewed its Motion To Dismiss Amended Complaint pursuant to H.A.R.
12-46-48. After considering the arguments presented, the Hearings
Examiner orally denied Respondent's motion.
The parties were granted leave to file proposed findings of
fact and conclusions of law and/or hearing briefs. On September 2,
1994 the Hearings Examiner filed a Motion to extend Time to File
Proposed Decision from October 25, 1994 to November 18, 1994 to
allow the parties an extension of time until October 21, 1994 to
file post hearings memoranda. On September 26, 1994 the Commission
granted this motion. On October 21, 1994 the parties filed their
post hearing memorandum / proposed findings of fact and conclusions
of law.
-----------------------------------------------
footnotes:
1. To the extend 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
August 15-18, 23 and 26, 1994; "Ex." followed by a number refers to
the Executive Director's exhibits; "Ex." followed by a letter refers
to Respondents' exhibits.
3. To the extent that the following conclusions of law also
contain findings of fact, they shall be deemed incorporated into the
findings of fact.
4. Our state laws afford more protection to pregnant
employees than Title VII. Title VII, as amended by the Pregnancy
Discrimination Act of 1978, requires an employer to treat women
employees affected by pregnancy, childbirth or related medical
conditions the same as other temporarily disabled employees. 42
U.S.C. 2000e(k). Thus, under this "equity standard", an employer
is not required to hold open the job of an employee on pregnancy
related leave unless jobs are similarly held open for employees on
sick or disability leaves for other reasons. See, Pregnancy
Discrimination Act Questions and Answers, 29 CFR 1604. However,
states may enact laws which require employers to provide leave and
to reinstate employees disabled by pregnancy, childbirth or related
medical conditions. California Federal Savings & Loan Ass'n v.
Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613, 41 EPD 36,641
at 44,893-44,900 (1987). These laws are consistent with and not
preempted by Title VII. Id.
5. I therefore decline to apply the McDonnell-Douglas
circumstantial evidence disparate treatment analysis utilized by
some courts in cases involving no extended leave / no early leave
policies. See, Marafino v. St. Louis County Circuit Court, 707 F.2d
1005, 32 EPD 33,640 (8th Cir. 1983); General Electric Co. v. Iowa
Civil Rights Comm., 451 N.W.2d 13, 56 EPD 40,788 (Io. App. 1989);
Ahmad v. Loyal American Life Ins. Co., 767 F.Supp 1114, 57 EPD
40,990 (S.D. Ala. 1991); see also cases which involve mixed motives
for plaintiffs' discharge: Page v. Chandonnet, 53 EPD 39,816 (D. Md.
1989); Conners v. Univ. of Tennessee Press, 558 F.Supp 38, 31 EPD
33,521 (E.D. Tenn. 1982).
6. The regulation states:
Where the termination of an employee who is temporarily
disabled is caused by an employment policy under which
insufficient or no leave is available, such a termination
violates the Act if it has a disparate impact on employees
of one sex and is not justified by business necessity.
7. Alternatively, if this Commission finds that Page Hawaii
has a specific "no maternity leave" policy (as opposed to a "no
extended leave" policy), such policy is facially discriminatory on
the basis of sex. H.R.S.
378-1 ("because of sex" includes because of pregnancy, childbirth
or related medical conditions); H.A.R. 12-46-107, 12-46-108
(requirement that employers grant leave and reinstatement); see
also, Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187,
111 S.Ct. 1196, 113 L.Ed.2d 158, 55 EPD 40,605 at 66,168 (1991)
(discrimination based on a women's pregnancy is on its face,
discrimination because of her sex). An explicit gender based policy
may be defended only as a bona fide occupational qualification
(BFOQ). Johnson Controls, 55 EPD 40,605 at 66,169. I would
therefore decline to apply the McDonnell-Douglas circumstantial
evidence analysis utilized by the Eighth Circuit in Marafino v. St.
Louis County Circuit Court, 707 F.2d 1005, 32 EPD 33,640 (8th Cir.
1983), involving the failure to hire a pregnant attorney because she
required maternity leave.
Under H.R.S. 378-3(2), employers may establish and maintain
BFOQs reasonably necessary to the normal operation of a particular
business or enterprise that have a substantial relationship to the
functions and responsibilities of prospective or continued
employment. The burden of proving that sex is a BFOQ rests upon the
employer and such exception is strictly and narrowly construed.
H.A.R. 12-46-102. To establish BFOQs in Title VII cases,
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. Usery v. Tamiami Trail Tours, Inc.,
531 F.2d 224, 11 EPD 10,916 at 7856 (5th Cir. 1976); Dothard v.
Rawlinson, 14 EPD 7632 at 5106-5107; EEOC v. County of Santa
Barbara, 666 F.2d 373, 27 EPD 32,396 at 23,703-23,704 (9th Cir.
1982). The BFOQ defense is therefore more stringent than the
business necessity standard. Johnson Controls, supra, at 66,169.
Accordingly, I would conclude that in the present case, the
essence of Page Hawaii's business operation would not be undermined
by hiring or retention of a pregnant employee who requires six weeks
maternity leave. As discussed above, it was possible for Teague to
operate Page Hawaii alone for a period of six weeks, or for
Respondents to hire a temporary employee for six weeks. Respondents
would therefore not meet their burden of showing that Page Hawaii's
"no maternity leave" policy is a BFOQ.
8. If this Commission concludes that a "reasonable
accommodation" under H.A.R. 12-46-107 includes the granting of
maternity leave, I would again follow our disability rules and
alternatively conclude that such accommodation must be granted
unless the employer can demonstrate that the accommodation would
impose an undue hardship on the operation of its business. See,
H.A.R. 12-46-187.
H.A.R. 12-46-182 defines an "undue hardship" to mean a
"[s]ignificant difficulty or expense incurred by an employer . . .
with respect to the provision of an accommodation. Factors to be
considered include but are not limited to: a) the nature and net
cost of the accommodation; b) the overall financial resources of
the employer; c) the overall size of the business; d) the type of
operation and structure of the business; and e) the impact of the
accommodation upon the operation of the business. Therefore, in
order to show that the maternity leave requested by Complainant is
an unreasonable accommodation, Respondents must show that the leave
poses an undue hardship on the operation of Page Hawaii.
Accordingly, I would conclude that Respondents did not show
that the operation of Page Hawaii by Teague alone or the hiring of
a temporary employee would pose an undue hardship. As discussed in
section III.B.1. above, Teague could have operated Page Hawaii by
himself for six weeks or hired a temporary employee. While the
hiring of a temporary employee is more costly than the hiring of a
permanent replacement, Respondents did not show how such costs would
affect the company's overall financial resources. Furthermore, it
would appear to be less burdensome for Respondents to hire a
temporary employee, since the six weeks it takes to train an
inexperienced temporary employee until Complainant, a fully trained
employee, returns to work is much shorter than the 6-9 months
required to fully train an inexperienced permanent replacement.
9. These conclusions of law are limited to the particular
facts of this case. There may be other instances in which a "no
extended leave" policy or an employer's refusal to grant an extended
maternity leave can be justified by business necessity.
10. Complainant received $8,322 in unemployment insurance
benefits during 1992-1993. (Ex. U)
11. In its Prehearing Conference Statement and at the July 19,
1994 Prehearing conference, the Executive Director sought $20,000 in
compensatory damages for injury to Complainant's feelings, emotional
and mental well-being, physical well-being, personal integrity,
dignity and privacy, ability to effectively work, capacity to live
a successful and happy life and personal and professional
reputation. In its post hearing brief, the Executive Director
increased this amount to $75,000 without any explanation.
