Dr3ord.txt
HAWAII CIVIL RIGHTS COMMISSION
STATE OF HAWAII
) Docket No. DR 92-003
Petitioner, )
)
vs. )
)
LINDA C. TSEU, Executive )
Director, Hawaii Civil Rights )
Commission, )
)
)
Respondents )
)
ORDER GRANTING PETITION FOR DECLARATORY RELIEF
I. INTRODUCTION
Petitioner filed a Petition for Declaratory Relief on
April 29, 1992, seeking a declaration whether "sex-differentiated
hair length regulations that are not used to prevent or hinder the
employment of one sex group as compared to another constitutes a
discriminatory practice under 378-2(1) Haw. Rev. Stat." Petition
at 3.
The Executive Director filed a Memorandum in Opposition
on May 19, 1992, pursuant to a Stipulation filed on May 13, 1992,
which agreed to an extension of fifteen day filing deadline. On May
26, 1992, the Executive Director filed as an exhibit to the
Memorandum the grooming standards of the EEOC Compliance Manual,
Section 619.
II. DISCUSSION
A. REDACTION OF THE PETITION
As a preliminary matter, the Commission will discuss the
propriety of redacting portions of the Petition. The Commissioners
were provided with copies of the Petition which had the parties'
identities and facts, unrelated to the issue, redacted by Commission
Counsel. The Parties were notified and provided with copies of the
redacted petition.[1] Redaction was done because the case may
subsequently come before the Commissioners in a hearing on the
merits; the redacted parts contain matters which could become
factual issues in the merits hearing; and they were deemed
unnecessary to decide the Petition.
The Commission approves of redaction by its Counsel[2] in
cases which have not been docketed for hearing where an
investigation has not been conducted nor a cause determination made,
as long as the Commission has enough information to properly decide
the Petition.[3] The Commission is concerned that it may later be
precluded from deciding the merits of the case if disputed factual
matters are presented. The official Commission file will consist of
the redacted documents.
B. SEX-DIFFERENTIATED GROOMING STANDARDS
Petitioner contends that the majority of courts which have
considered the issue have held that sex-differentiated grooming
standards do not constitute unlawful discrimination based upon sex.
See e.g., Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973);
Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th
Cir. 1975). The majority of these courts have decided the issue in
the context of Title VII of the Civil Rights Act of 1964. There are
no Hawaii cases which have decided the issue under state employment
discrimination law, H.R.S. Chapter 378. Petitioner seeks a
declaration that its grooming standards which establish different
hair length requirements for males and females do not violate state
law prohibiting employment discrimination based upon sex.
The Executive Director's Memorandum in Opposition agrees
with the Petition to the extent that sex-differentiated grooming
standards do not constitute sex discrimination under H.R.S. 378-
2(1). However, The Executive Director takes the position that an
investigation should be permitted to determine if such grooming
standards are being discriminatorily enforced based upon sex or any
other protected basis as allowed under EEOC guidelines. Under EEOC
guidelines, sex-differentiated grooming standards are considered not
to be per se discrimination on the basis of sex, however, EEOC
conducts an inquiry into the enforcement by the employer of such
grooming standards.[4]
III. DECISION
The Commission hereby grants the Stipulation to extend the
fifteen day period to file the Memorandum In Opposition. In light
of the Executive Director's agreement with the Petitioner's
position, the Commission hereby decides that sex-differentiated hair
length standards do not per se constitute sex discrimination in
violation of H.R.S. 378-2(1). This decision is only limited to
hair length standards and does not encompass facial hair standards,
such as beards and mustaches, or other grooming standards. The
Commission did not have facial hair or any other grooming standards
before it other that hair length. This decision does not cover
grooming standard challenges based upon racial, religious, or other
protected bases other than sex.
The Commission also adopts the EECO guidelines insofar as
they permit an investigation into whether sex-differentiated hair
length standards are being discriminatorily enforced on the basis of
sex or any other protected basis.
IV. ORDER
IT IS HEREBY ORDERED THAT the Petition for Declaratory
Relief is summarily granted under the authority of H.A.R. 12-46-
63(b)(1). The Commission declares that sex-differentiated hair
length standards do not per se consitute discrimination based upon
sex. The Commission is authorized to investigate sex-differentiated
hair length cases under the EEOC guidelines to determine if there is
discriminatory enforcement of these standards.
Petitioner may seek reconsideration under H.A.R. 12-46-
38 by filing a motion with ten days of receipt of this order.
Petitioner may seek judicial review in the circuit court under
H.R.S. 91-8 and 14 within thirty days after service of the final
decision and order.
Dated: Honolulu, Hawaii, June 9, 1992.
Amefil Agbayani
Chairperson
Hawaii Civil Rights Commission
--------------------------------------------
footnotes:
1. Petitioner objected to the redaction of the Petition by
letter sent on May 12, 1992, which contended that there was no
authority to support redaction under the Commission's rules.
Petitioner contended that the parties' identities and statement of
facts were required by the rules. Aside from this general
objection, Petitioner has not argued that the redaction would
prevent the Commission from properly considering the Petition.
2. Commission Counsel assists the Commissioners in carrying
out the Commission's adjudication functions. Counsel is not
involved in matters related to the Commission's enforcement
functions which are delegated to the Executive Director. The
Commission's enforcement attorneys prepared the Executive Director's
memorandum.
3. In some instances, redaction may also be necessary in cases
which have been docketed for a merits hearing. After any redaction,
Commission Counsel is directed to provide copies of the redacted
documents to the parties and inquire if there is sufficient
information to decide the Petition.
4. It appears that Petitioner agrees with the proposition that an
inquiry can be made to determine if grooming standards are being
discriminatorily enforced. Petitioner's statement of the issue
acknowledges that grooming standards are permissible if they are not
"used to prevent or hinder the employment of one sex group as
compared to another." Petition at 3.
