Dr9dra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



In the Matter of ) DR 93-009
)
______________________, ) HEARINGS EXAMINER'S
) FINDINGS OF FACT,
Petitioners, ) CONCLUSIONS OF LAW
) AND RECOMMENDED
- - - - - - - - - - - - - - - ) ORDER; EXHIBITS A-C
)
LINDA C. TSEU, as Executive )
Director of the Hawaii Civil )
Rights Commission; JANE DOE, )
Complainant, )
)
Respondents. )
______________________________)


HEARINGS EXAMINER'S FINDINGS OF FACT, CONCLUSIONS
OF LAW AND RECOMMENDED ORDER



I. INTRODUCTION
On March 12, 1992 Complainant Jane Doe filed a complaint with
this Commission alleging that Petitioners created an offensive work
environment and terminated her because of her husband's arrest and
court record. She claims that such actions constitute unlawful
discrimination based on her marital status and her association with
a person who has an arrest and court record.
On September 16, 1993 Petitioners filed a Petition For
Declaratory Relief contending that H.R.S. sec. 378 does not protect
individuals who associate with members of a protected class,
particularly individuals who associate with persons who have arrest
and court records. Accordingly, Petitioners ask the Commission to
dismiss this claim.
On October 15, 1993 the Executive Director filed a Memorandum
In Opposition To Petition For Declaratory Ruling arguing that
discrimination because of association with any protected class,
including association with a person who has an arrest and court
record, is prohibited under H.R.S. Chapters 368 and 378.
Oral arguments on the petition were held on December 6, 1993.
The parties filed supplemental memoranda on December 20, 1993.
Having reviewed and considered the petition, memoranda filed
and the arguments presented, this Hearings Examiner hereby renders
the following findings of fact, conclusions of law and recommended
order.

II. FINDINGS OF FACT
For the limited purposes of this petition, the relevant
findings of fact are as follows:
1. Complainant was employed by Petitioners as a school
business manager. She does not have an arrest or court record.
2. Complainant's husband was also employed by Petitioners.
During the course of their employment, Complainant's husband was
arrested and subsequently pleaded guilty to a criminal charge.
3. Some time after her husband's arrest and guilty plea,
Complainant was terminated by Petitioners.
4. On March 12, 1992 Complainant filed a complaint with this
Commission alleging that Petitioners created an offensive work
environment and terminated her because of her marriage to and
association with a person who has an arrest and court record. The
investigation of this case is pending and no determination of
reasonable cause has been made.

III. CONCLUSIONS OF LAW
H.R.S. sec. 378-2(1)(A) (L. 1991) states:
It shall be an unlawful discriminatory practice:
(1) Because of race, sex, sexual orientation, age,
religion, color, ancestry, disability, marital status, or
arrest and court record:
(A) For any employer to refuse to hire or employ or to
bar or discharge from employment, or otherwise to
discriminate against any individual in compensation
or in the terms, conditions or privileges of
employment...

Petitioners argue sec. 378-2 only protects individuals who suffer
discrimination because of those individuals' own race, sex, sexual
orientation, etc. They contend that unlike the Fair Housing Act
Amendments of 1988 (FHA)[1] and the Americans With Disabilities Act
(ADA) [2], which expressly prohibit discrimination against
individuals who associate with persons with disabilities,[3] H.R.S.
sec. 378-2 does not contain specific provisions which protect
individuals who associate with members of a protected class.
The Executive Director argues that the plain language of H.R.S.
sec. 378-2 can be read to include individuals who associate with
members of any protected class. She contends that unlike Title
VII, [4] the section makes no reference to "such individual's" own
race, sex, sexual orientation, etc., and therefore includes
discrimination based on an associate's protected status.
A court or an agency's duty in interpreting a statute is to
ascertain and give effect to the legislature's intention and to
implement that intention to the fullest degree. State v. Briones,
71 Haw. 86, 92 (1989); State v. Tupuola, 68 Haw. 276 (1985). Such
intention is primarily obtained from the language of the statute
itself. Briones, supra; State v. Eline, 70 Haw. 597 (1989).
However, when the language of a statute is susceptible to more than
one interpretation, legislative history may be considered. Kam v.
Noh, 70 Haw. 321, 325 (1989)
Based on the language and legislative history of H.R.S.
sec. 378-2, as well as federal caselaw, I conclude that sec. 378-2 confers
standing only to those individuals who fall within one of the
enumerated protected classes. This can include individuals who
associate with persons of a different race, sex, sexual orientation,
age, religion, color, ancestry or marital status. However, it does
not include individuals who associate with persons who have an
arrest or court record.

A. Language and Legislative History of sec. 378-2
The original language and legislative history of sec. 378-2 show
that the legislature intended to limit protection to persons who
fall within one of the enumerated protected bases.
Chapter 378 was enacted in 1963. The original sec. 378-2 states
in relevant part:
It shall be unlawful employment practice or unlawful
discrimination:
(a) For an employer to refuse to hire or employ or to
bar or discharge from employment, any individual
because of his race, sex, age, religion, color or
ancestry, provided that an employer may refuse to
hire an individual for good cause relating to the
ability of the individual to perform the work in
question;
(b) For an employer to discriminate against any
individual in compensation or in the terms,
conditions or privileges of employment because of
race, sex, age, religion, color or ancestry . . .

Act 180, L. 1963 (emphasis added). By specifically referring to an
individual's ("his") race, sex, age, religion, color or ancestry,
the legislature intended to protect only those persons who fell
within one of the listed classes. This intent is confirmed in
Senate Standing Committee Report No. 399, which states, "[t]he
purpose of this bill is to make it unlawful for an employer to
refuse to employ, to pay less wages than other employees, to
discharge an employee because of, or to otherwise discriminate
against a person by reason of his race, color, sex, national
origin...." 1963 Senate Journal at 810.
In 1973, sec. 378-2 was amended to include arrest and court record
as a protected basis. Again, the statute limited standing only to
those individuals who had an arrest or court record. It stated:
It shall be unlawful employment practice or unlawful
discrimination:
(1) For an employer to refuse to hire or employ or to
bar or discharge from employment, any individual
because of his race, sex, age, religion, color,
ancestry, or arrest and court record which does not
have a substantial relationship to the functions and
responsibilities of the prospective or continued
employment, provided that an employer may refuse to
hire an individual for good cause relating to the
ability of the individual to perform the work in
question;
(2) For the employer to discriminate against any
individual in compensation or in the terms,
conditions, or privileges of employment because of
race, sex, age, religion, color, ancestry, or arrest
and court record
. . .

Act 54, L. 1973 (emphasis added). Again, this intent was confirmed
in the accompanying House Standing Committee Report No. 376 which
states, "[y]our Committee agrees that discrimination in employment
because a person has been arrested or involved in court proceedings
should not be permitted . . ." 1973 House Journal at 912 (emphasis
added).
In 1981 sec. 378-2 was amended to delete the word "his" to read:
It shall be an unlawful discriminatory practice:
(1) For an employer to refuse to hire or employ or to
bar or discharge from employment, or otherwise to
discriminate against any individual in compensation
or in the terms, conditions, or privileges of
employment because of race, sex, age, religion,
color, ancestry, physical handicap, marital status,
or arrest and court record . . .

Act 94, L. 1981. However, the purpose of this amendment was not to
expand sec. 378-2 to include individuals who associate with members of
a protected class, but to combine what was formerly subsections (1)
and (2). See, testimonies of Joshua C. Agsalud, Director,
Department of Labor and Industrial Relations, on H.B. 741 dated
February 26, 1981 and March 24, 1981 (certified copies attached
hereto as Exhibit A). Nowhere in the legislative history or in the
testimonies presented is there any mention of conferring standing to
persons who associate with members of all protected classes. See
also, House Standing Committee Report No. 549, 1981 House Journal at
1166; Senate Standing Committee Report No. 653, 1981 Senate Journal
at 1195; Senate Standing Committee Report No. 1109, 1981 Senate
Journal at 1363. [5]
In contrast, the legislature amended H.R.S. Chapter 515 in 1992
to specifically extend standing to persons who associate with
members of all protected classes. sec. 515-16(6) states in relevant
part:
It is a discriminatory practice for a person . . .
(6) To threaten, intimidate or interfere with persons in their
enjoyment of a housing accommodation because of the race,
sex, color, religion, marital status, familial status,
ancestry, disability, age or HIV infection of
. . . associates of such person.

This section was added to conform state law to the Federal Fair
Housing Amendments Act of 1988. See, Act 171, L. 1992; Conf. Comm.
Rep. No. 49, 1992 Senate Journal at 752. The Federal Fair Housing
Amendments Act of 1988 was enacted, in part, to expand protection to
individuals who associate with persons with disabilities. See, 42
U.S.C. sects. 3604(f)(1)(C), (f)(2)(C) cited in note 1, supra; U.S.
House Report (Judiciary Committee) No. 100-711 at 24, 100th Cong.
2nd Sess. 5 USCAAN 2184 (1988).
In 1992, a bill was introduced to similarly expand sec. 378-2 to
include persons who associate with all protected classes. See,
House Bill No. 2810 (L. 1992) (certified copy attached hereto as
Exhibit B). This Commission itself apparently recognized that
without such an amendment, all associational rights might not be
protected. See, testimony of Amefil Agbayani, Chairperson, Hawaii
Civil Rights Commission on H.B. 2810 dated February 18, 1992
(certified copy attached hereto as Exhibit C). House Bill No. 2810
was not passed.
Therefore, the legislature has yet to extend standing under
Chapter 378 to include individuals who associate with members of all
protected classes.
B. Title VII Analysis
The above reading of H.R.S. sec. 378-2 does not mean that all
individuals who associate with members of a protected class lack
protection from discrimination. Title VII does not contain
language which specifically prohibits discrimination based on
association. Yet, federal courts have granted standing to
plaintiffs who associate with persons of a different race, sex and
national origin on the basis of those plaintiffs' own race, sex and
national origin because these protected characteristics were also
reasons for the adverse actions taken. For instance, in Parr v.
Woodmen of the World Life Insurance Co., the Eleventh Circuit held
that a white man who was not hired by an insurance company because
his wife was black had standing to sue under Title VII. 791 F.2d
888, 41 EPD 36,531 at 44,378 (11th Cir. 1986). The court reasoned
that
Title VII prohibits racially discriminatory employment
practices. The statute has been held to prohibit
discrimination against white as well as black persons.
(citations omitted)
. . .
Where a plaintiff claims discrimination based upon an
interracial marriage or association, he alleges, by
definition, that he has been discriminated against because
of his race.

41 EPD 36,532 at 44,380.
In Reiter v. Center Consolidated School Dist. No. 26-JT, a
woman whose employment contract was not renewed because she
associated with the Hispanic community had standing to sue on the
basis of her own race and national origin. 618 F. Supp. 1458, 1460
(C. Col. 1985). The court concluded that because plaintiff's race
and national origin were different from those of the community she
associated with, they were factors affecting the conduct of the
defendant. Id.
In Nicol v. Imagematrix Inc., a man who was terminated because
his co-worker wife had become pregnant had standing to sue on the
basis of his own sex. 773 F. Supp. 802, 57 EPD 41,067 at 68,724 (D.
Vir. 1991). The court, in also discussing the Parr case states:
. . . In other words, a white employee who is discharged
because his spouse is black is discriminated against on
the basis of his race, even though the root animus for the
discrimination an anti-black prejudice. Similarly, the
root animus here may be an anti-pregnancy prejudice, but
the resulting discrimination is against Mr. Nichol's
gender, for only males can have pregnant spouses.

Id. However, the court specifically disallowed derivative standing
based on Mr. Nichol's wife's pregnancy, stating:
Defendants contend that Mr. Nichol is asserting third
party standing on the basis of his wife's pregnancy and
that such derivative standing is not contemplated under
Title VII. This Court agrees; third party standing is not
adequate for a prima facie Title VII claim. But this
argument misses the point, for Mr. Nichol is asserting
standing on the basis of his own sex. Thus, in
recognizing Mr. Nichol's standing, this Court has not
opened the door to other derivative suits under the
Pregnancy Discrimination Act.

Id., at 68,725 (emphasis added).

Similarly, under H.R.S. sec. 378-2, an individual who is subject
to a discriminatory practice because of his or her association with
a person of a different race, sex, sexual orientation, age,
religion, color, ancestry or marital status has standing to file a
complaint based on that individual's own race, sex, sexual
orientation, age, religion, color, ancestry or marital status. The
same analysis applies to these bases since they are protected
characteristics held by all persons[6] which can affect the conduct
of an employer. Thus, a heterosexual complainant who is fired
because she associates with homosexuals has standing based on her
own sexual orientation; a young job applicant who is not hired
because he lives with his elderly parents has standing based on his
own age; a Christian who is fired because she associates with
Muslims has standing based on her own religion; a married woman who
is not promoted because she associates with single males has
standing based on her own marital status.
However, the above legal analysis is inapplicable to
individuals who associate with persons that have arrest or court
records. The protected basis of having an arrest and court record
is not a characteristic held by all persons. As defined in sec. 378-1,
it does not include individuals who don't have arrest or court
records. The parties agree that sec. 378-2 prohibits discrimination
against persons who have arrest or court records and does not
protect individuals with no records. Thus, individuals with no
arrest or court records who associate with persons who do, are not
covered by the general prohibitory language of sec. 378-2. Such
individuals must be specifically protected under some other
statutory provision.[7] Presently, H.R.S. Chapter 378 does not do
this.

IV. RECOMMENDED ORDER
I do sympathize with Complainant Doe and any other individual
who may be a victim of discrimination based on their association
with a person who has an arrest and court record. I also recognize
the important public policy reasons for prohibiting such
discrimination under Chapter 378. Unfortunately, the legislature
has yet to amend the statute to afford this protection.[8]
Furthermore, under the Title VII analysis discussed above,
Complainant can neither assert standing based on her own lack of an
arrest and court record, nor assert derivative standing based on her
husband having an arrest and court record.
I therefore recommend that the Commission conclude that an
individual who associates with a person of a different race, sex,
sexual orientation, age, religion, color, ancestry or marital status
has standing to assert a claim under H.R.S. sec. 378-2 on the basis of
that individual's own race, sex, sexual orientation, age, religion,
color, ancestry or marital status.
I also recommend that the Commission conclude that an
individual who associates with a person who has an arrest and
court record does not have standing to assert a claim under
H.R.S. sec. 378-2.
I accordingly recommend that the Commission direct the
Executive Director to dismiss Complainant's claim based on this
theory. The dismissal of this claim, however, does not affect
Complainant's standing to assert claims based on her marital status
or any other theories.

Dated: Honolulu, Hawaii, January 4, 1994.


HAWAII CIVIL RIGHTS COMMISSION



______________________________
LIVIA WANG
Hearings Examiner


Copies sent to:

Frederick R. Troncone, Esq. Attorney for Petitioners
Anne Randolph, Esq. HCRC Enforcement Attorney

-----------------------------------------------

footnotes:

1. 42 U.S.C. sects. 3604(f)(1)(C), (f)(2)(C) state:
. . . it shall be unlawful-
. . .
(f)(1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or
renter because of a handicap of-
. . .
(C) any person associated with that buyer or renter.
(f)(2) To discriminate against any person in the terms,
condition, privileges of sale or rental of a dwelling or in the
provision of services or facilities in connection with such
dwelling, because of a handicap of-
. . .
(C) any person associated with that person.

2. 42 U.S.C. sec. 12112(b)(4) states in relevant part:
. . . the term "discriminate" includes
. . .
(4) excluding or otherwise denying equal jobs or benefits to
a qualified individual because of the known disability of an
individual with whom the qualified individual is know to have
a relationship or association . . .

3. See also, H.R.S. sec. 515-16(6), infra, which contains
specific language that prohibits discrimination in housing against
persons who associate with members of a protected class.

4. 42 U.S.C. sec. 2000e(2)(a)(1) states:
It shall be an unlawful employment practice for an employer to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions or privileges of
employment, because of such individual's race, color, religion,
sex or national origin. (Emphasis added.)

5. In 1991, sec. 378-2 was amended to its present form.
However, the purpose of such amendment was to add sexual orientation
as a protected basis, and to make nonsubstantive technical changes
for clarity and style. See, Act 2,
L. 1991; Senate Standing Committee Report No. 506, 1991 Senate
Journal at 956.

6. Like race, sex and national origin, the terms "sexual
orientation", "age", "religion" and "marital status" encompass
characteristics held by all persons. Under sec. 378-1, the term
"sexual orientation" means having a preference for heterosexuality,
homosexuality or bisexuality; the term "marital status" means the
state of being married or single. The term "age" means the period
of a person's lifetime and is not restricted to persons over the age
of forty. Senate Standing Committee Report No. 573, 1963 Senate
Journal at 867; Administrative Rules 12-46-131, 12-46-134.
Administrative Rule 12-46-1 defines "religion" to include all
aspects of religious observance, practice and belief. This is the
same definition used in Title VII, which has been interpreted to
include atheism, as well as moral and ethical beliefs as to what is
right and wrong which are sincerely held with the strength of
traditional religious views. See, Young v. Southwestern Savings &
Loan Assn. 509 F.2d 140, 9 EPD 9995 (5th Cir. 1975); EEOC
Regulations on Religion Discrimination, 29 CFR Part 1605 (1985).

7. Similarly, the protected basis of having a "disability"
is not a characteristic held by all persons. Sec. 378-1 defines
"disability" to mean the state of having a physical or mental
impairment which substantially limits one or more major life
activities, having a record of such an impairment, or being regarded
as having such an impairment. It does not include people who are
not disabled. Sec. 378-2 therefore does not protect persons who are
not disabled. See, Ortner v. Paralyzed Veterans of America, 59 BNA
1361, 59 EPD 41,807 (Sup. Ct. D.C. 1992) (D.C. Human Rights Act does
not protect non disabled person who was terminated and replaced by
a disabled person).

Thus, non disabled individuals who associate with disabled
persons are specifically protected by other statutory provisions.
See, 42 U.S.C. Sec. 12112 (ADA employment provisions, supra, note 2);
42 U.S.C. Sec. 3604 (FHA provisions, supra, note 1); H.R.S. Sec. 515-6(6)
(housing discrimination, supra); see also, Code of Ala. Sec. 24-8-4(6)
(housing); Co. RS sec. 24-34-502.2 (housing); Conn. GS sec. 46a-64c(6)(A)
(housing); Fla. St. Ann. sec. 760.23(7)(c) (housing); Ind. St. Ann. sects.
22-9-5-7(4) (employment), 22-9.5-5-5(a)(3) (housing); Mont. Code
Ann. sec. 49-2-305(4) (housing); Okl. St. Ann. 25 sec. 1452(A)(15)
(housing); Tenn. Code Ann. sec. 4-21-601(7) (housing); Code of Va. sec.
36-96.3(8),(9) (housing).

8. As pointed out in the Executive Director's Supplemental
Memorandum, Minnesota has a specific statutory provision in its
Human Rights Act which protects individuals who associate with
members of all protected classes. See, Minn. St. Ann. sec. 363.03
subd. 7(2).