Dr9fin.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


In the Matter of ) DR 93-009
)
, )
)
Petitioners, )
)
- - - - - - - - - - - - - - - )
)
LINDA C. TSEU, as Executive )
Director of the Hawaii Civil )
Rights Commission; JANE DOE, )
Complainant, )
)
Respondents. )
)


FINAL ORDER ADOPTING IN PART THE
HEARINGS EXAMINER'S RECOMMENDED ORDER

I. INTRODUCTION
This Petition was filed on September 16, 1993, seeking a
declaration that Chapter 378, Part I, Hawaii Revised Statutes, does
not protect an individual from discrimination because of that
individual's association with other persons who have arrest and
court records. On November 9, 1993, the Commission assigned the
Petition to the Hearings Examiner pursuant to H.A.R. sec. 12-46-
63(b)(3). The chronology of events in the Introduction section of
the Hearings Examiner's Findings of Fact, Conclusions of Law and
Recommended Order ("Hearings Examiner's Order") are adopted by the
Commission.
After the filing of the Hearing Examiner's Order on January 4,
1994, the Respondents filed written exceptions on January 19, 1994.
Petitioners filed a memorandum in opposition on January 25, 1994.
The Commission held a hearing for the parties to present oral
argument on March 2, 1994.

II. PRELIMINARY MATTERS
At oral argument, Petitioners submitted an exhibit consisting
of written testimony provided by the Commission on February 4, 1994
to the Senate Committee on Labor and Employment on Senate Bill No.
2630.[1] Respondents did not object to the submission. The
Commission hereby accepts the exhibit into the record as
Petitioners' Exhibit A.
After oral argument on March 4, 1994, Petitioners submitted a
post argument memorandum which had not been requested by the
Commission. On March 8, 1994, Respondents filed a motion to strike
the memorandum. The Commission hereby grants the motion to strike
in this instance because the Commission did not request additional
briefs from the parties.

III. FINDINGS OF FACT
The parties did not take exception to the Hearings Examiner's
Findings of Fact. The Commission hereby adopts the Findings of Fact
in the Hearings Examiner's Order. To summarize, Respondent Jane Doe
worked for Petitioners and does not have an arrest and court record.
However, Respondent Doe's husband, who also worked for Petitioners,
was arrested and pleaded guilty to a criminal charge. Respondent
Doe filed a complaint with the Commission alleging that Petitioners
had created an offensive work environment and terminated her
employment because of her association with an person with an arrest
and court record and because of her marital status.[2]

IV. CONCLUSIONS OF LAW
H.R.S. sec. 378-2 prohibits employers from discriminating against
any individual because of arrest and court record[3]. H.R.S. sec. 378-
2(A) provides:
[i]t shall be a discriminatory practice [b]ecause of ...
arrest and court record [f]or any employer to refuse to
hire or employ or bar or discharge from employment, or
otherwise to discriminate against any individual in
compensation or in the terms, conditions, or privileges
of employment; . . . .
The Petition raises the issue of whether individuals, with no
arrest and court record, who are associated by marriage, friendship,
or otherwise with a person who has an arrest and court record, are
protected from an employer's discriminatory acts. Petitioners argue
that the protections against employment discrimination do not apply
to those associated with persons with arrest and court records.
Respondents disagree and argue that individuals who are associated
with persons with arrest and court records are protected. The
Hearings Examiner recommended that the Commission find no
associational protections for arrest and court record
discrimination. The Commission agrees with the Petitioners and the
Hearings Examiner.

V. DISCUSSION
H.R.S. sec. 378-2 clearly protects individuals with arrest and
court records from discrimination in employment. However,
protections against discrimination because of association with a
person with an arrest and court record are unclear.
In determining whether such protections exist, the Commission
must interpret the statute. Respondents argue that the plain
language of H.R.S. sec. 378-2 can be read to protect individuals who
associate with members of any protected class because unlike Title
VII of the Civil Rights Act, 42 U.S.C. sec. 2000e(2)(a)(1), [4] our
statute makes no reference to "such individual's" race, sex, or
other protected class, and the deletion of the word "his" before the
enumerated protected classes[5] in 1981 broadens the category of
protected persons by eliminating any requirement that the
discrimination result because of a person's own arrest and court
record. Finally, Respondents argue that the legislative history
indicates a strong public policy against any discrimination, and
thus, the law should be extended to protect those who are
discriminated against because of their association with persons with
arrest and court records.
Petitioners argue that H.R.S. sec. 378-2 does not expressly
prohibit associational discrimination and the legislative history
does not indicate any intent to include associational discrimination
within its protection. At oral argument, Petitioners contended that
the statutory amendment which deleted the word "his" but kept the
words "any individual" was done for the purpose of making the
provision gender neutral and not to add associational protections.
Transcript of Oral Argument, p. 9-10. The Commission believes the
original language of H.R.S. sec. 378-2 and its legislative history
indicate that the Legislature intended to limit protections to
individuals who fall within any of the enumerated protected classes.
Senate Stand. Comm. Rep. No. 399, 1963 Senate Journal at 810. The
addition of arrest and court record as a protected class was
intended by the Legislature to protect individuals who had arrest
and court records. House Stand. Comm. Rep. No. 376, 1973 House
Journal at 912. The 1981 amendment to H.R.S. sec. 378-2 which deleted
"his" before the enumerated protected classes was intended to
combine two subsections, not to expand the scope of the statute to
add associational protections. See, Testimony of Joshua C. Agsalud,
Director of Department of Labor and Industrial Relations on H.B. No.
741 (February 26 and March 24, 1981).
The Commission interprets H.R.S. sec. 378-2 to require that the
individual's membership in one of the enumerated protected classes
be part of the reason for the discrimination. Based upon this
analysis, the Commission concludes that H.R.S. sec. 378-2 does not
prohibit discrimination because of an individual's association to
another person with an arrest and court record.
The Commission recognizes the unfairness and irony of denying
protections to Jane Doe, a person who is not a criminal nor has a
record of any involvement with the criminal justice system, if, in
fact, she was discriminated against in employment because of her
husband's arrest and court record. Unfortunately, under Hawaii law
and the federal cases[6] which have found associational protections,
the Commission does not believe that it has the power or authority
to investigate a complaint alleging associational discrimination
because of the arrest and court record of another person.

VI. FINAL DECISION AND ORDER
The Commission hereby adopts as its Final Decision and Order
the Hearings Examiner's recommendations that:
1) There is no standing under H.R.S. sec. 378-2 for an
individual, without an arrest and court record, who associates with
another individual with an arrest and court record;
2) Respondent Doe cannot assert standing because of her own
lack of an arrest and court record or derivative standing based upon
her husband's arrest and court record; and
3) The Executive Director dismiss Respondent Doe's complaint
based discrimination because of her association to an individual
with an arrest and court record.
This does not affect Respondent Doe's standing to assert claims
based upon her marital status or under any other theories. The
Commission declines to adopt the Hearings Examiner's recommendation
that it conclude that there is associational standing for race, sex,
sexual orientation, age, religion, color, ancestry, or marital
status under H.R.S. sec. 378-2. The issue of standing for other
protected classes was not involved in the petition and need not be
decided at this time. By declining to adopt this part of the
Hearings Examiner's recommendation, no inference should be drawn
that there are no protections against discrimination because of
association to another person if an individual's own membership in
a protected class is implicated by the discriminatory practice.

DATED: Honolulu, Hawaii


Amefil Agbayani, Chair

Josephine Epstein, Commissioner

Jackie Mahi Erickson, Commissioner

Richard Port, Commissioner


CIVIL RIGHTS COMMISSION

STATE OF HAWAI'I


In the Matter of ) DR 93-009
)
, )
)
Petitioners, )
)
- - - - - - - - - - - - - - - )
)
LINDA C. TSEU, as Executive )
Director of the Hawaii Civil )
Rights Commission; JANE DOE, )
Complainant, )
)
Respondents. )
______________________________)


DISSENT BY COMMISSIONER DAPHNE E. BARBEE-WOOTEN
The legislative purpose of Section 378-2(1)(A), HRS,
(Discriminatory practices made unlawful), is to prohibit
discrimination in employment based upon several protected bases.
The statute states, in pertinent part, that, "[i]t shall be an
unlawful discriminatory practice [b]ecause of . . . arrest and court
record [f]or any employer to refuse to hire or employ or bar or
discharge from employment, or otherwise to discriminate against any
individual in compensation or in the terms, conditions, or
privileges of employment; . . . ."
In the instant petition for declaratory relief, it is alleged
that a woman was terminated by her employer because of her husband's
arrest and court record. I disagree with the other Civil Rights
Commissioners who feel that since she was terminated because of her
husband's arrest and court record, her complaint should be
dismissed.
The majority of the Commissioners believe that the statute
cannot be interpreted to protect Jane Doe from discrimination. I
disagree. If the employer's actions against an employee violate the
spirit and purpose of section 378-2(1)(A), HRS, which is to prevent
discrimination on the basis of arrest and court record, then the
complaint should be accepted for processing. The Legislature felt
that eliminating discrimination on this basis was important enough
to be specifically included as an Unlawful Discriminatory Practice.
To disallow the complaint would be contrary to the legislative
intent and purpose of Section 378-2(1)(A), HRS.
I strongly feel that the employer's actions and reasons for the
actions should be considered in determining whether the complaint
should be dismissed outright, or investigated and processed through
the Civil Rights Commission. By analogy, if a person was fired for
being married to someone of a different racial or religious
background than the employer, this is still discrimination on the
basis of race or religion. It is the "root animus" for the unlawful
action which should be considered, as this "root animus" is the evil
which the statute seeks to eliminate.
It is unfair that a person who is terminated just for being
married to someone with an arrest and court record has no protection
under the law, while a person with an arrest and court record is
entitled to file a complaint, even though both are subjected to the
same unlawful treatment which the statute prohibits, i.e. being
discharged because of an arrest and court record.
Therefore, I would allow the complaint to proceed through the
investigative and administrative process in the Civil Rights
Commission.

DATED: Honolulu, Hawaii


DAPHNE E. BARBEE-WOOTEN,
Commissioner



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

footnotes:

1. Senate Bill No. 2630 proposed to amend H.R.S. sec. 378-2 to
prohibit employment discrimination against non-disabled persons
because of their association to a person with a disability. It
would also amend H.R.S. sec. 489-5 to prohibit similar discrimination
by a place of public accommodations.

2. The investigation of the complaint is pending and no
determination of reasonable cause has been made. Petitioners have
denied the allegations of the complaint.

3. In H.R.S. sec. 378-1, "arrest and court record" is defined to

include[] any information about an individual having been
questioned, apprehended, taken into custody or detention,
held for investigation, charged with an offense, served
a summons, arrested with or without a warrant, tried, or
convicted pursuant to any law enforcement or military
authority.

4. 42 U.S.C. sec. 2000e(2)(a)(1) provides:

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.

5. H.R.S. sec. 378-2 (1963) provided 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 ....

(Emphasis added). H.R.S. sec. 378-2 (1981) eliminated the word "his"
and provided in relevant part:

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 . . . .

6. Federal courts have found associational protections under Title
VII of the Civil Rights Act for race, sex, and national origin
discrimination. See, e.g., Parr v. Woodmen of the World Life
Insurance Co., 791 F.2d 888 (11th Cir. 1986); Reiter v. Center
Consolidated School Dist. No. 26-JT, 618 F.Supp. 1458 (D. Colo.
1985); Nicol v. Imagematrix Inc., 773 F.Supp. 802 (D. Va. 1991).
These cases found standing for plaintiffs, who associated with
persons of a different race, sex, or national origin, based upon the
plaintiff's own race, sex, and national origin. In other words,
these cases did not find broad associational standing rights but
found that plaintiff's own membership in a protected class was
implicated by the alleged discriminatory conduct and that such
conduct is proscribed by Title VII of the Civil Rights Act.