HAWAl'I CIVIL RIGHTS COMMISSION

2017-2018 Annual Report

David Y. lge, Governor

Leonard Hoshijo, Director

Department of Labor & Industrial Relations

Linda Hamilton Krieger

Commission Chair

William D. Hoshijo
Executive Director

830 Punchbowl Street, Room 411

Honolulu, Hawai'i 96813
Telephone: (808) 586-8636
Facsimile: (808) 586-8655
 Table of Contents

Mission Statement .................... ......... ......... ....... ........... ...... .. .................... 1

Overview ................................................................................................... 1

• The State of Hawai'i's Constitutional Civil Rights Mandate .. .. . . . .. . .. . . . 1

• Looking Forward: Strengthening Civil Rights Law Enforcement ......... 1
• Fair and Effective Enforcement - History and Structure of the HCRC.. 3
• An Effective and Uniform Enforcement Scheme .................................. 3
• A Fair Administrative Process .............................................................. 4
• Civil Rights Law Enforcement: State & Federal Law .......................... 4

Mediation Program .. .. ........ .. ... .. .. .. .. ... ...... .. ... ... .. .. ....... .. .. ... .. .. .. ...... ... ... .. ... . 5

Public Education and Outreach ................................................................ 7

Caseload Statistics ............ ................ ...................... ......................... ........ 8

• Intake .. .. .. ... .. .. .. .. .. .. .. .. ....... .. .... .... ... .. .. .. ..... ............ ..... ....... ........ .......... 9
• Closures .............................................................................................. 10
• Employment Cases............................................................................... 12
• Housing Cases (Real Property Transactions) ...................................... 13
• Public Accommodations Cases ............................................................. 14
• Access To State & State-Funded Services Cases .............................. 15
• Cause Cases ....................................................................................... 15

Case Settlements ... .. .. .... ... .. ..... .. ..... .. ... ......... .. .... .. .. .. .. ... .. .. .... ...... . ... ... .. ... . 16

Case Decisions ......................................................................................... 19

Legislation................................................................................................... 20

Appendix ...... ..... .. .................... .... ............... .......... ... ................... ............... 22
• Overview .. .. .. ... .. ..... .. ... .. .. .... .. .. .... .. .. .. .. ... .. . .. ..... .......... . .... .. .... .. .. ... .... .. . 22
• Administrative Procedure .................................................................... 23
• HCRC Commissioners ........................................................................ 28
• HCRC Staff ......................................................................................... 30
Mission Statement

The mission of the Hawai'i Civil Rights Commission is to eliminate discrimination

by protecting civil rights and promoting diversity through enforcement of anti-
discrimination laws and education.

Overview

The State of Hawai'i's Constitutional Civil Rights Mandate

Article I, Section 5 of the Hawai'i Constitution is the foundation of our state civil
rights laws. It provides that: "No person shall ... be denied the enjoyment of the
person's civil rights or be discriminated against in the exercise thereof because of
race, religion, sex or ancestry." There is no counterpart to this civil rights
mandate in the U.S. Constitution.

Looking Forward: Strengthening Civil Rights Law Enforcement and

Expanding the HCRC Mediation Program

In Fiscal Year (FY) 2018-2019 and going forward, the Hawai'i Civil Rights
Commission (HCRC) will continue to focus its efforts on strategic use of
resources to strengthen civil rights law enforcement. To the extent possible,
more enforcement resources will be dedicated to investigation, conciliation, and
litigation of strong "cause" cases, where there is reasonable cause to believe that
unlawful discrimination has occurred.

From 2008-2015, the HCRC focused on rebuilding capacity after losing 8 of 30

permanent positions and 3 of 11 permanent investigator positions due to the
recession, budget cuts, and reduction in force (RIF). During this period, loss of
staffing directly resulted in loss of capacity to timely and effectively investigate
discrimination complaints. The investigation caseload grew from 271 cases at
the end of FY 2007 to a high of 527 at the end of FY 2012. The size and age of
the investigation caseload had a negative effect on timely and effective
investigation and enforcement. Older cases are more difficult to investigate,
conciliate, and litigate.

While lost capacity not been restored, an emphasis has been placed on better
use of available resources. Concerted efforts have been made to reduce the
size of the investigation caseload, to be in a better position to dedicate more
resources to strong cases that should be investigated, with issuance of notices of
reasonable cause to believe unlawful discrimination has occurred, conciliated,
and litigated.

For most of FY 2018, the HCRC faced staffing challenges, with 3 of 8

investigator positions vacant due to experienced investigators leaving either for
attorney jobs or to relocate out of state, and a fourth investigator was out on an
extended leave. As a result, the HCRC operated at a 50% investigation capacity
for much of the year. By the end of the fiscal year, the three vacancies were
filled and the fourth investigator returned, restoring full capacity entering FY
2019, contingent on orientation and training of the new investigators.

Despite the challenges imposed by lower investigation capacity due to vacancies

during FY 2018, the HCRC continued efforts to maintain and develop strong
enforcement, with a strategic emphasis on dedicating resources to priority cases,
taking incremental steps toward strengthening civil rights law enforcement,
allowing for better use of finite resources for effective and efficient investigation,
conciliation, and litigation of discrimination complaints. Faced with turnover in
staffing, the HCRC worked toward an integrated investigation process, with all
investigators able to handle investigations from intake through disposition. This
improves efficiency and continuity in investigation, with more well-rounded and
supported investigators.

This continued emphasis on strengthened enforcement yielded 29 reasonable

cause recommendations in FY 2018, up from 13 in FY 2017, and 25 in FY 2016,
with 29 conciliation settlement agreements in cause cases in FY 2018 with
monetary settlements totaling $391,485. In addition to these conciliation
settlements in cause cases, the HCRC closed 59 cases based on settlements
prior to an investigative finding in FY 2018 with monetary relief totaling $464,211.
In addition to monetary relief, the HCRC seeks and obtains non-monetary
affirmative relief in all settlements to which the HCRC is a party, to stop
discriminatory conduct, prevent future harm, and avoid future violations of law.

Going forward, the HCRC will continue to build on these efforts, to increase,
marshal, and dedicate staff time and resources on strong cause cases to the
extent possible, in order to strengthen civil rights law enforcement.

During FY 2018, HCRC enforcement efforts were bolstered by planning for and
initiation of an HCRC Fair Housing Mediation Pilot Program.

Since 1999 the Hawaii Civil Rights Commission ("HCRC") has had a very
successful voluntary mediation program, through which mediators help
complainants and respondents discuss, clarify, and settle HCRC discrimination
complaints. All types of complaints filed with the HCRC were eligible for
voluntary mediation, except for fair housing complaints, due to stringent case
processing requirements imposed by a cooperative agreement with the
Department of Housing and Urban Development (HUD).

In 2016 the HCRC began to explore the possibility of expanding its mediation
program to include fair housing complaints. Drawing on HU D's guidance and
utilizing HUD training funds, the HCRC conducted extensive research on a
number of model fair housing mediation programs, including making site visits to
sister agencies in Arizona and California. After much deliberation and planning,
the HCRC launched its housing mediation pilot program, with the first mediation
taking place in March 2017. In contrast to the HCRC's existing procedure of
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referring non-housing complaints to third-party mediators, it was decided that fair
housing mediations in the pilot program would be conducted in-house by the
HCRC mediation program specialist.

The fair housing mediation pilot program has been a great success, allowing
parties to achieve just resolution without resort to enforcement (investigation,
conciliation, and litigation). During FY 2019, the HCRC plans continued
development of the fair housing mediation program, establishing it as an ongoing
program that is no longer a "pilot" program, while increasing capacity to
effectively coordinate and expand the existing mediation program for non-
housing cases. This will result in just resolution of more cases through
mediation, and increase effective and efficient use of existing enforcement
resources.

Fair and Effective Enforcement - History and Structure of the HCRC

The HCRC was organized in 1990 and officially opened its doors in January
1991. For twenty-eight years the HCRC has enforced state laws prohibiting
discrimination in employment (HRS Chapter 378, Part I), housing (HRS Chapter
515), public accommodations (HRS Chapter 489), and access to state and state-
funded services (HRS §368-1.5). The HCRC receives, investigates, conciliates,
and adjudicates complaints of discrimination.

The HCRC currently has four (4) uncompensated volunteer Commissioners, with
one vacancy. They are appointed by the Governor, with the consent of the
Senate, based on their knowledge and experience in civil rights matters and
commitment to preserve the civil rights of all individuals. The HCRC is attached
to the Department of Labor & Industrial Relations (DLIR) for administrative
purposes.

An Effective and Uniform Enforcement Scheme

Prior to the establishment of the HCRC, jurisdiction over state anti-discrimination

laws was split among several state departments. Enforcement was limited and
sporadic. State prosecution of discrimination complaints was virtually non-
existent. Nearly all aggrieved were left with litigation of individual lawsuits as
their only recourse. For complainants who could not afford private attorneys to
seek remedies in court, there was no administrative process to adjudicate their
claims. As a result, few employment discrimination cases were brought to court
under state law, and there were few court interpretations of state Jaw.

The intent of the legislature in creating the HCRC was " ... to establish a strong
and viable commission with sufficient ... enforcement powers to effectuate the
State's commitment to preserving the civil rights of all individuals." 1

1 1989 House Journal, Standing Committee Report 372

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The cornerstone of the HCRC statutory scheme was the establishment of a
uniform procedure "... designed to provide a forum which is accessible to anyone
who suffers an act of discrimination." 2

A Fair Administrative Process

The HCRC is committed to, and its procedures are structured to ensure fairness
to both complainants and respondents. The HCRC is divided into two separate
and distinct sections: a) the enforcement section, which receives, investigates,
and prosecutes discrimination complaints; and b) the adjudication section, which
conducts hearings, issues orders and renders final determinations on
discrimination complaints filed with the HCRC.

The Commissioners have delegated HCRC enforcement authority to the

Executive Director. The Commissioners have authority to adjudicate and render
final decisions based on the recommendations of their hearings examiners, and
oversee the adjudication section through their Chief Counsel.

The Commissioners, Chief Counsel, and hearings examiners are not involved in
or privy to any actions taken by the Executive Director in the investigation and
pre-hearing stages of the HCRC process. Ukewise, the Executive Director and
enforcement section are not permitted to communicate ex parte with the
Commissioners, Chief Counsel or hearings examiners about any case.

The HCRC investigates discrimination complaints as a neutral fact-gatherer. At

the conclusion of an investigation, a determination is made whether or not there
is reasonable cause to believe unlawful discrimination has occurred.

The law requires filing of a complaint with the HCRC in most (but not all) cases
before filing a discrimination lawsuit in state court. 3 Otherwise, the state courts
will dismiss a lawsuit for failure to exhaust administrative remedies. This
requirement reduces court caseloads by eliminating claims which are non-
jurisdictional, or non-meritorious, or complaints that are closed or settled through
the HCRC administrative process. As a result, the great majority of cases filed
with the HCRC are resolved, reach disposition, and are closed without resort to
the courts.

Civil Rights Law Enforcement: State & Federal Law

Federal fair employment and fair housing laws are enforced by the U.S. Equal
Employment Opportunity Commission (EEOC) and U.S. Department of Housing

3 Pursuant to HRS § 378-3(1 O) an employee may file a direct civil action for sexual
harassment. Similarly, pursuant to HRS§ 515-9(b}, an aggrieved person may file a direct
civil action for fair housing complaints. While the statutes allow these direct civil actions in
these cases, only a small number are filed; the great majority of complaints are still filed with
the HCRC.
4
and Urban Development (HUD) Office of Fair Housing and Equal Opportunity
(FHEO), respectively. Pursuant to work share and cooperative agreements, both
EEOC and HUD rely on the HCRC to investigate complaints filed under both
state and federal law ("dual-filed" complaints). Both EEOC and HUD contracts
require maintenance of state effort and dedication of state resources for
investigation of dual-filed complaints.

While Hawai'i and federal fair employment and fair housing laws are similar, they
are not identical. Hawai'i has more protected bases than federal law, and there
are substantial differences in the definition of "employer" and the statute of
limitations for filing charges of employment and housing discrimination. In
addition to these jurisdictional differences, Hawai'i law provides stronger
protections against pregnancy discrimination and sexual harassment in
employment.

The greater protections in Hawai'i law are attributable to the strong civil rights
mandate contained in the Hawai'i State Constitution, HCRC statutes, HCRC
rules, HCRC Commission and state court decisions. In contrast, federal court
interpretations of federal civil rights laws have historically resulted in narrower
protections against discrimination. The issue of state versus federal standards is
an important one, particularly in states like Hawai'i that have a strong
commitment to equal opportunity and non-discrimination.

Mediation Program

The HCRC's voluntary mediation program completed its nineteenth full year on
June 30, 2018. The program enjoyed a productive year, with much focus on the
successful growth of the HCRC's new pilot program for the mediation of housing
complaints.

Complainants, respondents and the HCRC, with the strong support of the
Commissioners, want prompt and fair resolutions to discrimination complaints.
To help accomplish this goal, the HCRC developed its voluntary mediation
program, a process in which neutral third persons (often a team of two co-
mediators with at least one attorney-mediator) help the parties discuss, clarify
and settle complaints.

The HCRC voluntary mediation program uses trained community mediators who
are unbiased and do not rule on the merits of the complaint. The HCRC provides
the mediators with the basic facts of each case needed to understand the
dispute. The mediators then assist the parties to reach voluntary agreements.
These agreements may include apologies, policy changes, monetary
settlements, or other appropriate solutions. Mediation can save time, money and
resources. It also can eliminate the stress of litigation and allow the parties to
explain their side of the case and to control the process of resolving the disputes
in a non-adversarial manner.

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The HCRC works with trained, senior mediators from the Mediation Centers of
Hawai'i (MCH), a statewide network of community non-profit mediation centers.
MCH utilizes a facilitative approach to mediation. MCH mediators receive
training on civil rights laws and settling disputes by HCRC and MCH staff on a
regular basis. The HCRC Program Specialist - Mediation Coordinator facilitates
the process by explaining, encouraging, referring, and reviewing mediation and
its benefits to the parties. There are mediation centers on Oahu (Mediation
Center of the Pacific), Maui (Mediation Services of Maui), east Hawai'i (Ku'ikahi
Mediation Center in Hilo), the West Hawai'i Mediation Center in Kailua-Kona, and
Kauai (Kauai Economic Opportunity, Inc. Mediation Program). The centers
charge fees on a sliding scale for the sessions, which can be waived or reduced
if there is financial hardship.

Private mediation is also available if the parties choose. Private mediations

generally utilize an evaluative approach, in which the law and possible damages
are emphasized. Private mediation is an important part of the HCRC mediation
program. Parties are free to select commercial private mediators who charge
market rates or private mediators from the Access ADR program, a reduced fee
program of the MCP.

Mediation can occur at any stage of the intake, investigation, conciliation, or

hearing process. Mediation is first offered when the complaint is accepted. At
this early stage disputes are often easier to resolve because the facts are fresh,
damages may not have accumulated, and the positions of the parties may still be
fluid. However, parties may voluntarily choose mediation at any time during the
HCRC investigative, conciliation or hearing process.

Since the inception of the HCRC's mediation program, all types of complaints
have been eligible for voluntary mediation except for housing complaints. After
much research and planning, at the end of FY 2017 the HCRC launched a pilot
program to offer the mediation of housing complaints for the first time. This pilot
program has flourished during FY 2018 under the leadership of the HCRC's
Program Specialist - Mediation Coordinator, who personally conducted in-house
mediation of a significant number of housing complaints.

The HCRC's in-house mediator mediated her first housing complaint in March
2017, and from that date through the end of FY 2018, she mediated a total of 20
housing complaints. Of those 20 housing complaints, 13 were successfully
resolved through mediation, and 10 of those were ciosed within 100 days of
filing. Thus far, the results of the pilot program have been very positive. The
HCRC will continue to evaluate the program in the coming fiscal year and make
appropriate adjustments to further its development.

In viewing all the mediation-related events throughout FY 2018, 40 cases were

referred into mediation, and 46 mediations were completed (dispositions). Of the
46 dispositions, 28 resulted in mediated settlements (60.9%), and 18 cases
resulted in no agreement (39.1%). Of the mediated settlements, 21 were in
employment cases, and 18 of those were dual-filed with the EEOC. The 7 other
6
mediated settlement were in housing cases, all of which were dual-filed with
HUD.

The total disclosed monetary value of mediated agreements was $173,321 with a
wide variety of affirmative relief as well. During this period the HCRC in-house
mediator had 8 mediation settlements; Mediation Center of the Pacific had 14
settlements; and Ku'ikahi Mediation Services (Hilo) had 2 settlements. There
were also 4 settlements with private mediators.

The primary bases of discrimination of the 28 settlements were as follows:

Disability - 8; Arrest and Court Record - 4; National Origin - 4; Retaliation - 4; Sex
- 3 (including 2 based on pregnancy); Age - 2; Ancestry - 1; Familial Status - 1;
and Sexual Orientation - 1. Many of the completed mediations also included
charges on other protected bases.

Although monetary settlements were achieved in most agreements, almost all

mediated agreements also involved some form of non-monetary affirmative relief.
Examples of non-monetary relief include:

1) frank discussion of disputes, which often lay the groundwork for

eventual settlement or restoration of the prior employment
relationship;
2) reinstatement and/or restoration of employee benefits;
3) formal or informal apologies (by either or both sides);
4) increasing hours for part-time employees;
5) providing neutral or positive references for former employees;
6) removal of inappropriate negative comments in employee records;
7) provision of reasonable accommodations;
8) changing shifts when practicable;
9) policy revisions and postings; and
10) clarification of communications between employer and employee,
leading to more productive working environments.

Public Education & Outreach

In addition to enforcing anti-discrimination laws, the HCRC is committed to

preventing and eliminating discrimination through public education. HCRC
Commissioners and staff maintain or assist in a number of civil rights public
education efforts, working with civil rights, business, labor, professional, and non-
profit organizations, on new and continuing initiatives.

During FY 2018 the HCRC continued to be an active participant in a fair housing

committee comprised of representatives from the housing departments of each
county and the State, HUD Honolulu Field Office, Hawai'i Public Housing
Authority, Hawai'i Housing Finance and Development Corporation, Legal Aid
Society of Hawai'i, Hawai'i Disability Rights Center, and other housing-related
private and public entities. The committee met to learn and discuss the latest fair

7
housing cases, legal issues, and recent developments in fair housing from a
federal, state and local perspective, to corroborate on local fair housing issues
and concerns, and to work together to promote fair housing throughout the
islands.

During FY 2018 the HCRC continued to work with HUD, state and county
housing agencies, community fair housing organizations, non-profit and for-profit
organizations, and businesses to co-sponsor fair housing trainings on the Islands
of Hawai'i, Kauai, Maui, and Oahu. Representative trainees in the housing area
have included members of the Board of Realtors, Property Managers
Association, National Association of Residential Property Managers, Community
Associations Institute (CAI) Hawai'i, Hawai'i Center for Independent Living
(HCIL), landlords, tenants, homeless veterans, emergency shelter and
transitional housing management/staff, case management staff, housing
assistance/referral management/staff, and various property management
companies and community associations. An estimated 500+ people took
advantage of these informative and free trainings.

During FY 2018 the HCRC also conducted outreach and/or participated in the
following:

• U.S. Equal Employment Opportunity Commission (EEOC) Technical

Assistance Program Seminar (TAPS)
• Association of Real Estate License Law Officials (ARELLO) annual
conference
• Hawai'i State Bar Association training for Government Lawyers
• Hawai'i Council of Community Associations fair housing seminar
• Moloka'i Disability Fair
• Various classes, panels, and programs at the William S. Richardson
School of Law, University of Hawai'i
• Pro Bono Fair at the William S. Richardson School of Law, University of
Hawai'i
• Honolulu Pride Parade and Celebration
• Annual Martin Luther King, Jr. Holiday Parade and Festival
• Statewide Fair Housing Month events, inciuding proclamations by the
offices of Governor lge and Mayor Caldwell
• Local radio, television, and online media appearances

The HCRC website is part of a consolidated website that includes all divisions of
the Department of Labor & Industrial Relations. The website continues to attract
broad public interest, particularly to those pages on administrative rules, case
decisions, and the mediation program.

Caseload Statistics

During FY 2018, the HCRC continued its emphasis on maintaining efficiency

without sacrificing effective law enforcement.
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Intake

During FY 2018, the HCRC received 2429 telephone and walk-in inquiries.
HCRC investigators completed 557 intakes, and 541 discrimination complaints
were filed with the HCRC, an average of 45.1 complaints a month.

Of the 541 complaints that were filed with the HCRC, 290 complaints originated
with HCRC investigators (averaging 24.2 per month), and another 251 cases
originated with the federal EEOC or HUD. These 251 cases were dual-fi led
under state law with the HCRC.

The 541 cases included 471 employment cases, 21 public accommodations

cases, 47 real property transactions (housing) cases, and 2 access to state and
state-funded services complaints. The other inquiries and intake interviews did
not lead to filed charges due primarily to: a) lack of jurisdiction; b) failure to
correlate the alleged act(s) with the protected bases; or c) the complainant's
decision not to pursue the complaint.

Complaints Filed FY 2018

Public
State & State-
Accommodations
funded Services
Real Property
0.4%
Transactions
8.7%

Employment
87.1%

The 541 complaints accepted by the HCRC consisted of 363 Honolulu County
complaints, 76 Hawai'i County complaints, 60 Maui County complaints, and 42
Kauai County complaints. The number of complaints filed from each county was
consistent with its proportion of resident population in the state (Honolulu County
69.3%; Hawai'i County 14.0%; Maui County 11.7%; and Kauai County 5.1 %).
9
 Complaints Filed by County FY 2018
70%

60°/o

50%

40%

30%

20%

10%

Population

0% ~ === ~ L_--==----1-'.__---.:'.~~-/--~~!__J Complaints

Hawaii (76) Maui (60) Kauai (42)

Honolulu (363) Hawaii (76) Maui (60) Kaua i (42)

• Complaints 67.1% 14.0% 11.1% 7.8%
• Population 69.3% 14.0% 11.7% 5.1%

Closures

HCRC investigators and attorneys closed 258 cases during FY 2018 (a decrease
of 222 cases from FY 2017) for an average closure rate of 21.5 cases per month,
down from 40 cases per month in FY 2017. HCRC investigations resulted in
cause determinations in 29 cases, up from 13 cause determinations in FY 2017.
As of June 30, 2018, there were 273 cases pending with HCRC investigators ; on
June 30, 2017, there were 205 pending cases.

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 Caseload Inventory

The average period for case closure by investigators was 329 days, as
compared to 405 days for FY 2017, 473 days for FY 2016, and 498 days for
FY 2015 . A review of this fiscal year shows the following reasons for
investigative closures:

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Merit Closures No. of % of Subtotal % of Total
Cases Closures

Resolved by Parties 38 16.74% 14.73%

Pre-Determination Settlements 21 9.25% 8.14%
Cases Resolved by Attorneys 29 12.78% 11.24%

No Cause Determinations ~ 61.23% 53.88%

Subtotal 227 100.0% 87.98%

Non-merit Closures No. of % of Subtotal % of Total

Cases Closures

Complainant Elected Court Action 13 41.94% 5.04%

No Jurisdiction 4 12.90% 1.55%
Complaint Withdrawn 4 12.90% 1.55%
Complainant Not Available 2 6.45% 0.78%
No Significant Relief Available 2 6.45% 0.78%
Complainant Failed to Cooperate ___§ 19.35% 2.33%

Subtotal 31 100.00% 12.02%

Total Number of Closures 258 100.00%

Employment Cases
H.R.S. Chapter 378, Part I prohibits discriminatory employment practices based
on race, sex (including gender identity or expression), sexual orientation, age,
religion, color, ancestry, disability, marital status, arrest and court record,
domestic or sexual violence victim status, credit history or credit report,
assignment of income for child support obligations, National Guard participation,
and breast feeding/expressing milk. Examples of such practices are outlined in
H.R.S. §378-2. A complaint can contain more than one basis for the alleged
discriminatory conduct, but for statistical purposes each complaint is identified by
only one designated "primary basis".
The HCRC has a work-share agreement with the EEOC. Under the work-share
agreement, a case is filed with both agencies where there is concurrent
jurisdiction. However, only the intake agency conducts the investigation, thereby
eliminating duplicate enforcement activity. During the fiscal year a total of 471
employment cases were accepted by the HCRC. The HCRC was the intake

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agency for 220 of these cases, and the HCRC dual-filed another 251 cases
originating with EEOC. Of the HCRC-originated cases, 81.8% were also filed
with EEOC.
Of the 471 employment complaints filed, the primary bases most cited were
disability, in 111 cases (23.6%); age, in 91 cases (19.3%); retaliation, in 73 cases
(15.5%); and sex, in 63 cases (13.4%). Of the sex discrimination complaints, 15
(23.8% of all sex cases) alleged sexual harassment as the primary basis and 18
(28.6% of all sex cases) were primarily based on pregnancy.
The next most cited primary bases were race, in 50 cases (10.6%);
ancestry/national origin, in 40 cases (8.5%); arrest and court record, in 17 cases
(3.6%); color, in 14 cases (3.0%); sexual orientation, in 6 cases (1.3%); religion,
in 5 cases (1.1 %); and domestic or sexual violence victim status, in 1 case
(0.2%). There were no cases primarily based on breastfeeding, child support
obligations, credit history or credit report, marital status, or National Guard
participation.
The case closure period averaged 325 days for the 205 employment cases that
were closed or caused by HCRC investigators during FY 2018.

Employment Complaints Filed FY 2018

Arrest & Sexual Domestic &
. Color
Sexual Violence
0 _ ~ 3 .0% Sex

Age
19.3%

Disability
23 .6%

Real Property Transactions (Housing) Cases

During FY 2018, the HCRC accepted 47 cases of housing discrimination. The
primary basis most cited was disability, in 21 cases (44.7%); followed by
retaliation, in 11 cases (23.4%); race, in 5 cases (10.6%); familial status, in 4
cases (8.5%); sex, in 3 cases (6.4%); and age, ancestry/national origin, and
sexual orientation, in 1 case each (2.1 %). There were no cases primarily based
on color, HIV infection, marital status, or religion.
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Housing case closures averaged 198 days for the 29 cases closed or caused
during FY 2018 .

Housing Complaints Filed FY 2018

Sexual
Orienta'tion
_ / Ancestry/National
Sex Age 2 1
· % Origin
Race 2.1%
Disability
10.6%

Retaliation
23.4%
Fam ilial Status
8.5%

Public Accommodations Cases

H.R.S. Chapter 489 prohibits unfair discriminatory practices that deny, or attempt
to deny a person the full and equal enjoyment of the goods , services, facilities ,
privileges, advantages or accommodations of a place of public accommodation
on the basis of race, sex, sexual orientation, color, religion, ancestry, or disability.
Public accommodations include retail stores, restaurants , theaters, sports
arenas, public transportation, healthcare providers, hotels, and banks.
During the fiscal year, 21 new cases of public accommodations discrimination were
accepted. Of these , the primary basis most cited was disability, in 10 cases
(47.6%); followed by race and sex, in 3 cases each (14.3%); ancestry and color, in
2 cases each (9.5%); and retaliation, in 1 case (4.8%). There were no cases
primarily based on religion or sexual orientation.
Public accommodations case closures averaged 550 days for the 19 cases
closed or caused during FY 2018.

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 Public Accommodations Complaints Filed
FY 2018
Color
9.5%
Ancestry

Race
14.3%

Access to State and State-Funded Services Cases

H.R.S § 368-1.5 prohibits state agencies, or any program or activity receiving

state financial assistance from excluding from participation, denying benefits or
otherwise discriminating against persons with disabilities (the only protected
class under this statute).

During FY 2018, there were 2 cases filed under§ 368- 1.5. There were 5 cases
filed under§ 368-1 .5 that closed during the fiscal year, averaging 387 days per
closure.

Cause Cases
When an investigation results in a recommendation that there is reasonable
cause to believe that discrimination has occurred , the case is assigned to an
HCRC enforcement attorney for legal action. In FY 2018, 29 recommendations
for cause were brought forward for legal action. Of these cases, 22 (75.9%)
were employment cases, 4 (13.8%) were housing cases, and 3 (10.3%) were
public accommodations cases.
Of the 29 investigations with a cause recommendation , the primary basis most
cited was arrest and court record, in 18 cases (62.1 %); followed by disability, in 8
cases (27.6%); and ancestry/national origin, familial status, and race, in 1 case
each (3.4%).

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 Cause Determinations FY 2018

Ancestry/National Race
Familial Status
Origin
3.4%

Arrest & Court

Record
62.1%

Case Settlements

The HCRC promotes and encourages settlement during all stages of the
complaint process. Through pre-determination settlements, mediation, and
conciliation, the HCRC obtains relief and resolves complaints while avoiding
unnecessary litigation. These settlements provide closure for the parties and
conserve HCRC investigation and litigation resources for complex or precedent
setting cases.

During FY 2018 the HCRC continued to successfully obtain monetary relief

through settlement of complaints. In the 29 cause cases that were settled,
HCRC attorneys obtained monetary settlements totaling $391,485. Of the 59
cases settled prior to an investigative finding, 13 of those cases involved
confidential settlements, the terms of which were not disclosed to the HCRC. Of
the remaining 46 cases settled prior to an investigative finding, monetary relief
totaled $464,211. This figure includes pre-determination settlements obtained
through HCRC investigators and settlements between the parties ($239,590), as
well as investigative settlements obtained through the HCRC mediation program
($224,621). Collectively the HCRC's known monetary settlements for FY 2018
totaled $855,696. Since the settlement terms are unknown for 13 closed cases,
the actual total figure for all monetary settlements in FY 2018 is probably
significantly higher than $855,696.

16
In addition to monetary relief, significant affirmative relief was obtained. The
HCRC seeks affirmative relief for four basic reasons: to enforce civil rights laws,
stop discriminatory conduct, prevent future harm to complainants, and assist
respondents in avoiding future violations. HCRC settlements and conciliation
agreements routinely contain various types of affirmative relief including the
development and implementation of non-discrimination policies, employee and
supervisor training on non-discrimination policies, posting non-discrimination
policies, and publishing notices informing the public of the HCRC's role in
enforcing state non-discrimination laws.

In some instances, non-monetary relief can be an important element of a

settlement. For example, some complainants have received a letter of apology
pursuant to the terms of a settlement. A simple apology sometimes goes a long
way towards healing the rift between a complainant and respondent, and this
form of relief is often not available as a court ordered remedy. Some cases were
resolved when an employer, housing provider, or public accommodation
corrected an unlawful discriminatory policy or practice after notice of the violation.
During FY 2018, a significant number of employers, housing providers, and
public accommodations voluntarily agreed to correct unlawful employment
applications, leave policies, or house rules.

The following are illustrative of the HCRC cases that were resolved through
conciliation or mediation and describe the relief obtained during FY 2018:

• The complainant in a public accommodations case alleged that she was

denied accommodations and services on the basis of her disability. Specifically,
she alleged that the respondent hotel refused to honor her reservation for a one-
night stay and forced her to leave because she had a service animal that was
necessary due to her disability. The case was resolved prior to an investigative
finding through a pre-determination settlement. The terms included payment of
$2,250 to the complainant and the respondent's adoption and dissemination of a
non-discrimination policy.

• The complainant in an employment case had worked for a local branch of the
respondent, a major international retailer. He alleged that he had been subjected
to harassment, unequal terms and conditions of employment, and termination on
the basis of his sex, ancestry/national origin, and disability. The case was
resolved prior to an investigative finding through a pre-determination settlement.
The terms included payment of $48,000 to the complainant and mandatory non-
discrimination training for all management personnel at all of the respondent's
retail locations on Oahu.

• The complainant in an employment case had worked for the respondent, a

large restaurant, and alleged that its General Manager had subjected her to
various forms of sexual harassment. The HCRC investigated the case and
issued a Notice of Cause. Thereafter, the case was settled for a payment of
$120,000 to the complainant, the respondent's review, adoption, and posting of a

17
non-discrimination policy, and mandatory non-discrimination training for all
employees.

• The complainant in an employment case alleged that the respondent

employer failed to provide her a requested reasonable accommodation for a
pregnancy-related impairment and consequently forced her to quit. The HCRC
investigated the case and issued a Notice of Cause. Thereafter, the case was
settled for a payment of $20,000 to the complainant, a review of the respondent's
policies, the respondent's posting of a non-discrimination flyer on an employee
bulletin board, and mandatory non-discrimination training for the respondent's
managers.

• The complainant in a housing case rented a room in a house owned by the

respondent couple and alleged that they subjected her to discriminatory practices
based on her sex. The HCRC investigated the case and issued a Notice of
Cause, finding that the respondent husband had threatened and intimidated the
complainant by subjecting her to physical sexual conduct and pervasive emails of
a sexual nature; that the respondents had created a hostile housing environment
that forced the complainant to move off the property; that the respondents had
retaliated against and threatened the complainant; and that the respondents had
published a discriminatory advertisement. Thereafter, the case was settled for
payment of $20,000 to the complainant, the respondents' adoption of a non-
discrimination policy, non-discrimination training for the respondents, and
monitoring of the respondents' rental activity for a year.

• In a housing case the complainant-a mother with a young child-alleged

that the respondent housing provider refused to rent to her on the basis of her
familial status. Prior to an investigative finding the case was successfully
mediated through the HCRC's housing mediation pilot program. The terms of the
mediated settlement included a payment of $3,800 to the complainant, a letter of
apology, training for the respondents, and the respondents' creation of a non-
discrimination policy.

• The complainant in an employment case alleged that he was subjected to

unequal terms and conditions, suspended, and terminated, all on the basis of his
arrest and court record. The case was resolved prior to an investigative finding
through a pre-determination settlement. The terms included payment of $12,500
to the complainant and the respondent's posting of a non-discrimination policy on
the employee bulletin boards at its place of business.

HCRC Warning Letters

In an effort to prevent future or recurring problems, the HCRC provides

respondents with "warning letters" advising them of potentially unlawful
practices that the HCRC discovers during the course of its investigation of
claims against the respondent. In those instances when the HCRC
investigation does not result in a recommendation of reasonable cause on the
18
claims filed, and the HCRC investigator finds evidence of other unlawful
practices (such as a discriminatory written policy, employment application, or
conduct in the workplace that could rise to the level of unlawful harassment if
repeated), the HCRC will advise the respondent of the potential violations and
provide the respondent information about how it can correct the possible
violation of the law. Warning letters have resulted in policy and application
form changes, as well as discrimination prevention training for employees and
managers.

Case Decisions

Contested Cases

During FY 2017-2018 five cases were docketed for contested case hearings.
Three cases were settled in FY 2018, and one was settled the following fiscal
year, after July 1, 2018. Two cases alleged discrimination in housing, and three
involved employment discrimination including sexual harassment and pregnancy
discrimination.

On June 27, 2018 a contested case hearing was held in Hoshijo on behalf of the
complaint filed by Kiana E. Boyd vs. Jeffrey David Primack, Docket No. 18-001-
H-S. Complainant alleged she was evicted from her housing based on her
gender identity, and that Respondent made discriminatory statements. The
Hearings Examiner issued Proposed Findings of Fact, Conclusions of Law and a
Recommended Order, in FY 2019, and the Commission has not yet issued a final
order.

Appeals

In 2017, the Hawai'i Supreme Court ruled on a declaratory relief petition

regarding the Hawai'i Civil Rights Commission's jurisdiction over state agencies,
and state funded services, pursuant to HRS§ 368-1.5.

HRS § 368-1.5 prohibits exclusion of any person by state agencies or any

program or activity receiving state financial assistance based on disability. When
enacted, it was meant to be a state corollary to Section 504 of the Rehabilitation
Act (P .L. 93-112).

In Hawaii Technology Academy and the Department of Education vs. L.E. and
Hawaii Civil Rights Commission, 141 Hawaii 147, 407 P. 3d 103 (2017), the
Court held that the legislature intended HRS § 368-1.5 to provide the HCRC with
jurisdiction over disability discrimination claims only when Section 504 of the
federal Rehabilitation Act of 1973 does not apply, thus limiting HCRC jurisdiction
to state agencies and programs or activities which do not receive federal funds.

In Cervelli v. Aloha Bed & Breakfast, 142 Hawai'i 177, 415 P.3d 919 (2018), the
Hawai'i Intermediate Court of Appeals rejected a religious justification by the
owner of a bed and breakfast who refused to rent a room to a lesbian couple.
19
In an interlocutory appeal, the Intermediate Court of Appeals affirmed a lower
court ruling against a Hawai'i bed and breakfast that denied a room to a lesbian
couple because of their sexual orientation. The opinion made clear that a
business run out of one's own home is still a business, and therefore a public
accommodation.

The lawyers for Aloha Bed & Breakfast argued throughout the case that the
religious views of the business owner permitted the business to refuse to rent a
room to a same-sex couple. They also argued that a bed and breakfast is not a
public accommodation but should be considered housing. The intermediate
Court of Appeals rejected this reasoning, holding that a public accommodation
may not rely on a religious belief to reject service to a protected class. (In July,
2018 the Hawai'i Supreme Court denied certiorari, and a petition for certiorari is
pending before the United States Supreme Court).

Morning Hill Foods, LLC, dba MANA BU'S v. The Hawaii Civil Rights
Commission, CAAP-18-0000573 is on appeal to the Intermediate Court of
Appeals from a Circuit Court decision which affirmed in part and modified in part
the Commission's final decision. On December 12, 2017, the Commission
issued a final decision in the underlying contested case and held that
Respondent was liable for age discrimination in violation of Hawai'i Revised
Statutes § 378-2. The Commission found that Respondent's advertisements, a
Craigslist advertisement and an in-store posting, requesting college student
applicants were in violation of H.A.R. §§ 12-46-131 and 12-46-133, which prohibit
age discrimination in employment, and in advertising for a preference for
individuals of a particular age. The rule allows an exception for a bona fide
occupational qualification, which allows discriminatory conduct in specific
situations, such as advertising for a specific characteristic for a part in a play.
The Commission found that there was no bona fide occupational qualification for
young people in the current case. This was affirmed by the Circuit Court, which
held that the applicable rule, H.A.R. 12-46-133, is constitutional. The Court
upheld the Commission award of lost wages for $1,080 and lowered the
Commission's award for emotional distress from $2,500 to $1,000. Morning Hill
Food, LLC appealed to the Intermediate Court of Appeals.

Legislation

Three bills and two resolutions relating to civil rights were passed during the
2018 Legislative Session and enacted into law.

Act 108, SB 2351, Relating to Equal Pay, adds a new section to HRS Chapter
378 and amends the existing equal pay provisions of HRS § 378-2.3. The new
statutory section prohibits prospective employers from requesting or considering
a job applicant's wage or salary history as part of an employment application
process or compensation offer, except that an employer may consider salary
history if an applicant discloses salary history voluntarily and without
prompting. The amendment to the current statute prohibits enforced wage
20
secrecy and retaliation or discrimination against employees who disclose,
discuss, or inquire about their own or coworkers' wages.

Act 110, HB 1489, Relating to Civil Rights, establishes a state corollary to Title IX
of the Education Amendments of 1972, renamed the Patsy T. Mink Equal
Opportunity in Education Act in 2002. It does so by adding a new chapter to Title
20 of the Hawai'i Revised Statutes, prohibiting discrimination based on sex,
including gender identity or expression, or sexual orientation in any state
educational program and activity or educational program or activity that receives
state financial assistance. Since its enactment, Title IX increased academic and
athletic opportunities for females in schools, and required schools to take prompt
and effective action in response to reports of sexual harassment of students. Act
11 O requires the legislative reference bureau to conduct a study regarding how
other jurisdictions oversee Title IX enforcement.

Act 217, SB 2461 Relating to Service Animals, amends several sections of the
Hawai'i Revised Statutes, establishes a civil penalty for "fraudulently representing
a dog as a service animal", and conforms Hawai'i law with the definition of
"service animal" under the Americans with Disabilities Act of 1990. Act 217 also
amends Chapter 489 to specify that discrimination in public accommodations
based on disability includes a prohibition against discrimination based on use of
a service dog. However, the use of an assistance animal as reasonable
accommodation in housing is not governed by the Americans with Disabilities Act
(ADA), nor is it affected by this new law.

SR 92 urges the United States Congress to pass legislation to correct and clarify
the status of migrants under the Compact of Free Association (COFA) for the
purposes of the Real ID Act of 2005. Enactment of such clarifying legislation
would relieve the burden on Hawai'i residents who are citizens COFA nations,
who have an unlimited duration of stay in the United States, from the requirement
that they be issued only a one-year driver's license that has to be renewed
annually. This would help COFA Hawai'i residents avoid unnecessary cost and
inconvenience and reduce the burden on state and county resources.

HCR 109 Urging the President of the United States and the United States
Congress to Grant Full Veterans Benefits to Filipino Veterans Who Fought in
WW II But Were Subsequently Denied the Benefits to Which They Were Entitled.
This resolution asks the United States to pay a debt of gratitude and justice to
remedy a history of injustice, broken promises, and discriminatory treatment
suffered by a now dwindling generation of heroic Filipino Veterans who served
under US command, who were promised citizenship and veteran's benefits, and
to this day continue to suffer the consequences of broken promises and belated
remedies.

21
Appendix

Overview
The Hawai'i Civil Rights Commission (HCRC) was established under Act 219, L.
1988, and Acts 386 and 387, L. 1989.
The HCRC's enabling statute, H.R.S. Chapter 368, declares that discrimination
because of race, color, religion, age, sex (including gender identity and
expression), sexual orientation, national origin, ancestry, or disability in
employment, housing, public accommodations, or access to services receiving
state financial assistance is against public policy. Certain bases are not
protected under all HCRC laws.
The HCRC exercises jurisdiction over Hawai'i's laws prohibiting discrimination in
employment (H.R.S. Chapter 378, Part I), housing (H.R.S. Chapter 515), public
accommodations (H.R.S. Chapter 489), and access to state and state-funded
services (H.R.S. § 368-1.5). Under its statutory mandate, the HCRC receives,
investigates, conciliates, litigates, and adjudicates complaints of discrimination,
providing a uniform procedure for the enforcement of the state's discrimination
laws.
The HCRC has five (5) uncompensated volunteer Commissioners (one position
is currently vacant) who are appointed by the Governor, with the consent of the
Senate, based on their knowledge and experience in civil rights matters and their
commitment to preserve the civil rights of all individuals.
The HCRC is attached to the Department of Labor & Industrial Relations (DLIR)
for administrative purposes. During FY 2018 the HCRC had 27 positions (23
permanent and 4 temporary), divided into separate enforcement and adjudication
sections.

22
 Administrative Procedure

Before the HCRC accepts a complaint of discrimination, a complaining person

must allege that:
1) She or he has been subjected to unlawful discrimination 4 because of a
protected basis, 5 and,
2) The unlawful discrimination occurred within the previous 180 days. 6

4 "Unlawful discrimination" may occur in any of the following ways:

a. Disparate Treatment - this is the usual form of discrimination; it occurs when individuals
are treated in an unequal manner because of a "protected basis." Examples of
disparate (unequal) treatment include: firing an employee because of her race, her age,
or because she is pregnant; refusing to serve a person because of his race or his
disability; refusing to rent to a person because of her race; or refusing to rent to a family
because it has young children.
b. Reasonable Accommodation - this is the second most common way that discrimination
appears; it occurs when an individual is denied a "reasonable accommodation" designed
to allow an individual to have equal access or equal benefits. Examples of failure to
accommodate include: refusing to allow a seeing impaired customer into a taxicab
because he is accompanied by a seeing-eye dog; refusing to allow a pregnant cashier
to sit on a stool so that she can work while pregnant; or refusing to make exceptions to a
condominium association's "no pets" house rule to allow a disabled resident to keep a
service animal.
c. Disparate Impact -- the least common way that discrimination appears; however, when
discrimination occurs in this form, it may impact the greatest number of people.
Disparate impact occurs when a policy, practice, or test that has a "disparate impact" on
persons with a particular "protected basis." Examples of disparate impact include: a
pre-employment test that includes a number of questions that are not job related but
have the effect of disqualifying a large number women, or men, or any other protected
basis.

5"Protected basis" is the criteria upon which it is unlawful for a respondent to discriminate.
Protected bases vary depending on the statute involved:
a. State Funded Services (HRS Chapter 368) The only protected basis is disability.
b. Employment (HRS Chapter 378, Part I) The protected bases on which an employer,
employment agency, or labor organization may not discriminate are: race, sex (which
includes gender identity and expression), sexual orientation, age, religion, color,
ancestry, disability, marital status, arrest and court record, domestic or sexual violence
victim status, credit history or lactating employees.
c. Public Accommodations (HRS Chapter 489) The protected bases on which a public
accommodation may not discriminate are: race, sex (which includes gender identity and
expression), sexual orientation, color, religion, ancestry, or disability.
d. Housing (HRS Chapter 515) The protected bases on which an owner, a real estate
broker or any person engaging in a real estate transaction, may not discriminate are race,
sex (which includes gender identity and expression), sexual orientation, color, religion,
marital status, familial status, ancestry, disability, age or HIV (human immunodeficiency
virus) infection.

6 Complaints filed with the HCRC usually involve a discrete act, such as termination, eviction,
demotion, or involve acts that are ongoing and constitute a continuing violation. An example of a
"continuing violation" is sexual harassment that began more than 180 days before the complaint
is filed, but continued or ended less than 179 days before the complaint is filed. When

23
Where appropriate, after a complaint is filed with the HCRC, the parties are offered
an opportunity to voluntarily mediate the complaint through the HCRC Mediation
Program. If the parties agree to mediate, the HCRC mediation coordinator refers
the parties to a community mediation center, which schedules and holds mediation
sessions. Parties may alternatively choose to hire a private mediator.
In cases not referred to mediation, or those in which mediation is unsuccessful, an
HCRC investigator conducts an objective, fact-finding investigation. HCRC
investigators are impartial and gather evidence to allow the Executive Director to
make a determination in each case. The HCRC investigator collects, reviews,
analyzes documents, and contacts and interviews witnesses. Some witnesses may
be identified by the complainant or by the respondent, and some are independent
witnesses, including experts, who are identified by the investigator, by other
witnesses, or are discovered during the course of the investigation. In many
cases, the investigator also attempts to settle the complaint prior to an investigative
determination (pre-determination settlement).
After an HCRC investigation is completed, H.R.S. 368-13(b)-(c) requires the
Executive Director to determine whether reasonable cause exists to believe that
discrimination has occurred. Where no reasonable cause is found, the Executive
Director dismisses the complaint and issues a right to sue letter to the
complainant. Where a determination of reasonable cause is recommended, the
complaint is assigned to an HCRC enforcement attorney for legal review and
final recommendation to the Executive Director.
Upon the issuance of a finding of reasonable cause to believe that unlawful
discrimination has occurred, the HCRC enforcement attorney attempts to conciliate
or settle the complaint.7 If conciliation is unsuccessful, the complaint is docketed for
a contested case hearing. An HCRC enforcement attorney presents the case in
support of the complaint before an impartial hearings examiner. The respondent
(represented by themselves or by counsel or representative of their choice) is also
given the opportunity to present his/her case at the hearing. Generally, a
complainant may intervene in the contested case process as a party and also be
represented by counsel or other representative of their choice.
After the completion of the contested case hearing, the hearings examiner issues a
proposed decision based on the evidence. The five-member Commission Board
then reviews the proposed decision and the hearing record. The parties may file

discrimination involves a discrete act, such as termination, the HCRC can only accept a
complaint within 180 days of that complained action.

7 During FY 2018, of all 258 investigative and attorney case closures, 5.0% (13) were closed
on the basis of the complainant electing court action. The remaining cases (245) were
closed on the following bases: in 53.9% of the cases (139), the Executive Director found no
cause and dismissed the complaint, 22.9% (59) of the investigation cases were settled prior
to a cause determination or were resolved by the parties, 11.2% (29) of the cases were
resolved by staff attorneys, and the remaining 7.0% of the cases (18) were closed because
there was no jurisdiction, the complaint was withdrawn, the complainant was unavailable and
could not be located, the complainant failed to cooperate, no significant relief was available,
due to bankruptcy of the respondent, or due to administrative closure.

24
written exceptions and support statements and present oral arguments to the Board.
The Commission Board then accepts, rejects, or modifies the proposed decision,
issues a final decision and order, and awards remedies, if appropriate. This
decision is legally binding. If any party disagrees with the decision, she/he has 30
days to file an appeal to the State Circuit Court. Furthermore, a Respondent who
appeals a decision of the Commission Board is entitled to a jury trial on any claims
that form the basis for an award of common law damages. 8
The HCRC enforcement and administrative hearing process is more cost
effective than litigation in court. lt provides for the investigation of complaints and
access to justice for those who lack the resources to pursue their claims in court.
This is particularly important in employment discrimination cases, where
employees have often lost their source of income through termination and have
little or no control over the evidence needed to prove discrimination.
The HCRC enforcement and adjudication process also funnels cases away from
the courts, saving judicial resources and associated costs. Complainants who
file suit in court must first exhaust administrative remedies by filing a complaint
with the HCRC. The primary reason for this requirement is to prevent the courts
from being overburdened with non-jurisdictional or non-meritorious complaints, or
with complaints that can be closed or settled in the HCRC's administrative
process. ln fact, the great majority of complaints filed with the HCRC are
resolved or disposed of without resort to the courts. 9
Although only a small number of cases are brought to administrative hearing and
result in final Commission decisions, these cases are important because they
create a body of legal precedent. Case law precedents, in Hawai 'i and across
the United States, provide the basis for anti-discrimination principles, such as the
doctrine of sexual harassment. Case law also establishes standards that define
the rights and protections under civil rights laws, and give guidance to employers,
landlords, and businesses on how to prevent and eliminate discrimination.

8 The HCRC enforcement, hearing and appeal procedures are illustrated in Flowchart# 1. In
SCI Management Corporation, et. al. v. Darryllynne Sims, et. al., 101 Hawai'i 438, 71 P.3d 389
(2003), the Hawai'i Supreme Court held that "a respondent who appeals a final order of the
HCRC, pursuant to HRS § 368-16, is entitled to a jury trial on any claims that form the basis for
an award of common law damages by the HCRC." This does not apply to respondents in
housing cases, who can elect to take the case to circuit court after a finding of reasonable cause
under HRS §515-9.

9 HCRC contested case procedures are illustrated in Flowchart# 2.

25
 HCRC Procedural
Flowchart #1

Initial Inquiry

If no jurisdiction, Intake Interview

complaint not taken

Complaint Filed
Voluntmy If settled, case
Mediation closed
Predetermination Investigation
Settlement

.
If settled, Reasonable Cause Jfno cause determination
case closed. Determination ~ Notice ofRight to Sue issued

If settled, case
1
Conciliation
•
Circuit Request for
closed Attempted Court Reconsideration
t
Final Conciliation
If settled, case
closed
-
~

Demand
t
Case Docketed
t
Chapter 91 Hearing
t
Hearing Examiner's
Proposed Decision Refer to Flowchait
t #2 for details.

Commission's Final Order

Appeal to Circuit Court/

Jury Trial De Novo

Hawai'i Appellate
Courts
26
 HCRC Contested
Case Flowchart #2

Appointment of Hearings Examiner &

Docketing of Complaint

Scheduling Settlement
Mediation ........... ..........................
Conference Conference

I
+
Settlement
Agreement-
Case Closed
+
No Settlement
Agreement . No Settlement
Agreement
•
Settlement
Agreement-
Case Closed
Last day for
Complainant to
Request Right to
Sue

...
J
~I
Discovery/Motions
Deadline i. . . . . . .
Pre-Hearing Conference ..................... Settlement
Conference

+ t
" No Settlement
Administrative Hearing Settlement Agreement-
Agreement Case Closed

•
.........................................!

Hearing Examiner's Proposed

Decision .......................... Exceptions to
Proposed Decision

+
Statement in Support of
Proposed Decision
•
Commission's Final Order +
Oral Argument to
............................... Commission

+ I
l
Reconsideration
I t
Case Closed Appeal to Circuit Court/ Jury Trial
I I 27
I De Novo
HCRC Commissioners

Linda Hamilton Krieger

Chair (term 2011-2019)

Linda Hamilton Krieger grew up in Hawai'i and returned home in 2007 to join the faculty
at the William S. Richardson School of Law as a Professor of Law. Professor Krieger
received a BA degree from Stanford University and is a graduate of New York
University Law School. Prior to teaching, Professor Krieger worked for 13 years as a
civil rights lawyer. From 1980-1986 she was a Staff Attorney and Director of Clinical
Programs at the Employment Law Center of the Legal Aid Society of San Francisco,
and from 1985-1991 she was a Senior Staff Attorney for the EEOC, San Francisco
Regional Office. During that period, she litigated a number of significant state and
federal sex and race discrimination cases in the areas of pregnancy discrimination and
sexual harassment. She also played a significant role in drafting state and federal
legislation in these subject matter areas. Professor Krieger served as an Acting
Associate Professor of law at the Stanford Law School from 1992 to 1995, and as a
professor of law at the University of California at Berkeley (Boal! Hall) from 1996 to
2009. She has also published numerous articles on Title VII of the Civil Rights Act of
1964, disability discrimination, affirmative action, international comparative equality law
and policy, and theories of law and social change.

Liann Ebesugawa (term: 2017-2020)

Ms. Ebesugawa is Assistant General Counsel for Hawaiian Electric Industries, Inc.
Previously she served as an Associate General Counsel for Hawaiian Electric
Company, Inc. where she provided legal support to personnel and management and
advice in obtaining regulatory approvals for various projects. She also served as
Executive Director of the Hawai'i State Board of Education, where she provided legal
and administrative services for matters before or involving the Board of Education.

Ms. Ebesugawa is currently the Second Vice President of the Honolulu Chapter of the
Japanese American Citizens League's Board of Directors. During her tenure as the
JACL's past Board President, she addressed issues related to marriage equality,
homelessness, Native Hawaiian self-determination, and other civil rights issues that
face the community. She also currently serves on the Board of Directors of the National
Asian Pacific American Bar Association and has coauthored several academic
publications and presentations regarding privacy in the workplace, Japanese American
redress, and racial discrimination.

Joan Lewis (term: 2017-2020)

Joan Lewis is a 29 year Hawai'i public school teaching veteran and a long time
education advocate. Ms. Lewis has been a part of the teaching staffs of Nanakuli High
and Intermediate School and Kapolei High School where her work with Native Hawaiian

28
and Pacific Island students shaped her approach to teaching and learning. Ms. Lewis
is one of the founders of the H6'ola Leadership Academy, a 9-12th grade academy
within the Kapolei High School community that provides a safe learning space for
students that face many obstacles that can undermine their success. Graduation rates
for students in this program have been in the upper 90 percentile.

Ms. Lewis has also served as a school, district and state leader for the Hawai'i State
Teachers' Association. Her work as part of the HSTA has provided culturally sensitive
training and support for teachers in the Leeward District of the DOE, the development
and delivery of courses to support students of diverse economic backgrounds, and the
expansion of the teacher voice in support of Hawai'i's students. Ms. Lewis' other
experiences include service as: a foster parent for Hale Kipa Inc.; an educational staff
member for Palama Settlement's In-Community Treatment Program; a house parent for
Child and Family Services Ila Humphrey home for girls recovering from sexual assault;
and as a trustee for the Hawai'i Employer-Union Health Benefits Trust Fund. These
have been instrumental in developing Ms. Lewis' belief that we must work together to
provide the Aloha that all citizens, but especially the most vulnerable among us, need to
survive and thrive. Ms. Lewis earned her Bachelor's degree at Drake University (S.S. in
Education) and her Master's degree from the University of Hawai'i at Manoa.

Joakim Peter (term: 2017-2019)

Dr. Joakim Jojo Peter is a Senior Specialist at Pacific Resources for Education and
Learning (PREL) focusing in family and school engagement for migrant families of
children with significant disabilities in Hawai'i. He received a Ph.D. from the Special
Education program at the College of Education, University of Hawai'i at Manoa (UHM),
and has also received two Master degrees from UHM in Pacific Islands Studies and
History. Originally from Chuuk in the Federated States of Micronesia, Dr. Peter
attended Xavier High School. After serving as director and faculty member at the
College of Micronesia-FSM Chuuk Campus for 15 years, he returned to UHM to pursue
his doctorate, which focused on immigrant families of children with special needs in
Hawai'i.

In 2011, JoJo and fellow community advocates founded COFA CAN, a community
advocacy network that provides awareness and support for crucial legislative and legal
initiatives that affect the lives of the Freely Associated States citizens living in Hawai'i
and the United States. JoJo has lectured at UHM and Kapi'olani Community College. In
2012 and 2014, JoJo worked with the Department of Ethnic Studies and the Center for
Pacific Islands Studies to organize two symposia - "Micronesian Connections" and
"Oceanic Connections" - that sought to bring together community members, educators,
and students to develop strategies for empowerment and sharing among Oceanic
peoples. He has been a community advocate for COFA Community Advocacy Network
(COFACAN), Micronesian Health Advisory Coalition (MHAC), and We Are Oceania
(WAO). Recently, the Micronesian groups have been conducting outreach to collect
stories of healthcare issues and challenges among the COFA populations in Hawai'i.

29
HCRC Staff

During FY 2018 the HCRC staff consisted of 27 positions:·

• Enforcement Staff:
Executive Director
Deputy Executive Director
Enforcement Attorneys (4)
Program Specialist - Mediation Coordinator
Legal Clerk
Investigator-Supervisors V (2)
Investigator IV (8)
Investigator 111-lV (temporary) (2)
Secretary Ill
Office Assistants (111-IV) (4)

• Adjudication Staff:
Chief Counsel
Secretary II

• Staffing levels reflect permanent (23) and temporary (4) positions which were either filled or vacant
during FY 2018.

30
 HAWAl'I CIVIL RIGHTS COMMISSION
Keeli'ikolani Building
830 Punchbowl Street, Room 411
Honolulu, Hawaii 96813

Website: http ://labor.hawaii.gov/hcrc/

E-Mail: DLIR.HCRC.INFOR@hawaii .gov

Oahu
Telephone: 586-8636
TDD: 586-8692
Facsimile: 586-8655

Neighbor Islands call (toll-free)

Kaua ' i: 274-3141, ext. 6-8636#
Maui: 984-2400, ext. 6-8636#
Hawai'i: 974-4000, ext. 6-8636#
Lana'i & Moloka'i: 1-800-468-4644, ext. 6-8636#