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COMPLAINING TO EMPLOYMENT TRIBUNALS and ET PROCEDURES>

Employment Tribunals rule on employees’ claims from employers ~below are what claims lie to Employment Tribunals, how -what are involved at Employment Tribunals.

What Employment Tribunals cases involve, before, during, after, are similar whether one is claiming unfair dismissal under the Employment Relations Act, or wrongful dismissal -breach of Contract under Employment Tribunals Act…

So also, whether racial or colour prejudice or sex discrimination in Equal Opportunities laws, or under Employment Rights Act constructive dismissal, asserting a right, whistle blowing, or sexual harassment or race victimization.

The information below, relate to individuals, free remedies, rather than Union collective agreements in labour relations, about workers’ in law most often sought by individuals at Employment Tribunals in employment disputes on employment rights.

Industrial relations being about work rights employee complaints in industrial disputes are over workplace rights.

Under employment law employee rights include use of Employment Tribunals in employment disputes to judicially test workers rights in employment relations legislation -whether employment rights were denied.

Most common workplace disputes at Employment Tribunals are employment termination complaints -unfair dismissal under statute law or wrongful dismissal in common law as breach of contract within Employment Tribunals jurisdiction.

Employment Tribunals may only deal with wrongful dismissal complaints after the employment termination has taken place (but it does not matter if one was on one’s probationary period, because the contract of employment comes into existence the moment the employer offers the job and the employee accepts it) ~Employment Tribunals awards are normally pay in lieu or notice in writing expressly agreed or what is ‘reasonable’ (usually a minimum of a week’s pay if one is paid weekly, or a month’s salary if one is monthly paid) -industrial tribunals also award financially measurable damages in other respects normally if expressly agreed in writing and for financially measurable loss which can be shown to Employment Tribunals to have been in the reasonable contemplation of the parties when contracting [as distinct from 'reasonably foreseeable'] but about half of what County Courts may is what may award Employment Tribunals.

Unfair dismissal claims may be begun only at Employment Tribunals ~the maximum award can be higher for unfair dismissal than for wrongful dismissal -but in employment law one may not complain of this unless one has been employed by the employer for at least a year or it is one of the exemptions e.g. arising from protected acts.

Exceptions in unlawful employment termination as unfair dismissal, in employment legislation, normally, are: if the complaint is that it was because of racial discrimination, or disability or religious belief or sex discrimination or sexual harassment, or in any of those respects because one with good reason or bad but in good faith did something and it was victimization; or that it was employer retaliation to a protected act, if one sought rightly or wrongly but in good faith to assert a statutory right of the kind that one could ask Employment Tribunals determine the details of -e.g. pay statement or unlawful deductions, or, if one mistakenly or not but in good faith and in the public interest informed on the employer a person or body proscribed by law for that purpose in respect of some unlawful practice ~in these cases it does not matter if one has been with the employer for a very short time, one is still entitled to employment protection by complaining to Employment Tribunals -but in these proof is the complainants’ (usually Employment Tribunals hold a preliminary hearing to see if the complaint qualifies as an exemption for a full merits hearing -if a full hearing succeeds Employment Tribunals may not award notice pay if that employment was shorter than a month).

Constitution of Employment Tribunals is that Employment Tribunals, normally, each has three members ~a Chairman who is legally qualified and two lay members one acceptable to Unions and the other to Industry -they vary with each case and two might do if one is absent -even if it is its chairperson who has a casting vote (most are full time chairmen ~county or crown court judges may also chair -employed part time).

(Employment Tribunals are courts of record; it is unlawful to subject them or their members or their decisions to criticism, except in legal proceedings to appellate courts local or higher, in any way that is civilly or criminally forbidden under contempt of court laws ~Council on Tribunals may not observe e.g. ‘private’ Employment Tribunals hearings -Employment Tribunals Service as a public body may be alleged e.g. mal-administration against to Ombudsman (UK, or directly EU).)

>> There is a time limit in Employment Tribunals Rules of Procedure for lodging complaints with Employment Tribunals ~regardless of which of the types above normally it must be received by the Employment Tribunals not later than three months (within 90 days) from the date of employment termination or from when the employee came to know of the employment relations matter complained of ~normally the actual day on which e.g. one was dismissed is not counted for lodging a complaint with Employment Tribunals -the first day is the day that follows it and the last ‘day’ ends at midnight .

>> Employment law has two additional requirements:-

Before complaining, especially if unfair dismissal or wrongful dismissal -unlawful termination of employment, to Employment Tribunals one must first write to the employer by way of an internal appeal if the complaint is about unlawful termination of employment, or as a claim or enquiry if the complaint is about only e.g. unlawful deduction from pay ~one must allow the employer 28 days to respond -but the time limit to complain to Employment Tribunals (three months) is still as above -not from after then.

Also one must agree to ACAS (Advisory Conciliation and Arbitration Service) first trying to see, especially if wrongful dismissal or unfair dismissal, if there can be a conciliation, if a mutually satisfactory settlement can be reached on employment rights dispute, without a hearing by Employment Tribunals ~Employment Tribunals copy the complaint to ACAS who then contacts one ~complainants are not bound by any settlements with employers, even if signed -unless through ACAS or lawyers can still sue at the Employment Tribunals.

>> Employment legislation involves also some considerations:-

If the complaint to Employment Tribunal is one of wrongful dismissal -the unlawful termination of employment was by way of breach of contact (e.g. without notice or pay in lieu), then also the employer is entitled to argue that about one ~and to the extent that Employment Tribunals find that the employee was also in breach of contract any monies awarded for wrongful dismissal may be reduced -if it is genuinely a fundamental breach (i.e., goes to the heart, the root, of the employment relationship making it impossible).

In a complaint to Employment Tribunals of unfair dismissal -that unlawful termination (as distinct from wrongful dismissal) was in employment longer than one year and not for a reason fair (i.e. such gross incompetence or gross misconduct or taking into account the employers resources ‘some other substantial reason’ justifying dismissal claimed to be unfair dismissal) or that regardless of the length of employment unlawful termination, unfair dismissal, resulted from a ‘protected act’ of the employee or under any of the exemptions (as listed above), reinstatement or reengagement is not necessarily ordered if asked for ~if the Employment Tribunals think that trust and confidence considered necessary between the employee and the employer has been irreparably damaged then compensation is awarded -compensation for unfair dismissal may include, especially in e.g. sexual or racial discrimination cases, exceptionally, injury to feelings award of unlimited amount.

In any kind of complaint to Employment Tribunals -not only if there has been unlawful termination of employment by way of wrongful dismissal or unfair dismissal but any kind of workplace dispute relating to the employment relations, while normally there are no costs involved, if the complaint is ‘unreasonable’ (so totally groundless and ‘misconceived’ with no reasonable prospect of success -or vexatious or frivolous or scandalous [in the conduct of the proceeding in the circumstances, Block -v- Chapman, 2002, EAT, and, Bennett -v- Southwark Borough Council 2003, CA, if relevant in the context] ~especially if one was warned by Employment Tribunals -subject to Employment Tribunals’ duty to hear one), costs may be awarded against one of the other -including fees and expenses of lawyers instructed for that Employment Tribunal.

Also, in any type of complaint to Employment Tribunals, especially if wrongful dismissal (i.e. breach of employment contracts), one is expected to mitigate one’s financially measurable losses ~to the extent that Employment Tribunals think that one has not any compensation may be reduced (also when unlawful termination is not wrongful dismissal but unfair dismissal).

Where Employment Tribunals order re-instatement or re-engagement following unfair dismissal, such orders are not enforceable; if the employer refuses to comply compensation is substituted ~any monies ordered by Employment Tribunals to be paid, be it for unfair dismissal or wrongful dismissal (or unlawful deductions or holiday or notice pay or damages or injury to feelings or compensation -any monies) can not be enforced by Employment Tribunals -one must apply to a Country Court for payment enforcement (minus from damages or compensation for unfair dismissal or wrongful dismissal, where applicable, any unemployment pay received).

Employment Tribunals, in unfair dismissal, may not order re-instatement to positions filled ~and employers can not be ordered by Employment Tribunals to give references -but if in retaliation to complaint to Employment Tribunals in exempt cases it is victimization, if is defamatory and one can sue without legal aid it is in Tort slander -if injures, or libel.

Complaint forms are sent by Employment Tribunals upon request in good time and may be lodged by hand with Employment Tribunals or by post -allowing 2 days for receipt by Employment Tribunals, or fax, or internet -contacting Employment Tribunals if in 5 days unacknowledged.

The branch of Employment Tribunals to complain to is the one on Employment Tribunals’ list officially local to the employer.

A copy should be kept of the complaint and posting certificate or fax log -for Employment Tribunals in case of non-receipt.

It is better to first make a copy of Employment Tribunals complaint form before filling it in to use to e.g. re-phrase ~most fill it in hand-written -or write in the Particulars (what happened) part ‘as attached’ enclosing it word-processed.

Employment Tribunals may ask any dates one is not available.

Communications by a party to Employment Tribunals, and by Employment Tribunals to a party, are, as Employment Tribunals policy, copied to the other -by post.

After one lodges with Employment Tribunals a complaint (Originating Application), one may want to add another complaint or to amend it, or may need not readily available witnesses or documents in support of his case -it is better to wait for some three weeks to first receive from the Employment Tribunals a copy of the employer’s formal reply (Response); then one may write to the party one wants as witness or for any documents one wants to see (Inspection) or copied one at cost (Disclosure) or to be brought to the hearing (Production) and if refused may apply to the Employment Tribunals to Order them ~precedent suggest that amendments may be allowed if clear from particulars that what was meant is as applied to amend (Kay -v- Swiss Life & Health Insurance 2002 EAT) -a new complaint may be allowed to be added (Ashworth Hospital Authority -v- Liebling 1996 EAT) if it arises from same issue involved in complaint already made.

One may be asked Employment Tribunals (Directions) to list any financially measurable loss claimed -as compensation if unfair dismissal, or as damages if breach of contract -wrongful dismissal ~within normally 2 weeks to inform Employment Tribunals with direct copy employer.

The complainant (Applicant) and the employer (Respondent) are likely to receive Directions from the Employment Tribunals to normally not later than 14 days before the hearing exchange lists of Documents they intend to rely on, and not less than normally 7 days before the hearing to exchange any Witness Statements (their own and anyone else’s oral evidence -in written form, to be read out at the hearing); and that both should agree their documents and not have each a different but an Agreed Bundle of Documents (chronologically numbered & Indexed) in 5 identical sets: one each for own use, three for Employment Tribunals ~these are brought to the hearing -but may be sent to Employment Tribunals in advance with Outline Submissions (main points of one’s argument) if copied also to the other party.

It is important in one’s witness statement to try to address any issues which the employer is likely to argue before the Employment Tribunals and advantageous in the body of one’s witness statement itself to refer to one’s documents.

When the Notice of Hearing (date when complaint is to be heard by Employment Tribunals) is received, one is given time (usually 14 days) and may ask for the date or time set aside for the hearing to be changed ~Employment Tribunals’ ‘overriding objective’ takes into account what is involved (monies involved may affect this) and one may communicate opinion to Employment Tribunals that the case may take longer in Employment Tribunals estimation due to any complexities -then too may one ask with reason for hearing-date fixed (Listed) to be changed by Employment Tribunals.

One may receive postal offers from law firms who check Listed Employment Tribunals cases to represent one on a ‘no win, no fee’ basis; one does not have to engage any ~the purpose of Employment Tribunals is to enable un-represented laymen to put their cases without disadvantage -Employment Tribunals must conduct hearings with regard to ‘equity’.

At Employment Tribunals hearings rules and procedures and the order of evidence may be varied as Employment Tribunals see fit. If the complaint falls under one of the exemptions the employee normally goes first, otherwise the employer does. Evidence is normally read out from witness statement and members of Employment Tribunals may ask questions, the other party may cross-examine and one may re-examine one’s witness ~Employment Tribunals must consider complaints by having regard to the reason or the main reason stated by the employer. Often parties are asked to wait outside as Employment Tribunals deliberate -the decision (Judgment) is not reserved but read out tape-recorded at the end of the hearing by the Employment Tribunal’s Chairman.

>> Written Reasons one may have if within 14 days an application is received by Employment Tribunals ~this is important -appeals are not accepted without written reasons.

Review of the decision within 14 days of the hearing may also be asked for ~it can be on the ground that one did not receive a Notice of Hearing, or was absent from the hearing (if had not specifically made written submissions), or it is wrong because of an error of the Employment Tribunals’ staff, or there is new relevant evidence of which the existence could not reasonably have been foreseen, or ‘interests of justice require it’ (e.g. if the decision appears inconsistent with the evidence [although caution advises in allowing this Lindsey -v- Ironside Ray & Vials, 1994, IRLR 318], or if the Statute appears to have been ‘read-into’ [Haddon -v- Van Der Bergh, 1999, EAT], or if one was not asked about something that is stated as a reason) ~full details must be stated in writing for the Employment Tribunals to consider a Review -any review decisions should be kept.

Notes of Evidence, the only official record of Employment Tribunals’ proceedings (not transcribed verbatim and tape-recorders not being allowed), while in appeals parts of considered relevant may be applied for “It may happen on occasion that one or more of the members did not hear any particular sentence or sentences” and if its accuracy is challenged and conflicted (Dexine Rubber -v- Alker 1977 and Keskar -v- Governors of All Saints [etc.] School 1991, EAT) must be accepted of what the evidence and submissions were the Employment Tribunal’s Chairman’s recollection.

One has 42 days to lodge a Notice of Appeal from Employment Tribunals to the Employment Appeal Tribunal ~regardless of whether one has applied for a review -one may appeal if ‘no reasonable employment tribunal could have decided so’ or if ‘the law was wrongly interpreted or applied’ and particularizes it enclosing the Employment Tribunal’s (if reviewed, also upon review) written reasons.

Laws change, these are brief guidelines.

DICSCRIMINATON AND RELATED RIGHTS IN THE WORKPLACE

Equal opportunities workplace discrimination in sex discrimination cover sexual orientation, same-sex prejudice, adoption, paternity, maternity, parental, dependant leave, marital status, equal pay; race relations employment discrimination ethnic relations, religious discrimination, nationality, citizenship; discriminatory practices, disability discrimination.

Sex equality, race relations, disability work rights in employment discrimination laws are:-

A. It is employment discrimination contrary to nondiscrimination policy, unlawful prejudice, to treat employees e.g. working women, colored, foreign workers less favorably than others ~this is the basis of equal opportunities, nondiscrimination laws, in workplace discrimination, be it gender equality, racial equality, disability rights in employment -applying employment discrimination rights is illegal.

B. It is illegal workplace victimization to penalize one for complaining or inquiring about or doing anything in good faith in relation to employment discrimination -be it about discriminatory practices of e.g. gender prejudice or sexual orientation or ethnic relations, even if there has not been, and even if the employer retaliation is not itself employment discrimination ~causing detriment after employment ends also is employment discrimination.

Important details of employment discrimination are:-

Equal Opportunities are not minority rights, or women’s rights only ~it is equally illegal employment discrimination for e.g. black or women employers to subject to racial inequality or gender discrimination or sexual harassment a white an employee -in ethnic relations it is employment discrimination whether the employer belongs to a dominant majority group or a minority group.

Lawful prejudice is possible: in employment discrimination, whether it is race relations, ethnic relations, or sex equality, employers are entitled to employment discrimination in recruitment by preferring a particular racial or ethnic or gender or sexual orientation class to ensure fair gender equality or racial equality respecting nondiscrimination policy ~non-employment of the disabled is legal employment discrimination if workers are less than 20 -or if a legal musts, e.g. safety helmet for Sigh bike messenger.

Segregation, racial or ethnic, is not unlawful employment discrimination if genuinely otherwise it would disrupt ~in gender equality it is not illegal employment discrimination but lawful discriminatory practice to provide separate one-sex facilities to avoid embarrassment -it is also legal employment discrimination if it would offend a sizable faith.

Otherwise racial segregation can make liable in employment discrimination as race discrimination -if it arises from an employment discrimination complaint, additionally, also as employment victimization.

Employment victimization if is due to, e.g., gender prejudice, an employment discrimination complaint must have preceded it – Negorajam -v- Agnew, 1994.

Workplace harassment, be it sexual, religious or belief, ethnic or racial harassment, is more than employment discrimination -it can be, additionally to employment discrimination, a criminal offence ~also if it is only employment discrimination and on its own not of criminal nature, if persisted in, in employment or after termination.

Sex harassment or racist abuse by a colleague is not workplace harassment as employment discrimination if not in course of or at place of work nor related to work -action lies in equal opportunities but not as employment discrimination.

Workplace harassment, e.g., sexual harassment, is required in employment discrimination case-law to be shown to have adversely affected one’s dignity – Porcelli -v- Stratchlyde Rural District Council, 1980.

Religious or Belief Discrimination it is in equal opportunities and employment discrimination, because of one’s religion or belief, to apply a condition on the assumption that a law would not be respected -e.g. an undertaking that Sigh builders would wear helmets at all times, or that a Sigh judge would wear instead of his turban the wig worn in British courts of law.

Degrading treatment (which the above would also be) in employment discrimination under the race relations legislation (racial victimization -or religious, ethnic, color, nationality, citizenship) takes into account what the complainant considers to be degrading.

Age Discrimination may also be complained of, if employee or candidate may is refused employment because of his or her age, or in employment if is less favourably treated or subjected to victimization.

Disability discrimination while it is, in employment discrimination legislation, to not provide some 30% disability work for disabled employees in a workforce of 20 or more -with appropriate work and equipment and workplace adjustments, disability discrimination is subject to employment discrimination precedent and the courts may regard an employer’s failure in special interviewing arrangements not a discriminatory practice amounting to employment discrimination but failure of the disabled job applicant, even if the special arrangements need was stated on the application and details were never asked, if disabled persons fail to specify them .

Disability discrimination is legal if the workforce is less than 15 ~also if of indirect effect on disabled workers -it is employment discrimination only if it affects directly.

Disabilities do not entitle to equal rights or disability rights in disability employment discrimination unless for a year seriously disabled in ordinary daily activities -else it is not employment discrimination.

Genuine occupational qualification excuses employment discrimination -in equal opportunities employment rights it is a genuine occupational qualification is one that does not unjustly disqualify an entire class of, e.g., female workers or married women employees, or staff transsexual or of a different sexual orientation, or alien workers ~in employment discrimination such proof is on the employer in sex or race discrimination claims – Panesaar -v- Nestle 1980.

Grading of employees vulnerable to employment discrimination -e.g. of working women or black or immigrant workers, may be complained of as employment discrimination ~employer must show that were not taken into account personal factors, e.g. a working woman likely to take maternity leave or a single parent working girl, in assessing – National Vulcan Engineering -v- Wade, 1977.

Maternity leave, paternity or parental or adoption or dependant leave, in employment discrimination laws are for all -married, partner, or neither ~if it is agreed contractually, employment discrimination laws forbid employers to prefer the contractual or the statutory entitlement -in equal opportunities applicable to employment discrimination employees choose which.

Comparison must be made if one is directly subjected to employment discrimination to show that employment discrimination to have been by way of less favorable treatment of the complainant than other workers – Aziz -v- Trinity Taxis, 1998.

Less favorable treatment complained of as employment discrimination must have taken place at the workplace or must be in relation to employment, otherwise it is not employment discrimination ~in ethnic relations, e.g., employer’s excluding from a house-warming party is not equal opportunities race equality breach of nondiscrimination policy -but it is employment discrimination if from a workers’ office party – Walters -v- Metropolitan Police, 1997.

Equal pay if the employment discrimination has been in respect of, it is inessential for comparison to be of identical work -in employment discrimination precedent similar work suffices, e.g., a single working girl’s work and a married working woman’s like work – Hayward -v- Canwell Laird Shipyards, 1977.

Internal Appeal offer in employment discrimination must precede worker’s dismissal, if made – James -v- Waltham Holy Cross Urban District Council, 1973.

Claims for employment discrimination or, e.g., sexual harassment or color victimization must allege so -if the worker only claims only unfair dismissal the qualifying period may bar an, e.g., race equality employment discrimination case exempt from the qualifying period requirements – British Airways Engine Overhaul -v- Francis, 1981.

Qualifying period for suing does not apply to employment discrimination and workplace harassment -no particular length of service need be shown to sue for employment discrimination ~also so in equal opportunities workplace victimization.

Time limit does apply -in employment discrimination legal proceedings must be commenced within three months of the equal opportunities breach or of when the employment discrimination, or the employment discrimination victimization, became known – Cornelius -v- University College -Swansea 1987.

Questionnaires are part of equal opportunities claims in employment discrimination whether sex discrimination, color prejudice, workplace harassment, or employment victimization ~one may serve one on the employer and use answers or non-reply in arguing employment discrimination.

Amendments may be allowed by employment tribunals to employment discrimination complaints, only if are about a matter included in the in employment discrimination particulars – Swiss Life & Health Insurance -v- Kay, 2004.

Additional claims based on same employment discrimination also so – Ashworth Hospital -v- Liebling, 1996.

Onus of proof in employment discrimination is the complainant’s on a balance of probabilities ~regard to employer’s reasons for the alleged employment discrimination can reverse that – Humphrey’s -v- Board of Management of St. George’s School, 1978.

The European Court of Justice has ruled in employment discrimination cases that there is no limit on what may be awarded for injury to feelings in claims arising from workplace discrimination.

Costs may be involved if a party, including the complainant, has been vexatious, frivolous, or “otherwise unreasonable” –normally, in the course of or in relation to the proceedings.

Laws change; these are brief guidelines.

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

 

 

 

 

 

 

There are many companies that specialize in pre-employment background checks. It is outside the purpose of this fact sheet to identify background checking companies by name. The most important thing to keep in mind is that Employment Background check companies fall into several broad categories. This can range from individuals commonly known as “private investigators,” to companies that do nothing but employment screening, and to online data brokers.

Corporations that employ large numbers of people may have an established relationship with a third-party background checking company or may even use an affiliated company for their employment screening. Other background checking companies may work on a less formal basis with employers. There are about several companies that conduct employment screening and thousands others nationwide, including private investigators.

There are certainly a number of sites that offer free online criminal background check information and procedures, but with the advantage of easy access to this information, there lies a downside. Criminals and thieves also now have easy access in acquiring your personal information; identity theft had become rampant with the implementation of this new system. Crooks are finding more and more ways to fish out personal data from a lot of places.

With the information age upon us, it is easy for employers to gather background information themselves. Much of it is computerized, allowing employers to log on to public records and commercial databases directly through dial-up networks or via the Internet. Finding one of these online companies is as easy as using an Internet search engine to find web sites that specializes in “background checks.” Employers should beware of companies advertising on the Internet that they can “find everything about anyone.” They are not necessarily going to be in strict compliance with federal and state laws, especially the provisions that require accuracy of background check reports.

Are you interested to read more on the Employment Background Check? If you are, then get more information from Employment Background Check!