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HB Legal: Employment Law 2013

(page 4 of 4)

Lani Narikiyo, Partner, Labor, Employment and Employee Benefits Group

Employment discrimination and retaliation charges continue to plague employers in Hawaii. In 2011-2012, 558 charges were filed with the Hawaii Civil Rights Commission, with disability, sex and age discrimination being the most frequently filed complaints. In 2012, 319 charges were filed with the Equal Employment Opportunity Commission, with retaliation accounting for 42% of all charges.

Q: What can employers do to avoid a discrimination or retaliation charge?

A: In a nutshell, employers must:

1. Be educated on the law and keep up to date on changes. For example, as of 2011, gender identity or expression discrimination was added in Hawaii as a protected class. As of 2012, domestic or sexual violence victims in Hawaii are protected against employment discrimination, and employers must make reasonable accommodations for such victims.

2. Understand that employers may escape liability for discrimination or harassment while still being held liable for retaliation. Retaliation can broadly include any action by the employer that may have dissuaded a reasonable employee from making or supporting a discrimination complaint.

3. Promulgate clear anti-discrimination and harassment policies, including a non-retaliation policy, that encourages employees to report unacceptable conduct without fear of reprisal and also provides a reporting and investigative process.

4. Invest in training managers on their responsibilities. A well written policy is not helpful if managers are not properly trained on what it means, how it should be applied, and how to respond properly.

5. Create a company culture where managers are responsive to employee workplace concerns. “I’m too busy” is not a defense. As issues of discrimination and retaliation arise, consult promptly with your legal counsel.


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