And “well-established federal law under Title VII that an employer is liable for actionable sexual harassment by supervisors with immediate (or successively higher for it) to the employee. “In cases where the employee did not suffer a” tangible employment action “such as discharge, demotion or an adverse change, there is an affirmative defense that prevent an employer to Title VII can increase liability and damages.

Under this affirmative defense if an employer has an anti-bullying is relevant evidence. The training is also important to ensure effective supervision and training of employees on harassment and complaint procedures.

Education and training for all employees to play an even greater importance under the laws of the State of Hawaii, HRS Chapter 378th State law is currently used by the Hawaii Civil Rights Commission interpreted ( “HCRC”) is committed as a mandate strict liability for sexual harassment by supervisors.

While the Hawaii Supreme Court, not the interpretation of HRS Chapter 378, Illinois HCRC a recent decision of the Illinois Supreme Court confirmed a decision address the Commission on Human Rights which deals with a similar arrangement with HCRC’s – that an employer has been working for the harassing conduct of a leader in Illinois state law, even if the contractor does not even direct oversight of the complaint.

On 16 April 2009, the decision of Illinois is certainly convincing, a Hawaii Supreme Court, the regulation is to interpret before HCRC. Therefore, it is important to understand the employer in Hawaii, the importance of an effective policy and a training program company-wide, not only the defense of an alleged sexual harassment, but prevention.

I. The importance of an effective policy against harassment

A. The Faragher / Ellerth Defense

Do you have an effective sexual harassment policy and training program will significantly the possibility of avoiding liability under the Defense positive increase of sexual harassment claims by the U.S. Supreme Court recognized 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 allegations of harassment by the authorities did not lead to a negative ( “tangible”) to keep working the decision, the employer may avoid liability by showing that: to prevent (1) the employer exercised reasonable care and correct promptly do not use inappropriate harassing behavior and (2) the plaintiff, any preventive or corrective opportunities the employer provided to prevent damage. “Tangible employment action constitutes a significant change in employment status, such as hiring, firing, if on, reassignment with significantly different responsibilities or a decision that promote a significant change in the performance.” Ellerth, supra.

The importance of the Faragher / Ellerth defense was significantly higher with the decision of the Supreme Court of the United States in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which stated that the defense in cases of constructive discharge is available , unless the applicant completed in a reasonable response to an employer-sanctioned adverse effect of an official nature, such as a demotion or a reduction in wages.

A zero-tolerance harassment policy must adapt to the environment and the employees. Ellerth, the Court said

While proof that an employer had announced a policy antiharassment appeal is not necessary in every case as a matter of law, the need for a stated policy suitable to be addressed to the circumstances of the work as appropriate in any case where legal the first element of the defense. The policy should be written in plain English so that all employees can understand, regardless of their level of education or background. . . [politics] should be a clear and precise definition of unlawful harassment experienced, so that employees, what kind of behavior that is prohibited by policy and will be able to recognize this behavior should occur.

Therefore, if the suspect has supervisory authority over the victim, the employer be held automatically liable for any harassment committed by supervisors, unless the employer successfully raise the affirmative defense.

B. Tips for writing a zero-tolerance policy and procedure for complaints.

(1) Just write.

(2) Includes a clear definition and examples of prohibited conduct, and it is broad enough to prohibit any form of harassment.

“(3) status of the firm” zero tolerance “policy with regard to the philosophy of all forms of harassment,

(4) appoint at least two specially trained officers, who are responsible for investigating complaints of harassment to the company.

(5) Determine the appeal that will be used to investigate allegations of harassment by officers, employees and outsiders are.

(6) a “clear chain of communication so that employees outside the normal hierarchy step, in which the supervisor is the harasser, and believes that an employee can call the toll free telephone number.

(7), that prohibits the behavior of employees who report to be protected from retaliation.

(8) that the employer will promptly examine the matter in an objective and unobtrusive.

(9) will give you exposed in the form of disciplinary measures for offenders can expect.

(10) indicates that employers take, corrective action.

(11) train your staff line managers and employees on policy and procedures.

Signed (12) each have a form of recognition of workers who have received a copy of the policy and procedure, and who is training on the harassment book.

C. The Faragher / Ellerth defense and Hawaii Law

Like Title VII, Hawaii Employment Practices Act prohibits discrimination against people in almost all aspects of employment. However, it remains an open question whether an employer is affirmed by the law of the State of Hawaii, may assert the Faragher / Ellerth defense.

Currently, under regulations promulgated by the HCRC, the state agency for the enforcement and interpretation of the Hawaii Employment Practices Act, applies strict liability, the prosecution of a head of a child, whether that action is taken concrete:

§ 12-46-109 Sexual Harassment.

(a) harassment on grounds of sex is a violation of Chapter 378, HRS. Unwanted 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 of such conduct is either explicitly or implicitly a term or condition of employment of a natural person or

(2) Submission or rejection of such conduct by an individual is affected as a basis for employment decisions that individual or used

(3) Such conduct has the purpose or effect, unreasonably interfere with work performance or an individual work of creating an intimidating, hostile, or offensive.

(b) In determining whether the alleged conduct constitutes sexual harassment, the Commission will consider the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents. The determination of the legality of an action will be carried out by the facts, case by case basis.

Employees (c) The employer is responsible for his actions and his agents and supervisors in charge of sexual harassment, regardless of whether the specific acts complained of were authorized or even forbidden, regardless of whether the employer or other subjects which he knew or their presence would have known. The Commission will consider whether the particular circumstances of the employment relationship and the work of the various functions in order to determine whether a person has acted, held a supervisory or agency capacity.

(d) With respect to the conduct of its employees is the employer for the acts of sexual harassment in the workplace if the employer or his representatives or executives know or would not have to know the behavior and liable to take immediate and appropriate corrective action. An employee who can not tell from sexual harassment by a colleague, the employer, its agent or employee of supervisory harassment, but the failure of a worker to these remarks give an affirmative defense.

D. problem areas for employers

* Lack of appeal

* The failure of the policy to spread

* An employer with a notice of harassment

* Failure to promptly investigate

* Not to take appropriate disciplinary measures,

* Error applying to it impartially

* Failure to revise, if necessary

* The lack of training

E. Illinois Supreme Court decision, a premonition of Hawaii law?

In Sangamon Cty Sheriff’s Dept. v. The Illinois Human Rights Comm’n, No. 105,517, 105,518 drawbacks. (Fig. 16 April 2009) decided on 16 April 2009, the Supreme Court of Illinois because of the support of the interpretation that the direct HCRC HCRC HRS Chapter 378th

The decision keeps the Sangamon Illinois employers strictly liable for sexual harassment by each of its administrative or supervisory personnel, and, as stated by the opposition, “writes a standard of liability that appears unprecedented in any jurisdiction in the United States.”

In this case, employees Feleccia a complaint against the employer, sexual harassment, Sangamon County Sheriff’s Department, and Ron Yanor, the supervisor but not Feleccia’s immediate supervisor. The Illinois Human Rights Commission ruled that the Sheriff’s Department was responsible for conducting an objective Yanor under the law, because there was Yanor a counselor. The appeals court has reformed Illinois, and Feleccia and the Commission appealed to the Supreme Court of Illinois.

The Illinois Supreme Court reversed and upheld the decision of the Commission. In a 4-2 decision by the Illinois Supreme Court agreed that the Sheriff’s Department can be held strictly liable in such cases. The decision was based on the literal and ordinary meaning of the statute, which states: “An employer shall, for purposes of sexual harassment by employees of employers or employees from nonmanagerial and nonsupervisory employees only if the employer he aware of the behavior and not to take appropriate remedial action. ”

The Court noted that the law is clear, “and you only include” non-employee “and” said nonmanagerial or nonsupervisory employees “from the standard of strict liability. As such, the Court,” [t] here is no language in the law the employer’s liability is limited to the relationship of the perpetrator to the victim. “The Court rejected the employer’s argument that federal law should apply to the case.

Second, the importance of conducting EEO training

Of course, in Hawaii, the HCRC has simply interpreted the language of HRS Chapter 378 law for strict liability for supervisory harassment was discriminatory. Designed Unlike the Illinois statute by the Supreme Court of Illinois is an exaggeration to claim that the law does not Hawaii law is clear and not easy.

However, the HCRC is charged with the interpretation and application of HRS Chapter 378 and bodes ill for the employers that Hawaii’s high court of another state willing to enforce what some consider that harsh sanctions against the defendant employers. As a result, employers should redouble their efforts in Hawaii, train supervisors and employees regularly about the prevention of discrimination and harassment in the workplace. Training are the consequences of violation of company policy.

Training of employees reduces the likelihood that the behavior they tolerate, or to a level that create a hostile environment can be used. See arquero v. Hilton Hawaiian Village, 104 Hawaii 423, 91 S. 3d 505 (2004) (employee of the complainant’s buttocks squeezed twice), Nelson v. University of Hawaii, 97 Hawaii 376, 38 P. 3d 95 (2001) ( verbal harassment).

Second, if inappropriate behavior occurs, employees who are injured significantly more likely appeal to employers, allowing employers to use to remedy and prevent the case brought against them.

Finally, education is a tool to prevent and reduce the potential for supervisory harassment.

A. The training of prevention

The EEOC’s political orientation, sexual harassment, says

The employer must ensure that their supervisors and managers understand their responsibilities, as part of an anti-bullying policy and complaint procedures. Initial qualification and periodic training of these individuals can contribute to achieving this result. Such training should explain the kind of behavior that the employer’s anti-bullying policy, the severity of the policy to violate the responsibilities of supervisors and managers when they learn of alleged harassment, and the prohibition of retaliation.

HCRC The regulations state that “prevention is the best tool to eliminate sexual harassment. Employers should positively enhance the theme of increasing the expression of strong disapproval, developing appropriate sanctions, informing employees of their right to, and how the raise issue of sexual harassment, and stop all necessary measures to prevent sexual harassment. “§ 12-46-109 (g).

As part of its solution for the employer, the EEOC and the HCRC compulsory education have chosen as one of the primary reaction by the use of consent decrees that the companies to provide training and ensure compliance with the policies must.

In 2004 the California legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to carry out a required sexual harassment training for all officers to January 2006 in order to support the HCRC and the EEOC’s position that the education and training is the best means of prevention. Under California law, the training should re-test every two years, and all new supervisors after the first round of training must go through the program within six months of their arrival brought.

Executives who are the consequences of sexual harassment may be less inclined to consciously take official action to realize the liability of agents responsible for the organization – can the right of the employer, the Faragher / Ellerth affirmative defense in cases of to receive constructive discharge. Even managers who are aware of how to deal with complaints of harassment by employees, rather go with an appropriate response to the employer to act, thereby showing a greater under the first prong of the Faragher / Ellerth affirmative defense.

Finally, as mentioned in this article, or training can be an effective tool to combat inappropriate behavior by supervisors and the risks posed by the law of the state to reduce especially insofar as it is interpreted, like the decision of the Supreme Court of Illinois.

B. Training and Faragher / Ellerth Defense

Play the training strengthens the possibility of avoiding liability under the Faragher / Ellerth affirmative defense. The importance of this defense was established by the decision Suders, who said that the defense in cases of constructive discharge is available, unless the applicant completed in a reasonable reaction to a negative effect of increased employer-sanctioned official character, such as a demotion or a reduction of wages.

The training of rank and file employees to document and where it should be conducted periodically, can contain a certification by the employee that he or she does not have any violations of the policy after the last training.

C. Education and compensation issues under Hawaii law

In general, the individual can not be held responsible for the violation of federal law. Under Hawaii law, but can range from the lower court award of compensatory and punitive damages.

Significantly, unlike Title VII, individuals can be held accountable for violations of the Hawaii Employment Practices Act are See HRS § 378-1 (definition of “employer” to “any person”) and § 378-2 (3) (the cause it is illegal to help for any person “to” Abet, compel, or force that makes the doing of any discriminatory practices prohibited by this part, or tried to do so. “); Schefke v. Reliable Collection Agency, be made 96 Hawaii 408, 32 P. 3d 52, 93-94 (2001) (holding individuals responsible, under Hawaii Employment Practices Law).

Training may respond warn against financial risks if they engage in behavior prohibited by law, Hawaii.

D. Training with exposure to punitive damages reduced

In Kolstad v. American Dental Association, the Court held that “can not be in the context of punitive damages, an employer is indirectly responsible for the discriminatory employment decisions of the management agent, if those decisions conflict with the efforts to meet good employer Title VII of the Faith. “Therefore, the compliance effort is required and sufficient to avoid liability for damages.

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

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