William Hoshijo, executive director of the Hawaii Civil Rights Commission, is gratified when its work yields results in the courtroom, but some important cases have been settled by the commission itself. Last year, in Cervelli v. Aloha Bed & Breakfast, the Hawaii Intermediate Court of Appeals upheld a decision in favor of a lesbian couple renting a room, rejecting the owner’s religious justification to deny them.
But a month ago, in a similar issue, the commission itself found in favor of Kiona Boyd who had complained that her landlord, Jeffrey Primack, discriminated against her on the basis of her transgender identity. It signified the strength of Hawaii’s civil rights law, Hoshijo said, according similar rights in transgender as well as sexual orientation cases.
The agency office is located within the state Department of Labor and Industrial Relations, and it is the labor uprisings of the 1940s that provided the environment for the civil-rights movement that followed. So although at its enactment 30 years ago this state was among the last to create an agency for civil rights, Hoshijo said, Hawaii had a fair employment law since 1963.
The Hawaii-born Hoshijo, 62, earned his law degree at the University of California at Davis and returned home to work in immigration law for the nonprofit firm Na Loio. He now heads a staff of 27 at the publicly funded commission, including attorneys, investigators and a mediation coordinator.
In the past fiscal year, five cases were docketed for contested case hearings before the commission. The ones that move forward tend to involve unsettled law, he said, but most are more clear-cut on liability and damages, so they settle.
There’s no fee for cases submitted to the HCRC or its federal corollary, the Equal Employment Opportunity Commission. And the complaints do keep coming in.
“We have strong civil rights laws, and so in some ways we are, I would say, better off than other places,” Hoshijo added. “But it’s unfinished work.”
Question: Have there been any major shifts in the cases most commonly brought to the commission?
Answer: I have served as executive director of the commission (HCRC) since 1997.
The HCRC has jurisdiction over complaints of discrimination in employment, housing, public accommodations, and state and state-funded services. 85-90% of the complaints filed with the HCRC are employment discrimination complaints. That has not changed over time.
Our state fair employment law prohibits discrimination based on race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, or domestic or sexual violence victim status.
Early on, and for many years, the largest number of complaints filed were sex discrimination complaints, and of those the largest number were sexual harassment or pregnancy discrimination complaints. After sex discrimination … were disability, race, and retaliation for complaints of or opposition to discrimination.
Over time there has been a shift, with the largest number of complaints in recent years alleging disability discrimination, followed by age, retaliation and sex. The growing number of disability complaints may be attributable to the aging of our population and workforce, increasing consciousness of rights … and law amendments clarifying and broadening the definition of a covered disability.
Q: How do you assess this state’s alignment with Title IX — its efforts to improve gender equity in education?
A: Under state and federal fair employment laws … employees in state educational programs and activities are protected against sex discrimination, including sexual harassment.
State civil rights law does not provide such protections for students in state educational programs and activities. …
The need for state law protection for students is heightened by U.S. Department of Education rollbacks on Title IX protections, leaving vulnerable students with little or no protection against discrimination based on gender identity or expression, or sexual orientation.
Q: What was learned from the Boyd-Primack housing discrimination case?
A: There are two key takeaway lessons from the Boyd v. Primack housing discrimination case:
Hawaii’s state fair housing law provides stronger protections than the federal Fair Housing Act in several respects. Our state law clearly and expressly prohibits discrimination based on sex, including gender identity or expression, or sexual orientation.
And, the commission’s final decision is a strong statement warning housing providers that harassment, intimidation and discrimination against individuals based on gender identity or expression will not be tolerated.
Q: Do you have any concerns about racial or religious hostilities affecting Hawaii?
A: We in Hawaii are not immune from the menace of racism, anti-immigrant xenophobia and religious bigotry that we would like to think doesn’t affect us here. We have seen the rise of anti-Micronesian sentiment and reports of anti-Semitic and anti- Muslim incidents in Hawaii. …
Hate speech and hate crimes violate the deepest values of aloha (loving compassion) and lokahi (unity) that we in Hawaii hold dear. The people of Hawaii must join together and stand against anti-Semitism and anti- Muslim bigotry, racism and xenophobia, to condemn stereotyping, prejudice and discrimination, in all their forms, wherever they are committed or enabled through silence.
The mission of the Hawaii Civil Rights Commission is to eliminate discrimination by protecting civil rights and promoting diversity through enforcement of anti-discrimination laws and education. It is a mission that we take seriously.
Q: Have you seen any spike in the number of sexual harassment complaints?
A: With the growth of the #MeToo movement, … workplace sexual harassment has captured the attention of the nation with interest and intensity unseen since Professor Anita Hill’s confirmation hearing testimony about sexual harassment by now-sitting U.S. Supreme Court Justice Clarence Thomas.
We are living through a watershed moment of reckoning and culture change. … We ask why sexual harassment is still such an invidious and prevalent problem that continues to undermine women’s opportunity to succeed in the workplace, more than three decades after the U.S. Supreme Court’s landmark decision in Meritor Savings Bank v. Vinson.
A 2016 report of the EEOC Select Task Force on the Study of Harassment in the Workplace foreshadowed subsequent revelations and developments … reporting that workplace harassment remains a persistent problem that often goes unreported, and that much of the training done over the last 30 years has been ineffective, because it has been focused on avoiding liability rather than accountability.
In the midst of this, however, we have not seen an increase in the number of sexual harassment complaints in Hawaii from 2017 through 2019. Which begs the question, why not?
The answer likely lies in a combination of several contributing factors:
>> Employers and management attorneys are doing a better job with harassment training.
>> The number of plaintiff attorneys in Hawaii who specialize in fair employment law is very small, and people have a hard time finding and affording an attorney.
>> Litigation of sexual harassment cases is costly and time-consuming.
>> Barriers to filing complaints include fear of retaliation, lack of information, and cultural reluctance to complain.
>> More employers are using private dispute resolution processes, including mandatory arbitration, to cut off worker access to the courts.
Q: When should someone with a complaint reach out to your office?
A:If you feel you have been subjected to discrimination in employment, housing, public accommodations or state-funded services on any basis protected under state law, contact the HCRC at 586-8636, or email DLIR.HCRC.INFOR@hawaii.gov.
