Civil remedies

Makes the Hawaii fair employment practices law more consistent
with federal law by limiting the sum of compensatory and punitive
damages for employment discrimination claimants, eliminating
attorney and expert witness fee awards to complainants, and
allowing for attorney fee awards to the prevailing party.

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 368-17, Hawaii Revised Statutes, is
 2 amended by amending subsection (a) to read as follows:
 3      "(a)  [The] Pursuant to section 378-5, remedies ordered by
 4 the commission or the court under this chapter may include
 5 compensatory and punitive damages and legal and equitable relief,
 6 including[,] but not limited to:
 7      (1)  Hiring, reinstatement, or upgrading of employees with
 8           or without back pay;
 9      (2)  Admission or restoration of individuals to labor
10           organization membership, admission to or participation
11           in a guidance program, apprenticeship training program,
12           on-the-job training program, or other occupational
13           training or retraining program, with the utilization of
14           objective criteria in the admission of persons to those
15           programs;
16      (3)  Admission of persons to a public accommodation or an
17           educational institution;
18      (4)  Sale, exchange, lease, rental, assignment, or sublease
19           of real property to a person;

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 1      (5)  Extension to all persons of the full and equal
 2           enjoyment of the goods, services, facilities,
 3           privileges, advantages, or accommodations of the
 4           respondent;
 5      (6)  Reporting as to the manner of compliance;
 6      (7)  Requiring the posting of notices in a conspicuous place
 7           that the commission may publish or cause to be
 8           published setting forth requirements for compliance
 9           with civil rights law or other relevant information
10           that the commission determines necessary to explain
11           those laws;
12      (8)  Payment to the complainant of damages for an injury or
13           loss caused by a violation of chapters 489, 515, part I
14           of chapter 378, or this chapter, including a reasonable
15           attorney's fee; and
16      [(9) Payment to the complainant of all or a portion of the
17           costs of maintaining the action before the commission,
18           including reasonable attorney's fees and expert witness
19           fees, when the commission determines that award to be
20           appropriate; and
21     (10)] (9)  Other relief the commission or the court deems
22           appropriate."

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 1      SECTION 2.  Section 378-5, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "378-5 Remedies.(a)  The commission may order
 4 appropriate affirmative action, including[,] but not limited
 5 to[,] hiring, reinstatement, or upgrading of employees, with or
 6 without [backpay,] back pay, restoration to membership in any
 7 respondent labor organization, or other remedies as provided
 8 under chapter 368, which in the judgment of the commission, will
 9 effectuate the purpose of this part, including a requirement for
10 reporting on the manner of compliance.
11      (b)  In any civil action brought under this part, if the
12 court finds that a respondent has engaged in or is engaging in
13 any unlawful discriminatory practice as defined in this part, the
14 court may enjoin the respondent from engaging in [such] unlawful
15 discriminatory practice and order [such] affirmative action as
16 may be appropriate, which may include[,] but is not limited to[,]
17 reinstatement, hiring, or upgrading of employees, with or without
18 [backpay,] back pay, or restoration of membership in any
19 respondent labor organization, or any other equitable relief the
20 court deems appropriate.  [Backpay] Back pay liability shall not
21 accrue from a date more than two years prior to the filing of the
22 complaint with the commission.

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 1      [(c)  In any action brought under this part, the court, in
 2 addition to any judgment awarded to the plaintiff or plaintiffs,
 3 shall allow costs of action, including costs of fees of any
 4 nature and reasonable attorney's fees, to be paid by the
 5 defendant.]
 6      (c)  Compensatory damages awarded under this section shall
 7 be exclusive of back pay and interest on back pay.
 8      (d)  Compensatory damages shall not be recoverable for an
 9 employment practice that is unlawful because of disparate impact.
10 The sum of the amount of compensatory damages awarded under this
11 section for future pecuniary losses, emotional pain, suffering,
12 inconvenience, mental anguish, loss of enjoyment of life, and
13 other nonpecuniary losses, and the amount of punitive damages
14 awarded under this section, shall not exceed the following for
15 each complainant:
16      (1)  $15,000 for a respondent who has less then fifteen
17           employees in each of twenty or more calendar weeks in
18           the current or preceding calendar year;
19      (2)  $50,000 for a respondent who has fifteen or more
20           employees but less than one hundred employees and in
21           each of twenty or more calendar weeks in the current or
22           preceding calendar year;

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 1      (3)  $100,000 for a respondent who has one hundred employees
 2           or more but less than two hundred employees in each of
 3           twenty or more calendar weeks in the current or
 4           preceding calendar year;
 5      (4)  $200,000 for a respondent who has two hundred employees
 6           or more but less than five hundred employees in each of
 7           twenty or more calendar weeks in the current or
 8           preceding calendar year; and
 9      (5)  $300,000 for a respondent who has five hundred
10           employees or more in each of twenty or more calendar
11           weeks in the current or preceding calendar year.
12      (e)  In any action to enforce this chapter, the commission
13 or a court may allow to the prevailing party, other than the
14 commission or the State, the costs of maintaining the action,
15 including reasonable attorney's fees and expert witness fees.
16 The commission and the State shall be liable for the same costs
17 as a private person.  In determining whether or to what extent an
18 award of costs shall be justified, the following factors may be
19 considered:
20      (1)  Whether a party unreasonably protracted legal
21           proceedings;
22      (2)  Whether a complainant's position was substantially
23           justified in fact and existing law or a good faith

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 1           argument for the extension, modification, or reversal
 2           of existing law; and
 3      (3)  Whether a party in good faith sought to mitigate
 4           damages or exposure."
 5      SECTION 3.  If any provision of this Act, or the application
 6 thereof to any person or circumstance is held invalid, the
 7 invalidity does not affect other provisions or applications of
 8 the Act which can be given effect without the invalid provision
 9 or application, and to this end the provisions of this Act are
10 severable.
11      SECTION 4.  Statutory material to be repealed is bracketed.
12 New statutory material is underscored.
13      SECTION 5.  This Act shall take effect upon its approval.
15                           INTRODUCED BY:  _______________________