REPORT TITLE:
Empylt discrimination


DESCRIPTION:
Capping the amount of compensatory damages for which employers
may be held liable, and allowing attorney fees and costs to be
awarded to a prevailing defendant as well as a prevailing
complainant in an action before the Civil Rights Commission or a
court.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO CIVIL REMEDIES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 368-17, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  [The] Subject to section 378-5, the remedies ordered
 
 4 by 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;
 
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)] and
 
22      (9)  Other relief the commission or the court deems
 
23           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 to,
 
 5 hiring, reinstatement, or upgrading of employees, with or without
 
 6 backpay, restoration to membership in any respondent labor
 
 7 organization, or other remedies as provided under chapter 368,
 
 8 which in the judgment of the commission, will effectuate the
 
 9 purpose of this part, including a requirement for reporting on
 
10 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 may
 
16 be appropriate, which may include, but is not limited to,
 
17 reinstatement, hiring, or upgrading of employees, with or without
 
18 backpay, or restoration of membership in any respondent labor
 
19 organization, or any other equitable relief the court deems
 
20 appropriate.  Backpay liability shall not accrue from a date more
 
21 than two years prior to the filing of the complaint with the
 
22 commission.
 
23      (c)  [In any action brought under this part, the court, in
 
24 addition to any judgment awarded to the plaintiff or plaintiffs,
 

 
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 1 shall allow costs of action, including costs of fees of any
 
 2 nature and reasonable attorney's fees, to be paid by the
 
 3 defendant.]  Compensatory damages shall not be recoverable for an
 
 4 employment practice that is unlawful because of disparate impact.
 
 5      (d)  The sum of the amount of compensatory damages awarded
 
 6 under this section, exclusive of back pay and interest on back
 
 7 pay, for future pecuniary losses, emotional pain, suffering,
 
 8 inconvenience, mental anguish, loss of enjoyment of life, and
 
 9 other nonpecuniary losses, and the amount of punitive damages
 
10 awarded under this section, shall not exceed for each
 
11 complainant:
 
12      (1)  $15,000 for a respondent who has less than 15 employees
 
13           in each of 20 or more calendar weeks in the current or
 
14           preceding calendar year;
 
15      (2)  $50,000 for a respondent who has 15 or more employees
 
16           but less than 100 employees in each of 20 or more
 
17           calendar weeks in the current or preceding calendar
 
18           year;
 
19      (3)  $100,000 for a respondent who has 100 employees or more
 
20           but less than 200 employees in each of 20 or more
 
21           calendar weeks in the current or preceding calendar
 
22           year;
 

 
 
 
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 1      (4)  $200,000 for a respondent who has 200 employees or more
 
 2           but less than 500 employees in each of 20 or more
 
 3           calendar weeks in the current or preceding calendar
 
 4           year; and
 
 5      (5)  $300,000 for a respondent who has 500 employees or more
 
 6           in each of 20 or more calendar weeks in the current or
 
 7           preceding calendar year.
 
 8      (e)  In any action to enforce this chapter, the commission
 
 9 or a court may allow to the prevailing party, other than the
 
10 commission or the State, the costs of maintaining the action,
 
11 including reasonable attorney's fees and expert witness fees.
 
12 The commission and the State shall be liable for costs the same
 
13 as a private person.  In determining whether or to what extent an
 
14 award of costs shall be justified, the following factors may be
 
15 considered:
 
16      (1)  Whether a party unreasonably protracted legal
 
17           proceedings; 
 
18      (2)  Whether a complainant's position was substantially
 
19           justified in fact and existing law or a good faith
 
20           argument for the extension, modification, or reversal
 
21           of existing law; and
 
22      (3)  Whether a party in good faith sought to mitigate
 
23           damages or exposure."
 

 
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 1      SECTION 3.  If any provision of this Act, or the application
 
 2 thereof to any person or circumstance is held invalid, the
 
 3 invalidity does not affect other provisions or applications of
 
 4 the Act which can be given effect without the invalid provision
 
 5 or application, and to this end the provisions of this Act are
 
 6 severable.
 
 7      SECTION 4.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 5.  This Act shall take effect upon its approval.
 
10 
 
11                           INTRODUCED BY:  _______________________