Report Title:
Civil Remedies
Description:
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. |
971 |
TWENTY-SECOND LEGISLATURE, 2003 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO CIVIL REMEDIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 368-17, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) [The] Pursuant to section 378-5, remedies ordered by the commission or the court under this chapter may include compensatory and punitive damages and legal and equitable relief, including[,] but not limited to:
(1) Hiring, reinstatement, or upgrading of employees with or without back pay;
(2) Admission or restoration of individuals to labor organization membership, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program, with the utilization of objective criteria in the admission of persons to those programs;
(3) Admission of persons to a public accommodation or an educational institution;
(4) Sale, exchange, lease, rental, assignment, or sublease of real property to a person;
(5) Extension to all persons of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the respondent;
(6) Reporting as to the manner of compliance;
(7) Requiring the posting of notices in a conspicuous place that the commission may publish or cause to be published setting forth requirements for compliance with civil rights law or other relevant information that the commission determines necessary to explain those laws;
(8) Payment to the complainant of damages for an injury or loss caused by a violation of chapters 489, 515, part I of chapter 378, or this chapter, including a reasonable attorney's fee;
[(9) Payment to the complainant of all or a portion of the costs of maintaining the action before the commission, including reasonable attorney's fees and expert witness fees, when the commission determines that award to be appropriate;] and
[(10)](9) Other relief the commission or the court deems appropriate."
SECTION 2. Section 378-5, Hawaii Revised Statutes, is amended to read as follows:
"§378-5 Remedies. (a) The commission may order appropriate affirmative action, including[,] but not limited to[,] hiring, reinstatement, or upgrading of employees, with or without [backpay,] back pay, restoration to membership in any respondent labor organization, or other remedies as provided under chapter 368, which in the judgment of the commission, will effectuate the purpose of this part, including a requirement for reporting on the manner of compliance.
(b) In any civil action brought under this part, if the court finds that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this part, the court may enjoin the respondent from engaging in [such] unlawful discriminatory practice and order [such] affirmative action as may be appropriate, which may include[,] but is not limited to[,] reinstatement, hiring, or upgrading of employees, with or without [backpay,] back pay, or restoration of membership in any respondent labor organization, or any other equitable relief the court deems appropriate. [Backpay] Back pay liability shall not accrue from a date more than two years prior to the filing of the complaint with the commission.
[(c) In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of any nature and reasonable attorney's fees, to be paid by the defendant.]
(c) Compensatory damages awarded under this section shall be exclusive of back pay and interest on back pay.
(d) Compensatory damages shall not be recoverable for an employment practice that is unlawful because of disparate impact. The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed the following for each complainant:
(1) $15,000 for a respondent who has fewer then fifteen employees in each of twenty or more calendar weeks in the current or preceding calendar year;
(2) $50,000 for a respondent who has fifteen or more employees but fewer than one hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year;
(3) $100,000 for a respondent who has one hundred employees or more but fewer than two hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year;
(4) $200,000 for a respondent who has two hundred employees or more but fewer than five hundred employees in each of twenty or more calendar weeks in the current or preceding calendar year; and
(5) $300,000 for a respondent who has five hundred employees or more in each of twenty or more calendar weeks in the current or preceding calendar year.
(e) In any action to enforce this chapter, the commission or a court may allow to the prevailing party, other than the commission or the State, the costs of maintaining the action, including reasonable attorney's fees and expert witness fees. The commission and the State shall be liable for the same costs as a private person. In determining whether or to what extent an award of costs shall be justified, the following factors may be considered:
(1) Whether a party unreasonably protracted legal proceedings;
(2) Whether a complainant's position was substantially justified in fact and existing law or a good faith argument for the extension, modification, or reversal of existing law; and
(3) Whether a party in good faith sought to mitigate damages or exposure."
SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
INTRODUCED BY: |
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