Two legislative bills, House Bill 819 and Senate Bill 1012, have crossed over the bicameral divide. One addresses bullying of children and the other, harassment of employees. If you skim each bill, you might assume they are written to have the similar effect of reducing discrimination and increasing civility. You would be wrong.
HB819, “relating to bullying,” would protect youth from being bullied by holding schools, state and county agencies and other programs that receive state or county funds, accountable for enforcing anti-bullying policies and procedures.
However, SB1012, “relating to employment,” would protect employers from being held accountable when they do not effectively enforce anti-harassment laws in the workplace — including laws prohibiting sexual harassment.
A bill currently before the Legislature would do more to ban bullying of children, but a separate measure would paradoxically lessen the penalties for harassment in the workplace.
Diego Grez via Wikimedia
The anti-bullying bill made it through four committee referrals so far with only one vote against it. Rep. Bob McDermott has entertained a very public fixation with gays and anuses since his return to office so his knee-jerk opposition was predictable.
The bill prohibits bullying based on many pertinent classifications: race, color, religion, ancestry, sex including gender identity or expression, sexual orientation, disability and “any other distinguishing characteristic.”
However, McDermott is so consumed with his personal crusade that he has overlooked the victims of bullying who may live in his district. Surely some of his constituents were bullied when they were children or have kids who are being bullied today. There must be families in Ewa, Ewa Beach, Ewa Gentry or Iroquois Point that would benefit from a bullying-prevention bill.
Even Sam Slom, the Senate’s lone Republican, voted to pass the anti-bullying bill out of the Education Committee. Perhaps Slom appreciates the burden that is placed on businesses when young bullies go unchecked and join the workforce as adult harassers.
There is another impact when our society informally sanctions bullying by turning a blind eye — young people begin to normalize the trauma they experience and witness. They become disempowered from speaking out against it when it happens to themselves or others. This is important to remember when we consider how many young people are part of Hawaii’s workforce.
Under the Hawaii Child Labor Law, a child labor certificate or “work permit” is required for working minors until they reach 18 years of age. This certification process allows the state to track exactly how many young people between the ages of 14 and17 are employed. In 2014, the state issued work permits to 10,298 young people.
If SB1012, the employer-protection bill, is enacted, it would allow employers to shuck responsibility to victims of sexual harassment in the workplace if the victims “unreasonably failed to avoid harm.” The bill legitimizes this type of victim-blaming as an “affirmative defense.”
‘Failed to Avoid Harm’ As Euphemism for ‘She Asked For It’
This affirmative defense would neutralize the employer’s responsibility to effectively screen and train supervisors to prevent harassment in the workplace. The employer would only have to show that he/she went through the motions, but failed with no consequence because it was the victim’s responsibility to “avoid harm.”
In our capitalist democracy, or corporatocracy, businesses and other employers correct wrongs in the workplace only when there is an economic motivation to do so. For instance, if a business treats its employees badly, there may be a public boycott of that business that would reduce revenue, and thus the business may decide to treat employees more fairly.
Since the 2008 recession, the HCRC sustained a reduction in its enforcement staff of nearly 50 percent that has still not been fully restored. Meanwhile, the state has expanded civil rights laws and the responsibilities of the HCRC. The result of the staffing contraction paired with the ideological expansion is a huge backlog of complaints.
When the HCRC was created, the Legislature expected that most claims would be resolved within six months. But today there is a two-year back log on complaints that merit investigation; some of the most egregious cases taking more than four years to be concluded.
The last option is to find an attorney willing to represent the victim on contingency, meaning the attorney could only cover her/his own operating expenses if there is a settlement or court award. If this employer-protection bill passes, attorneys who were once willing to invest their own resources up front would not be able to afford to advocate for a victim of unlawful workplace harassment.
With all avenues of enforcement blocked, employers would have no incentive to effectively prevent harassment in their workplaces.
Anti-bullying and civil rights laws are enacted to protect our most vulnerable victims and targets from discrimination. As Hawaii moves forward with anti-bullying efforts to protect our children, we should not move backward on anti-harassment protections for workers.
And the 10,298 young people who are already in Hawaii’s labor force should not be expected to protect themselves from sexual harassment at work. The responsibility of employers to effectively screen and train their supervisors to prevent workplace harassment must remain intact.
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Kim Coco Iwamoto was elected to the Hawaii Board of Education in 2006 and served until 2011. She also served on the Hawaii Teachers Standards Board from 2009 to 2011 and the Career & Technical Education Coordinating Advisory Council from 2007 to 2011. She was appointed to a four-year term on the Hawaii Civil Rights Commission in 2012.