Never mind Hawaii’s so-called hugging culture. One of Hawaii’s most prominent labor and employment attorneys says he has been telling employers for more than a decade they must prohibit any hugging or touching in the workplace.
Jeffrey S. Harris says he cautions employers: Don’t do it. Don’t let your employees hug or touch anyone. And if you see them doing it, tell them to stop.
He says case law suggests that employers can be held liable for sexual harassment claims for such behavior — even a sole instance of unwelcome touching.
Hugging is an issue people have raised in the #MeToo movement and recently here after the sexual harassment complaint filed at the State Ethics Commission by former state Human Services Director Rachael Wong against former House Speaker and current Maui Rep. Joe Souki.
Souki’s attorney Michael Green claims Wong’s complaint alleges Souki gave Wong a hug and goodbye kiss after Wong offered her hand to shake.
Wong will not detail her claim but her supporters say her allegations are more serious than just friendly hugging.
Hawaii isn’t the only place discussing the propriety of hugging — friendly or otherwise. A report in The Washington Post on Sunday was headlined, “Is the era of hugging over? Some people sure hope so.”
Harris is talking about hugging in general and not any current legal case. He has been practicing labor and employment law for 37 years and is a partner in the law firm Torkildson, Katz, Hetherington, Harris and Knorek.
He says many other attorneys in the labor law field are also adamant about cautioning their employer clients to prohibit hugging and touching in their workplaces.
Harris cites the case of Arquero v Hilton Hawaiian, in which the Hawaii Supreme Court ruled that a single unwelcome act of touching is enough to establish a sexual harassment claim under state law.
The claim was brought by Madonna Arquero, a waitress at the Rainbow Lanai at the Hilton Hawaiian Village. Arquero said she was squeezed on the buttocks by male co-worker German Rodas in the restaurant in 1998. Her female supervisor witnessed Arquero push Rodas hand away and heard her tell him to stop. The female supervisor verbally reprimanded Rodas, telling him he would receive a written warning if he did it a second time.
But about a month later Rodas squeezed Arquero on the buttocks again, she said. The female supervisor saw it happen and heard Arquero call Rodas “stupid, rude” and hit him. Rodas was suspended and fired two weeks later.
Arquero sued, contending that Hilton Hawaiian Village was liable because her supervisor has not done enough after the first incident to prevent it from happening again.
First Circuit Court Judge Colleen Hirai ruled in favor of the hotel, contending that Rodas’ actions toward Arquero were “not severe or pervasive” enough to constitute sexual harassment.
But in 2004, state Supreme Court justices unanimously reversed Hirai’s ruling, saying that the unwelcome squeezing of Arquero’s body by Rodas constituted fourth-degree sexual assault.
The court also questioned if the hotel had done enough to stop the harassment, since it didn’t write it up when it first happened and by allowing Rodas to continue to working in the same restaurant as Arquero.
The justices looked at the incident of alleged harassment in isolation rather that dealing with how it affected Arquero’s ability to continue working in the restaurant.
Their ruling in her favor raised stricter standards than previous federal court rulings, which contend that employer liability for sexual harassment depended on conduct that is severe and frequent enough to create a hostile work environment.
After the Supreme Court ruling, Scot S. Brower, the Honolulu attorney who represented Arquero, said in an interview the decision gave broader protections to Hawaii employees than the protection afforded by federal law.
Harris also cites case Lales v. Wholesale Motors, dba JN Automotive Group, in which the state Supreme Court held that employers are strictly liable for the conduct of their agents or supervisors when it comes to the harassment of another employee.
He says that in addition, at least one federal judge has suggested anyone may be liable for failing to investigate and remedy complaints when there is conduct alleged to be sexual harassment.
Harris says when clients bring up the difficulty of enforcing no-hugging or no-touching rules in Hawaii with its cultural proclivity for hugging, he tells them, “There are sound legal grounds for prohibiting any hugging or touching in Hawaii workplaces. I don’t care what the sentiment is. Don’t allow it in the workplace.”
Not all employers fully embrace Harris’s recommendation. Honolulu YMCA President and CEO Michael Broderick says,“Although I recognize the value of our attorney Jeffrey Harris’s advice, we are looking at all options including those that are consistent with the culture of Hawaii. I mean a warm and caring culture where hugging is a common practice.”
As head of the Honolulu YMCA, Broderick oversees 1,400 employees in an organization that serves more than 100,000 members and program participants. Broderick is a former Family Court judge and former administrative director of the Hawaii State Courts system.
Veteran Hawaii labor and employment attorney Perry Confalone says he understands why some attorneys are advising clients to impose a strict no hugging/touching policy. Confalone says he has defended employers against sexual harassment claims and knows how difficult such cases can be.
But he says, “I would not advise an employer to impose a policy that says under no circumstances should employees hug or touch others. A flat-out prohibition against hugging and touching is difficult given this culture in which people do hug each other.”
Confalone says, “In the real world, the watchword should be common sense: making sure there is appropriate office training to insure everyone understands what constitutes unwelcome behavior in the workplace. That’s where the rubber meets the road.”
Confalone, who heads his own law firm, has been a labor and employment specialist in Hawaii for more than 30 years.
He says he has not seen any increase in sexual harassment claims in Hawaii since the launch of the #MeToo movement,
Harris also has not seen an increase. He sees the #MeToo movement as helpful in spurring workplaces to be more sensitive to the rights of their employees.
William Hoshijo, executive director of the Hawaii State Civil Rights Commission, also says sexual harassment claims have not increased since #MeToo, but he adds, “We are watching. We are anticipating more claims but we have not seen the increase yet.”
The state statute of limitations for sexual harassment claims is 180 days. The federal statute is 300 days. In addition, under state law a plaintiff can bring a civil suit within a two-year tort statute of limitations.