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The Hawaii House is considering a bill that aims to make it easier for victims of sexual harassment to speak publicly about their experiences. But some critics say the bill doesn’t go far enough.
House Bill 488 would prohibit employers from requiring employees to sign nondisclosure agreements that prevent them from disclosing work-related sexual misconduct. The measure is scheduled for a hearing Tuesday before the House Judiciary Committee.
Rep. Amy Perruso, who represents Wahiawa, Whitmore Village and Launani Valley, introduced the bill in part because of the #MeToo movement and last year’s sexual misconduct investigation involving former House Speaker Joseph Souki.
Perruso says she also personally experienced sexual harassment while working as a public school teacher. She believes the measure would supersede the House’s own new sexual harassment rules that require complainants to stay silent about their experiences even after the conclusion of an investigation.
House Judiciary Chair Rep. Chris Lee
“In my view it’s not our responsibility to protect members who have broken the law or have engaged in harassment,” Perruso says. “I’m not interested in us creating a closed shop where we are protecting perpetrators.”
But despite its intent, observers say there’s a big loophole in the bill: an exception for confidential settlements between an employee and employer.
Local attorney Elizabeth Jubin Fujiwara has worked on sexual harassment cases since 1986 and says her clients have rarely signed non-disclosure agreements when they’re hired but nearly always must agree to confidentiality to settle their cases. Many of her clients suffer from post-traumatic stress disorder and Fujiwara says confidentiality requirements make a bad situation worse.
“A lot of their lives are basically ruined from going through the experience. For the women who even can find an attorney and go through the process, it’s still difficult,” she said. “The fact that they can’t tell anybody except their husband is just perpetuating what we’re fighting against.”
Fujiwara says she’s currently working on two separate sexual harassment cases involving the same perpetrator. Confidentiality provisions can sometimes even prevent a victim from confiding in a therapist.
She plans to testify Tuesday and recommend that the bill be amended to instead exclude non-disclosure agreements requested by victims of sexual misconduct.
Sen. Laura Thielen, who introduced the Senate companion of HB 488, Senate Bill 1041, says Fujiwara’s proposed amendment is worth discussing.
“It still is going to have the door open where pressure may be put on the person (to agree to confidentiality) but it certainly would give them better negotiating ability if it were worded that way,” she said. SB 1041 already passed two committees in the Senate and is headed for a full floor vote next week.
Thielen said that the House and Senate proposals — which are part of the Women’s Legislative Caucus 2019 package — are intended to “elevate the issue to try and come up with the best solution possible. The main thing that we would like to see come out of this session was that we don’t have employment policies that are shielding repeat offenders.”
Bill Hoshijo, director of the Hawaii Civil Rights Commission, says that the commission supports the intent of the bill but his testimony also highlighted the loophole.
“Confidential disposition or resolution of sexual harassment claims can result in repeat offenses,” he said.
That’s why reform is important: “How many decades has it been that we’ve had sexual harassment laws and here we are and it’s still an issue?”
Perruso said Monday she understands the concerns and planned to ask Judiciary chairman Rep. Chris Lee to amend the bill to delete the exception for confidential settlements.
Lee said Monday he hadn’t heard yet about concerns regarding the bill but planned to review testimony in advance of Tuesday’s hearing.
“The intent is to move forward with changes to the law that would ensure more protections for victims and prevent convicted perpetrators from remaining in position of influence that would allow them to commit these crimes again,” he said.
Daphne Barbie Wooten, an attorney who has worked on sexual misconduct cases in Hawaii since 1981 and previously served as a Hawaii Civil Rights Commission board member, says many of her clients want confidentiality because they fear retaliation.
“This is a small island,” she says. “If their names are public it would be a real easy job for a future employer to look them up.”
Fujiwara agrees but adds it’s important for workers to have a choice regarding confidentiality and HB 488, while well-intended, falls short.
“It’s a good start but it needs to go further,” she says.
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