Bill Text: HI HB1489 | 2018 | Regular Session | Amended
Bill Title: Relating To Civil Rights.
Spectrum: Moderate Partisan Bill (Democrat 8-1)
Status: (Passed) 2018-07-06 - Act 110, 07/05/2018 (Gov. Msg. No. 1211). [HB1489 Detail]
Download: Hawaii-2018-HB1489-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1489 |
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TWENTY-NINTH LEGISLATURE, 2017 |
H.D. 1 |
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STATE OF HAWAII |
S.D. 2 |
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A BILL FOR AN ACT
RELATING TO CIVIL RIGHTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) (Title IX), renamed the Patsy Mink Equal Opportunity in Education Act in 2002, triggered a seismic shift in the education landscape by prohibiting discrimination on the basis of sex by any education program or activity receiving federal funds. The legislature also finds that Hawaii is rightfully proud of Patsy Mink's signature legislation, which has given millions of girls and women educational opportunities that were undreamed of before enactment of Title IX, in the classroom and on the playing fields; in research, teaching, and graduate schools; and in employment, medicine, law, and other professions. The legislature recognizes, however, that Patsy Mink's celebrated legacy has not been fully realized, and that the efficacy of Title IX federal protections against sex discrimination in education has been diminished and eroded. For these reasons, the legislature believes it is time to consider and address the need for a corollary to Title IX in state law.
The legislature recognizes that under the federal courts' interpretation of Title IX, a student who is subjected to sexual harassment has no claim for relief under Title IX absent a showing of "deliberate indifference." This is the federal standard applied to the abuse of prisoners, and it is far narrower than the standard applied in sexual harassment cases in an employment setting. In the absence of a state Title IX corollary, a minor student who is the victim of sexual harassment or sexual assault that was perpetrated at school by an adult employee or administrator will have no effective civil rights protection. In contrast, similarly situated teachers, custodians, counselors, office staff, and administrators will be effectively protected under state and federal fair employment laws, specifically, part I of chapter 378, Hawaii Revised Statutes, and Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), respectively. As a result, adult employees are presently protected against sexual harassment in state educational programs, while students, including children, are not.
The legislature is further aware that in 2017, the Trump Administration reversed the federal government's previous interpretation of the prohibition against discrimination based on "sex" that included discrimination based on sexual orientation and gender identity and expression. It also issued an interim rule rescinding its guidance on the investigation of campus sex assaults. These rollbacks in federal Title IX protections highlight the need for a state Title IX corollary to protect the students entrusted to our schools from sex discrimination, including sexual harassment and sexual assault.
Accordingly, the purpose of this Act is to provide for a state corollary to Title IX that prohibits discrimination on the basis of sex, including gender identity or expression, or sexual orientation, in any state educational program or activity, or in any educational program or activity that receives state financial assistance, without regard to whether the educational program or activity also receives federal funds.
It is the intent of the legislature that placement of this new protection in chapter 368, Hawaii Revised Statutes, will provide for enforcement procedures and remedies under that chapter, as well as rulemaking, by the Hawaii civil rights commission.
It is the intent of the legislature that this Act be liberally construed. It is the intent of the legislature that this Act be implemented so as to ensure effective mechanisms for the prevention and remediation of sex discrimination in state-funded educational programs and activities.
The legislature recognizes that certain provisions of this Act differ from the original text of Title IX, and the legislature therefore recognizes that this Act's provisions may be interpreted differently in some respects than certain interpretations of Title IX by federal courts and federal administrative agencies. To the extent that different interpretations may arise, the legislature assumes any difference will be in accord with Hawai‘i's tradition of providing greater protection to civil rights than that afforded by federal law.
The legislature further finds that, based on United States Supreme Court holdings, Title IX does not preempt state laws regulating educational activities unless compliance with state and federal law is a physical impossibility or the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. In enacting Title IX, Congress did not express an explicit intent to preempt other laws on the same subject or create a scheme so comprehensive that Title IX can be said to occupy the field. The legislature nonetheless recognizes that navigating inconsistent state and federal mandates on the same subject matter can present thorny compliance issues for covered entities. Accordingly, it is the legislature's intent that, in exercising its rulemaking authority under this Act, the Hawaii civil rights commission shall thoughtfully consider ways to reduce inconsistencies between state and federal compliance mandates, to coordinate its enforcement activities with the Office of Civil Rights of the United States Department of Education where appropriate, and to otherwise facilitate compliance by covered entities under state and federal regulatory schemes.
SECTION 2. Chapter 368, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§368-
State educational programs and
activities; discrimination prohibited.
(a) No person in the State, on
the basis of sex, including gender identity or expression as defined in section
489-2, or sexual orientation as defined in section 489-2, shall be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under:
(1) Any state
educational program or activity; or
(2) Any educational
program or activity that receives state financial assistance.
(b)
Subsection (a) notwithstanding, a state educational program or activity
may allow sex-specific housing assignments, social club memberships, and
athletic team participation, subject to rules adopted pursuant to chapter 91.
(c) Section 368-17 notwithstanding, relief for
violations of this section shall be limited to equitable remedies, including
individual and structural injunctions, and to reasonable attorneys' fees and
costs of legal action, which may include expert witness and special master
fees.
(d) Nothing in this
section shall be interpreted as preempting or precluding civil legal actions
arising out of similar facts seeking redress for violations of other statutory
or common law duties. The civil legal
actions may seek awards of compensatory and punitive damages. Upon determining that a civil suit alleging
facts similar to the allegations of a complaint filed with the commission by
the suit's plaintiff has been filed, the commission may issue a right to sue
letter and dismiss the case, or may intervene as a party plaintiff.
(e) Section 368-11(c)
notwithstanding, a complaint alleging a violation of this section may be filed
at any time within two years of the date of the alleged unlawful
discrimination. In cases involving
continuing courses of conduct constituting a violation, the two-year period
commences from the date of the last occurrence of the conduct.
(f) As used in this section:
"Commission" means the
Hawaii civil rights commission.
"Educational program or
activity that receives state financial assistance" means any educational
program or activity that receives state financial assistance, in any amount,
for any purpose. The term does not
exclude an educational program or activity that also receives federal funds.
"State educational program or activity" means an educational program or activity of the University of Hawaii, the department of education, and public charter schools."
SECTION 3. Section 368-11, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a)
The commission shall have jurisdiction over the subject of
discriminatory practices made unlawful by part I of chapter 489, chapter 515,
part I of chapter 378, and complaints filed under sections 368-1.5 and
368- of this chapter.
Any individual claiming to be aggrieved by an alleged unlawful
discriminatory practice may file with the commission's executive director a
complaint in writing that shall state the name and address of the person or
party alleged to have committed the unlawful discriminatory practice complained
of, set forth the particulars thereof, and contain other information as may be
required by the commission. The attorney
general, or the commission upon its own initiative may, in like manner, make
and file a complaint."
2.
By amending subsection (c) to read:
"(c)
[No] Except as provided in section 368- (e), no
complaint shall be filed after the expiration of one hundred eighty days after
the date:
(1) Upon
which the alleged unlawful discriminatory practice occurred; or
(2) Of
the last occurrence in a pattern of ongoing discriminatory practice."
SECTION 4. The Hawaii
civil rights commission shall submit a report containing:
(1) The commission's proposed rules to implement this Act;
(2) Any public outreach activities it has performed or plans to perform concerning its duties under this Act; and
(3) Any proposed legislation,
to the legislature no later than twenty days prior to the convening of the regular sessions of 2019 and 2020.
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect on January 1, 2020; provided that:
(1) Section 4 shall take effect on July 1, 2018; and
(2) The Hawai‘i civil rights commission shall have authority on July 1, 2018, to commence and conduct rulemaking activities under chapter 91, Hawaii Revised Statutes, to implement this Act.
Report Title:
Education; Civil Rights; Discrimination; Sex; Sexual Orientation; Gender Identity; Gender Expression
Description:
Prohibits discrimination on the basis of sex, including gender identity or expression, or sexual orientation, in any state educational program or activity, or in any educational program or activity that receives state financial assistance. Requires the Hawaii civil rights commission to report to the legislature. Takes effect on 1/1/2020. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
