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Study of Civil Rights Protection for State or State-Funded Services

Report No.  93-18


Section 368-1.5, Hawaii Revised Statutes, protects only persons with disabilities from discrimination in state and state-funded services.  The Hawaii Civil Rights Commission is responsible for enforcing this law.  The Legislature requested this study to determine whether to expand Section 368-1.5 to protect against discrimination on the basis of race, sex, national origin, or religion (in addition to disability).  In response to the Legislature's request, we reviewed state and federal nondiscrimination laws to assess the adequacy of protections against discrimination in the area of state and state-funded services and conducted a survey and interviews on discrimination complaints.

We found indications of discrimination among clients or potential clients of state and state-funded services based on disability, race, sex, national origin, and religion.  The complaints included allegations of discrimination toward immigrants who have difficulty speaking or understanding English.

We also found that the existing laws do not assure protection for all proposed protected classes in all state-funded services because the laws vary in the programs they cover and the protections they offer.  Furthermore, the efforts of state and state-funded organizations to establish internal recourse vary widely.  Many state organizations and most state-funded organizations lack written policies and procedures on how they handle discrimination.  Complainants need guaranteed avenues of redress, uniformity in enforcement, and simplification of the steps they must take to remedy discriminatory situations.

Recommendations and Response

We recommend that state agencies and private organizations with state-funded programs strengthen their means of resolving discrimination complaints in house by adopting written nondiscrimination policies and discrimination complaint procedures.  We also recommend that the Legislature expand Section 368-1.5, HRS, to include race, sex, national origin, and religion as protected classes.

The Hawaii Civil Rights Commission should work with the Judiciary's Center for Alternative Dispute Resolution to design a plan integrating alternative dispute resolution into the commission's procedures.  This could help reduce the commission's current backlog of cases and alleviate the additional caseload that might result from expanding Section 368-1.5.   The Hawaii Civil Rights Commission responded that it supports our recommendation to expand Section 368-1.5 to include protection against discrimination based on race, sex, national origin, or religion.  It would also like to add sexual orientation as a protected class.  With such an expansion, the commission foresees a doubling of its caseload.  The commission says that (1) additional funding for more staff and administrative costs would be necessary and (2) its jurisdiction should be expanded incrementally over state and state-funded programs and exclude law enforcement programs.

In its response, the commission added two recommendations of its own.  First, it wants the governor to issue an executive order mandating all departments to adopt a uniform policy of nondiscrimination on the basis of race, color, sex, religion, ancestry, disability, or sexual orientation.  Second, it recommends that a governor's committee be established to address the need for bilingual services.

The commission says it is interested in integrating mediation into its procedures to help with the caseload.  The Center for Alternative Dispute Resolution says that it would like to assist the commission in designing an alternative dispute resolution plan.  The center points out, however, that there are time-consuming issues to be resolved such as the form of the dispute resolution process and whether participation will be mandatory or voluntary.  The Center also says that it lacks the resources to administer the process and that funding would be needed to pay for the fees of third-party neutrals and administrative costs.

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