Revised Ordinances, Official Web Site for The City and County of Honolulu

(a) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual display of a sexual nature directed by an officer or employee to a second officer or employee when:

(1) Submission to the advances, requests, or conduct is a term or condition of the second officer's or employee's employment;

(2) Submission to or rejection of the advances, requests, or conduct is used as the basis for employment decisions relating to the second officer or employee; or

(3) The advances, requests, conduct, or visual display has the purpose or effect of:

(A) Substantially interfering with the second officer's or employee's work performance; or

(B) Creating an intimidating, hostile, or offensive working environment for the second officer or employee;

(b) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual display of a sexual nature directed by an officer or employee to an individual under consideration for city employment when:

(1) Submission to the advances, requests, or conduct is used as a term or condition for the employment of the individual;

(2) Submission to or rejection of the advances, requests, or conduct is used as the basis for a decision to employ or reject the individual; or

(3) The advances, requests, conduct, or visual display has the purpose or effect of:

(A) Substantially interfering with the individual's ability to display qualifications for city employment; or

(B) Creating an intimidating, hostile, or offensive environment in which the individual seeks city employment; and

(c) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual display of a sexual nature directed by an officer or employee to an individual engaged in business or other activity with the city when:

(1) Submission to the advances, requests, or conduct is a term or condition of the individual's engagement in business or other activity with the city;

(2) Submission to or rejection of the advances, requests, or conduct is used as the basis for a decision on the individual's engagement in business or other activity with the city; or

(3) The advances, requests, conduct, or visual display has the purpose or effect of:

(A) Substantially interfering with the individual's engagement in business or other activity with the city; or

(B) Creating an intimidating, hostile, or offensive environment in which the individual engages in business or other activity with the city.

(Added by Ord. 93-84)

Sec. 1-17.2 Other definitions.

For the purpose of this article:
"Council office" means the office of the city clerk and office of council services.

"Department" means each executive department of the city. For the purpose of this article, the office of the mayor, office of the managing director, office of information and complaint, civil defense agency, and municipal reference and records center shall each be deemed a "department."

"Employee" means the same as defined under Section 1-4.1.

"Individual engaged in business or other activity with the city" means an individual who:

(1) Is performing services as an independent contractor with the city;

(2) Is seeking an independent contract with the city;

(3) Is seeking to sell or has sold products or services to the city;

(4) Is applying for or has received a permit or other ministerial or discretionary approval from the city;

(5) Is appealing or has appealed a decision by the city to a city department, board, officer, or employee;

(6) Is applying for or participating in a city program available to the general public or a class of the general public;

(7) Is engaged in lobbying, as defined under Section 4-1.2;

(8) Is engaged in influencing the city's policy making process, as defined under Section 4-1.2, but is not registered as a lobbyist; or

(9) Is working as a journalist for a news medium.

"Individual under consideration for city employment" means an individual who has applied for and is being considered for employment with the city.

"Offender" means an officer or employee who has engaged in sexual harassment.

"Officer" means the same as defined under Section 1-4.1.

"Victim" means an officer, employee, or individual who has been subjected to sexual harassment. (Added by Ord. 93-84)

Sec. 1-17.3 Prohibition of sexual harassment.

(a) An officer or employee shall not engage in the sexual harassment of another officer or employee.

(b) An officer or employee shall not engage in the sexual harassment of an individual who is under consideration for city employment.

(c) An officer or employee shall not engage in the sexual harassment of an individual engaged in business or other activity with the city.

(d) A management or supervisory officer or employee shall not knowingly permit a subordinate officer or employee to engage in sexual harassment prohibited under this section.
(Added by Ord. 93-84)

Sec. 1-17.4 Complaint, investigation, and resolution procedures for departments.

(a) Each department shall comply with the procedures of this section, which relate to the receipt, investigation, and resolution of complaints of sexual harassment.

With respect to an alleged victim or alleged offender who is an officer or employee covered by a collective bargaining agreement, the procedures of this section shall be additional to any grievance or other procedures in the agreement

Each department shall inform its officers and employees of the procedures of this section.

(b)               Each department shall allow an alleged victim to make an informal or formal complaint of sexual harassment as follows:

(1)    If the alleged victim is an officer or employee, the making of a complaint to the:
        (A)    Alleged victim's immediate supervisor or, if the immediate supervisor is the alleged offender, to the next higher supervisor;
        (B)    Alleged victim's department director;
        (C)    Alleged victim's departmental equal employment opportunity officer; or
        (D)    City's equal employment opportunity officer;
        or

        (2)    If the alleged victim is an individual under consideration for city employment or an individual engaged in business or other activity with the city, the making of a complaint to the:
                         (A)    Alleged offender's immediate supervisor;
                         (B)    Alleged offender's department director;
                         (C)    Alleged offender's departmental equal employment opportunity officer; or
                         (D)    City's equal employment opportunity officer.

(c) Each department shall allow an alleged victim to make an informal complaint verbally or in writing. When making the complaint, the alleged victim shall name the alleged offender and state the nature and circumstance of the alleged sexual harassment.

The officer or employee receiving the complaint and/or departmental equal employment opportunity officer shall promptly investigate the complaint. The investigation shall be conducted in an unbiased, fair, and discreet manner with appropriate safeguards to maintain confidentiality and protection from embarrassment. During the investigation, the investigating officer or employee shall allow the alleged offender to respond to the complaint.

The investigation shall be completed within 10 working days after the making of the complaint, unless additional time for completion is considered justified and approved by the city's equal employment opportunity officer. If the complaint is deemed true, the offender shall be notified of the sexual harassment and disciplined by a warning not to sexually harass or retaliate against the victim and, if deemed warranted, other disciplinary action imposed in accordance with Section 1-17.7. If the complaint is deemed false or unsupported by the evidence, the complaint shall be dismissed. A written report shall be prepared on each informal complaint and the findings and results of the investigation.

(d)         Each department shall allow an alleged victim to make a formal complaint:
    (1)    Without first making an informal complaint; or
    (2)    While an investigation or resolution of an informal complaint is pending if the alleged victim desires to make the formal complaint.

The complaint shall be in writing, name the alleged offender, and state the nature and circumstance of the alleged sexual harassment.

A team of officers and employees shall promptly investigate the complaint. The team shall be selected by the alleged offender's department director or, if the director is the alleged offender, by the city's equal employment opportunity officer. The team shall include at least one member of each gender. At least one departmental equal employment opportunity officer shall be on the team. Selected officers and employees may be from any department.

The investigation shall be conducted in an unbiased, fair, and discreet manner with appropriate safeguards to maintain confidentiality and protection from embarrassment. During the investigation, the team shall allow the alleged offender to respond to the complaint.

The investigation shall be completed within 10 working days after the filing of the complaint, unless additional time for completion is considered justified and approved by the city's equal employment opportunity officer. If the complaint is deemed true, the offender shall be notified in writing of the sexual harassment and disciplined by a warning not to sexually harass or retaliate against the victim and, if deemed warranted, other disciplinary action imposed in accordance with Section 1-17.7. If the complaint is deemed false or unsupported by the evidence, the complaint shall be dismissed. A written report shall be prepared on each formal complaint and the findings and results of the investigation.

(e) Each department shall maintain the confidentiality of the alleged victim and alleged offender during an investigation of an informal or formal complaint; provided that the names of the alleged victim and alleged offender may be revealed to the following:

    (1)    Each other;
    (2)    Any officer or employee investigating a complaint;
    (3)    The alleged victim's or alleged offender's department director;
    (4)    The city's equal employment opportunity officer;
    (5)    Any witness to the alleged sexual harassment under investigation; and
    (6)    Any other person to whom revealing the names is necessary to conduct the investigation.

Each department also shall maintain the confidentiality of the written report on a complaint and investigation. Inspection of the report shall be permitted only by the following: the parties to the complaint; officers or employees involved in the management, supervision, or disciplining of the parties to the complaint; the city's equal employment opportunity officer; and other persons authorized by law or ordinance.

(f) Each department may establish procedures and provisions additional to, but consistent with, the procedures of this section. The additional procedures and provisions may differ among the departments, unless the mayor determines that uniform procedures and provisions are desirable. If so determined, the additional procedures and provisions shall be uniform among all departments.

The additional procedures and provisions available to an alleged victim who is an officer or employee need not be adopted by rules under HRS Chapter 91. The procedures and provisions shall be established in the same manner as other regulations concerning only the internal management of an executive agency and not affecting private rights of or procedures available to the public.

The additional procedures and provisions available to an alleged victim who is not an officer or employee shall be adopted by rules in accordance with HRS Chapter 91. If directed by the mayor, one department may adopt rules establishing uniform procedures and provisions on behalf of and applicable to all other departments.
(Added by Ord. 93-84)

Sec. 1-17.5 Complaint, investigation, and resolution procedures for council and council offices.

(a) The council and each council office shall comply with the procedures of this section, which relate to the receipt, investigation, and resolution of complaints of sexual harassment.

With respect to an alleged victim or alleged offender who is an officer or employee covered by a collective bargaining agreement, the procedures of this section shall be additional to any grievance or other procedures in the agreement.

The council and each council office shall inform its officers and employees of the procedures of this section.

(b) The council and each council office shall allow an alleged victim to make an informal or formal complaint of sexual harassment as follows:

    (1)    If the alleged victim is an officer or employee, the making of a complaint to the:
        (A)    Alleged victim's immediate supervisor or, if the immediate supervisor is the alleged offender, to the next higher supervisor;
        (B)    Councilmember employing the alleged victim;
        (C)    Head or equal employment opportunity officer of the council office employing the alleged victim;
        (D)    Council chair; or
        (E)    City's equal employment opportunity officer;
        or

     (2)    If the alleged victim is an individual under consideration for city employment or an individual engaged in business or other activity with the city, the making of a complaint to the:
        (A)    Alleged offender's immediate supervisor;
        (B)    Councilmember employing the alleged offender;
        (C)    Head or equal employment opportunity officer of the council office employing the alleged offender;
        (D)    Council chair; or
        (E)    City's equal employment opportunity officer.

(c) The council and each council office shall allow an alleged victim to make an informal complaint verbally or in writing. When making the complaint, the alleged victim shall name the alleged offender and state the nature and circumstance of the alleged sexual harassment.

The officer or employee receiving the complaint and/or council office equal employment opportunity officer shall promptly investigate the complaint. The investigation shall be conducted in an unbiased, fair, and discreet manner with appropriate safeguards to maintain confidentiality and protection from embarrassment. During the investigation, the investigating officer or employee shall allow the alleged offender to respond to the complaint.

The investigation shall be completed within 10 working days after the making of the complaint, unless additional time for completion is considered justified and approved by the city's equal employment opportunity officer. If the complaint is deemed true, the offender shall be notified of the sexual harassment and disciplined by a warning not to sexually harass or retaliate against the victim and, if deemed warranted, other disciplinary action imposed in accordance with Section 1-17.7. If the complaint is deemed false or unsupported by the evidence, the complaint shall be dismissed. A written report shall be prepared on each informal complaint and the findings and results of the investigation.

(d)   The council and each council office shall allow an alleged victim to make a formal complaint:
    (1)    Without first making an informal complaint; or
    (2)    While an investigation or resolution of an informal complaint is pending if the alleged victim desires to make the formal complaint.

The complaint shall be in writing, name the alleged offender, and state the nature and circumstance of the alleged sexual harassment.

A team of officers and employees shall promptly investigate the complaint. The team shall be selected by the council chair if the chair received the complaint. Otherwise, the team shall be selected by the officer employing the alleged offender or, if that officer is the alleged offender, by the city's equal employment opportunity officer. The team shall include at least one member of each gender. At least one council office or departmental equal employment opportunity officer shall be on the team. Selected officers and employees may be from the council, any council office, or any department.

The investigation shall be conducted in an unbiased, fair, and discreet manner with appropriate safeguards to maintain confidentiality and protection from embarrassment. During the investigation, the team shall allow the alleged offender to respond to the complaint.

The investigation shall be completed within 10 working days after the filing of the complaint, unless additional time for completion is considered justified and approved by the city's equal employment opportunity officer. If the complaint is deemed true, the offender shall be notified in writing of the sexual harassment and disciplined by a warning not to sexually harass or retaliate against the victim and, if deemed warranted, other disciplinary action imposed in accordance with Section 1-17.7. If the complaint is deemed false or unsupported by the evidence, the complaint shall be dismissed. A written report shall be prepared on each formal complaint and the findings and results of the investigation.

(e)    The council and each council office shall maintain the confidentiality of the alleged victim and alleged offender during an investigation of an informal or formal complaint; provided that the names of the alleged victim and alleged offender may be revealed to the following:
    (1)    Each other;
    (2)    Any officer or employee investigating a complaint;
    (3)    If the alleged victim or alleged offender is employed by a councilmember, the council chair and that council member;
    (4)    If the alleged victim or alleged offender is employed by a council office, the council chair and head of that council office;
    (5)    The city's equal employment opportunity officer;
    (6)    Any witness to the alleged sexual harassment under investigation; and
    (7)    Any other person to whom revealing the names is necessary to conduct the investigation.

The council and each council office also shall maintain the confidentiality of the written report on a complaint and investigation. Inspection of the report shall be permitted only by the following: the parties to the complaint; officers or employees involved in the management, supervision, or disciplining of the parties to the complaint; the city's equal employment opportunity officer; and other persons authorized by law or ordinance.

(f) The council and each council office may establish procedures and provisions additional to, but consistent with, the procedures of this section. The additional procedures and provisions shall be established separately by the council and each council office, unless the council chair determines that uniform procedures and provisions are desirable. If so determined, the additional procedures and provisions shall be uniform among the council and each council office.

Adoption of the additional procedures and provisions by rules under HRS Chapter 91 shall not be required.
(Added by Ord. 93-84)

Sec. 1-17.6 Use of "reasonable person of the same gender standard."

(a) In determining whether an alleged conduct constitutes sexual harassment, an officer, employee, or team investigating a complaint of sexual harassment pursuant to Section 1-17.4 or Section 1-17.5 shall use the "reasonable person of the same gender standard." Under the standard, sexual harassment shall be deemed to have occurred if the alleged offender's conduct would be considered sexual harassment from the perspective of a reasonable person of the same gender as the alleged victim. If the alleged victim is a woman, the "reasonable person of the same gender standard" shall be equivalent to and may be called the "reasonable woman standard."

(b) The investigating officer, employee, or team shall look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advance, sexual favor request, or visual display and the context in which the alleged conduct occurred.
(Added by Ord. 93-84)

Sec. 1-17.7 Disciplinary action.

(a) An officer or employee who is found, after an informal complaint and investigation, to be an offender shall be disciplined by the warning required under Section 1-17.4(c) or Section 1-17.5(c) and may be otherwise appropriately disciplined if deemed warranted.

An officer or employee who is found, after a formal complaint and investigation, to be an offender shall be appropriately disciplined.

(b)    Any disciplinary action, additional to the warning required under Section 1-17.4(c), (d) or Section 1-17.5(c), (d), shall be determined:
    (1)    In accordance with just cause standards; and
    (2)    On a case-by-case basis, with consideration of the severity of the sexual harassment and, if any, other incidents of sexual harassment by the offender.

(c)    Disciplinary action against an offender may include, but is not limited to, one or more of the following:
    (1)    Written reprimand;
    (2)    Suspension without pay;
    (3)    Disciplinary demotion; or
    (4)    Dismissal from employment.

A particular disciplinary action shall not be taken against an offender if not permitted by law, ordinance, or collective bargaining agreement relevant to that particular offender.

(d)    For an offender who is an elected officer of the executive branch, the appropriate disciplinary action shall be determined by the investigating officer or team.

(e)    For an offender who is a department director, the appropriate disciplinary action shall be determined by the director's appointing authority. This subsection shall not apply to the prosecuting attorney, who shall be subject to subsection (d).

(f)    For an offender who is an officer or employee of a department, but not its director, the appropriate disciplinary action shall be determined by the department director.

(g)    For an offender who is a councilmember or head of a council office, the appropriate disciplinary action shall be determined by the council.

(h)    For an offender who is an officer or employee employed by a councilmember or council office, the appropriate disciplinary action shall be determined by the councilmember or head of the office employing the offender.

(i)    All disciplinary actions, prior to implementation, shall be given final review and approval by the city's equal employment opportunity officer.
(Added by Ord. 93-84)

Sec. 1-17.8 Retention of written report on complaint and investigation.

(a) This section applies to each written report on an informal or formal complaint and investigation required under Section 1-17.4 and Section 1-17.5.

(b) The written report on a complaint against an officer or employee of an executive department shall be retained by that department.

The written report on a complaint against a councilmember or employee of a councilmember shall be retained by the council.

The written report on a complaint against an officer or employee of a council office shall be retained by that office.

(c) The written report on a complaint deemed true shall be retained for at least five years after the offender terminates service as a city officer or employee. After the five-year period, the report may be discarded.

The written report on a dismissed complaint shall be retained for a two-year period, commencing from the date the report is completed. Upon termination of the period, the report shall be expunged, unless its retention is requested by the officer or employee, the complaint against whom was dismissed. When the officer or employee requests retention, the report shall be retained at least until the officer or employee terminates service with the city. After the termination of service, the report may be discarded.

This subsection shall be subordinate to collective bargaining agreement provisions concerning the retention and expungement of information on an officer or employee covered by the agreement. Accordingly, the collective bargaining agreement provisions, rather than this subsection, shall apply with respect to the retention and expungement of the written report on a complaint against the officer or employee.
(Added by Ord. 93-84)

Sec. 1-17.9 Prohibition of retaliation for complaint.

(a)    An officer or employee shall not retaliate against another officer, employee, or individual who has complained of sexual harassment, conducted an investigation of a complaint, or acted as a witness during an investigation of a complaint.

(b)    An officer or employee who retaliates against another officer, employee, or individual in violation of subsection (a) shall be appropriately disciplined. The disciplinary action may consist of:
    (1)    Any of the disciplinary actions listed under Section 1-17.7; or
    (2)    Any other disciplinary action authorized by law, ordinance, or rule.
    If the officer or employee is covered by a collective bargaining agreement, the disciplinary action against the officer or employee shall not be contrary to the agreement.

(c)    Disciplinary action against an officer, employee, or individual making a malicious false complaint shall not be considered retaliation prohibited under this section.
(Added by Ord. 93-84)

Sec. 1-17.10    Malicious false complaint.
     (a)    An officer, employee, or individual shall not make a malicious false complaint of sexual harassment.

     (b)    An officer or employee who has made a malicious false complaint shall be appropriately disciplined or sanctioned in accordance with law, ordinance, or rule. The disciplinary action may consist of:
           (1)    Any of the disciplinary actions listed under Section 1-17.7; or
            (2)    Any other disciplinary action authorized by law, ordinance, or rule.

     (c)    An individual, other than an officer or employee, who has made a malicious false complaint shall be subject to appropriate sanctions authorized by law, ordinance, or rule. The sanctions may include the termination of the individual's business or other activity with the city or disqualification of the individual from participating in any business or other activity with the city.
(Added by Ord. 93-84)

Sec. 1-17.11 Training program for equal employment opportunity officers and management or supervisory officers and employees.

(a)    The following persons shall complete a training program on sexual harassment: the city's equal employment opportunity officer, each council office equal employment opportunity officer, each departmental equal employment opportunity officer, and each management or supervisory officer and employee. The program shall provide each equal employment opportunity officer and each management or supervisory officer and employee with training to properly:
    (1)    Identify and investigate sexual harassment;
    (2)    Interact with an alleged victim, alleged offender, and witness during an investigation; and
    (3)    Apply and interpret this article and other pertinent laws on sexual harassment.

(b) The training program shall be formulated and provided by the department of personnel.
(Added by Ord. 93-84)

Sec. 1-17.12 Sexual harassment policy training for each officer and employee.

(a)    Each officer and employee shall receive training of the highest standards on the sexual harassment policy at least once every two years in accordance with this section.
    (1)    An officer or employee who enters city employment after July 1, 1997 shall receive the training during the orientation provided upon entering employment.
    (2)    An officer who enters city service, other than employment, after July 1, 1997 shall receive the training within the one-month period following entrance into service.
    (3)    An officer or employee who is in city employment or service on July 1, 1997 shall receive the training within the two-year period following that date.
    (4)    For the duration of city employment or service after the training described in subdivision (1), (2), or (3), an officer or employee shall again receive the training at least once within each two-year period following the immediate previous training.

(b)    The department of personnel shall be responsible for scheduling and enrolling an officer or employee for the training on the sexual harassment policy. In doing so, the department of personnel shall consult with the officer's or employee's appointing authority to set a training date and time which will cause the least possible disruption to the officer's or employee's work, service, or department or office of employment. After the department of personnel enrolls an officer or employee for training, the officer's or employee's appointing authority shall require the officer or employee to attend the training on the scheduled date and time. The department may excuse an enrolled officer or employee from attending for legitimate reason, but shall again enroll the excused officer or employee for training on another date and time in accordance with this section.

(c) The department of personnel shall be responsible for providing the training on the sexual harassment policy to officers and employees. The training shall be designed to make officers and employees aware of the policy, actions which constitute sexual harassment, and impacts of violating the policy. For management or supervisory officers or employees, the training required under this section shall be integrated with that required under Section 1-17.11.
(Added by Ord. 93-84; Am. Ord. 97-25)

Sec. 1-17.13 Nonexclusiveness of provisions of article.

     (a)    The complaint, investigation, resolution, and disciplinary provisions of this article shall not be exclusive. This article shall not be construed as preventing:
        (1)    An officer, employee, or individual from filing a complaint of sexual harassment with any other government agency authorized to receive the complaint;
        (2)    An officer, employee, or individual from filing a civil action in court based on sexual harassment; or
        (3)    An officer or employee covered by a collective bargaining agreement from filing a grievance based on sexual harassment in accordance with the agreement.

(b) Nor shall an officer, employee, or individual be required to exhaust the procedures and remedies of this article prior to filing a complaint with any other government agency, grievance under a collective bargaining agreement, or civil action in court.
(Added by Ord. 93-84)

Last Reviewed: Monday, July 18, 2011