Haw. Rev. Stat. § 378-2

Current through Act 7 of the 2024 Legislative Session

Section 378-2 - Discriminatory practices made unlawful; offenses Defined

(a) It shall be an unlawful discriminatory practice:

(1) Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:

(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

(3) For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

(5) For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

(7) For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast;

(8) For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2); or

(9) For any employer to discriminate against any individual employed as a domestic, in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or reproductive health decision.

(b) For purposes of subsection (a)(1):

(1) An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

(A) Certified or exemplified restraining orders, injunctions against harassment, and documents from criminal cases;

(B) Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or

(C) Documentation from a medical professional, mental health care provider, attorney, advocate, social worker, or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence; and

(2) An employer may verify an employee's status as a domestic or sexual violence victim not more than once every six months following the date the employer:

(A) Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

(B) Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

(C) Received verification that the employee is a domestic or sexual violence victim;

provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer may not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

HRS § 378-2

Amended by L 2020, c 19,§ 6, eff. 1/1/2021.

Amended by L 2019, c 178,§ 2, eff. 7/2/2019.

Amended by L 2013, c 248,§ 2, eff. 7/1/2013.

Amended by L 2011, c 206, § 2, eff. 1/1/2012.

Amended by L 2011, c 34, § 4, eff. 5/2/2011.

L 1981, c 94, pt of §2; am L 1985, c 177, §1; am L 1986, c 223, §3; am L 1991, c 2, §3; am L 1992, c 33, §5; am L 1994, c 88, §1; am L 1999, c 172, §3; am L 2009, c 1, §2 .

L 1999, c 172, §5 provides:

"SECTION 5. Nothing in this Act [amending § 378-2 and enacting § 378-10 ] prohibits employers from establishing internal rules and guidelines for employees who may wish to breastfeed or express breastmilk in the workplace."

Law Journals and Reviews

Canadian Pacific Cases: Kinoshita & Nakashima: What Really Happened to the Employer? 22 HBJ 75.

Two Growing Procedural Defenses in Common Law Wrongful Discharge Cases--Preemption and Res Judicata. 11 UH L. Rev. 143.

The Protection of Individual Rights Under Hawaii's Constitution. 14 UH L. Rev. 311.

Privacy and Genetics: Protecting Genetic Test Results in Hawaii. 25 UH L. Rev. 449.

Viability of the Continuing Violation Theory in Hawaii Employment Discrimination Law in the Aftermath of Ledbetter. 30 UH L. Rev. 423.

Not violated where employer discharged employees not merely because of their drug-related arrests but because of perceived harm to employer's reputation and business contracts.803 F.2d 471. Monocular pilot applicant's disability discrimination claim and retaliation claim not preempted by Airline Deregulation Act of 1978; pilot applicant's success or failure on the discrimination claim had no bearing on pilot applicant's retaliation claim.128 F.3d 1301. Not unlawful for employer to discharge wife, who along with husband, violated employer's policy by forming own company while still working for employer. 558 F. Supp. 1229. Plaintiff alleged that employer contravened letter and purpose of section. 737 F. Supp. 1104. Purpose is to protect claimants under workers' compensation law. 749 F. Supp. 1023. Because this section and § 378-62 did not contain limitation periods, court invoked State's general personal injury statute of limitations, § 657-7; plaintiff's state law claims barred where neither the collective bargaining proceedings nor the equal employment opportunity commission proceedings tolled the statute of limitations. 874 F. Supp. 1095. Plaintiff brought forth evidence of a continuing series of conduct which affected plaintiff and plaintiff's work environment; plaintiff's sexual harassment claims may proceed using the evidence, even though much of it predated limitations period; plaintiff may not rely on other proffered evidence because to extent those actions raised claims, statute of limitations had passed. 125 F. Supp. 2d 1224. Defendant could not be liable in defendant's individual capacity under paragraph (1)(A). 159 F. Supp. 2d 1211. Plaintiff with diabetes was not substantially limited in any major life activity and, therefore, was not disabled under this section or the ADA. 161 F. Supp. 2d 1135. Plaintiff asserted discrimination claims against plaintiff's supervisor and employer, and the alleged parent company of the employer, pursuant to chapter 378 and federal law. Defendants' motion for partial dismissal or alternatively, for partial summary judgment granted in part (e.g., claims based on national origin and aiding and abetting) and denied in part (e.g., claims based on color). 322 F. Supp. 2d 1101. Defendant limited partner's motion to dismiss granted; among other things, plaintiff did not allege sufficient facts in the second amended complaint that would establish defendant's liability under paragraph (3). 351 F. Supp. 2d 1025. Individuals are subject to liability under this section when they act as agents of an employer. 396 F. Supp. 2d 1138. Based on the plain language of § 378-1 and paragraph (2), plaintiff may not proceed under paragraph (2) against defendant, an individual employee. Plaintiff stated no claim under paragraph (3), where plaintiff claimed that defendant had incited, compelled, or coerced defendant into discriminating. 405 F. Supp. 2d 1225. Summary judgment granted for defendants (plaintiff's former employer and former supervisor) regarding plaintiff's state law sexual harassment claim brought pursuant to this section, where plaintiff did not meet the statutory filing deadline pursuant to chapter 378 or the tort statute of limitations for the claim. 468 F. Supp. 2d 1210. The "single-filing" or "piggyback" rule applied under Hawaii law, where the "dual-filed" equal employment opportunity commission administrative complaints of four plaintiffs-intervenors were filed after the 180-day deadline in § 368-11(c) and the plaintiffs-intervenors sought to "piggyback" on the timely administrative complaints of three other plaintiffs-intervenors. 504 F. Supp. 2d 1008. Where plaintiffs-intervenors' intentional infliction of emotional distress/negligent infliction of emotional distress claims were premised on a violation of this section, which provides a nonnegotiable state right, and the alleged conduct at issue involved discrimination on the basis of national origin and religion, the claims were not preempted by §301 of the Labor Management Relations Act. 535 F. Supp. 2d 1149. Plaintiff asserted claims for violation of Title I of the Americans with Disabilities Act (ADA) and this section; plaintiff did not establish a genuine issue of material fact that plaintiff was disabled pursuant to any of the definitions of "disability" pursuant to the ADA and this section. 586 F. Supp. 2d 1213. Violated by company policy requiring termination of person married to someone in same department unless termination falls under exception in § 378-3.72 Haw. 350,816 P.2d 302. Defendant's policy prohibiting persons related by blood or marriage from working in the same department, as applied to plaintiff, violated plain language and purpose of this section, unless the termination fell within one of the exceptions in § 378-3.76 H. 454,879 P.2d 1037. In action alleging unlawful discharge in violation of this section, time for filing administrative complaint begins to run on date that employee is actually discharged, that is, on date that employment terminates.76 Haw. 454,879 P.2d 1037. Where record contained numerous instances of both physical and verbal conduct of a sexual nature by doctor towards complainant and others, complainant never solicited or incited doctor's conduct, and conduct had effect of creating an intimidating, hostile, and offensive work environment, there was sufficient evidence to support commission's determination that doctor violated paragraph (1)(A) and Hawaii administrative rule § 12-46-109(a)(3).88 Haw. 10,960 P.2d 1218. Based on definition of "employer" in § 378-1, legislature intended all employers, regardless of size, to be subject to the provisions of this chapter, including paragraph (1)(A).89 Haw. 269,971 P.2d 1104. Employer's policy of denying any extended leave during employee's first year of employment violated Hawaii administrative rule § 12-46-108, which was adopted to enforce the legislative mandate of paragraph (1)(A) and Hawaii's constitutional prohibition against sex discrimination in the exercise of a person's civil rights in employment.89 Haw. 269,971 P.2d 1104. Where plaintiff in age discrimination suit did not meet plaintiff's burden of establishing that defendant's articulated reason for taking adverse employment action against plaintiff was pretextual, and plaintiff did not give any other evidence that would give rise to a genuine issue of material fact, trial court properly granted summary judgment. 94 H. 368,14 P.3d 1049. A compensation discrimination claim under paragraph (1) must satisfy the following three-part test: (1) plaintiff must first establish a prima facie case of discrimination; (2) defendant must then provide a legitimate, nondiscriminatory reason for the pay differences; and (3) if defendant articulates such a reason, plaintiff must then show that the reason given by defendant is pretexual.96 H. 408,32 P.3d 52. A retaliation claim under paragraph (2) is subject to a three-part test: (1) plaintiff must first establish a prima facie case of retaliation; (2) defendant must then provide a legitimate, nondiscriminatory reason for the adverse employment action; and (3) if defendant articulates such a reason, plaintiff must then show that the reason given by defendant is pretexual.96 Haw. 408,32 P.3d 52. To establish a "hostile environment" sexual harassment claim, claimant must show that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature; the conduct was unwelcome, severe or pervasive, and had the purpose or effect of either unreasonably interfering with claimant's work performance or creating an intimidating, hostile, or offensive work environment; that claimant actually perceived the conduct as having such purpose or effect; and claimant's perception was objectively reasonable to a person of claimant's gender in same position.97 Haw. 376,38 P.3d 95. Plaintiff was, as a matter of law, unable to maintain a sex discrimination claim based on retaliation under paragraph (2) where allegations described by plaintiff did not involve any discrimination based on sex, and plaintiff clarified that female co-worker's conduct created a hostile work environment not only for plaintiff, but for plaintiff's staff, which included both males and females.100 Haw. 149,58 P.3d 1196. Where co-worker sexually assaulted employee by grabbing employee's buttocks, conduct was sufficiently severe to constitute actionable sexual harassment; trial court erred in granting summary judgment for employer where there were genuine issues of material fact as to whether employer's response to buttock-grabbing incident was reasonably calculated to end co-worker's harassment.104 Haw. 423,91 P.3d 505. Trial court correctly ruled that appellant was precluded from bringing a claim of gender discrimination under this section where, under the circumstances, gender discrimination alleged in the civil complaint could not be said to be "consistent with appellant's original theory of the case" as submitted to the Hawaii civil rights commission.105 Haw. 462,99 P.3d 1046. Trial court properly granted summary judgment where appellant failed to establish a prima facie showing of a violation of this section, either on a theory of pattern or practice discrimination or of disparate treatment age discrimination.105 Haw. 462,99 P.3d 1046. An employee may bring action against employer for intentional infliction of emotional distress caused by discrimination in violation of this section, and this action is not barred by exclusivity provision of § 386-5.87 H. 57 (App.),951 P.2d 507. Where unclear from record that appropriate elements of discriminatory employment discharge claim based on race or ancestry under this section were considered, summary judgment improper.87 Haw. 57 (App.),951 P.2d 507. Mentioned: 800 F. Supp. 882. Where plaintiff's disability prevented plaintiff from being qualified to perform the essential functions of the ACO IV (prison guard) position, with or without reasonable accommodation, plaintiff failed to establish a prima facie case that plaintiff had lost plaintiff's position due to disability discrimination; also, because plaintiff could not show that plaintiff was qualified for the ACO IV position, plaintiff also failed to establish a prima facie case that plaintiff had lost plaintiff's position due to race or gender discrimination under this section.119 Haw. 288 (App.),196 P.3d 290.