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EEO - Discrimination: Hawaii

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Anna Elento-Sneed, Alston Hunt Floyd & Ing

Summary

Hawaii Law Against Discrimination

Hawaii has very liberal equal employment opportunity laws. The Hawaii Fair Employment Practices Act prohibits discrimination based on the same classifications protected under federal law, as well as numerous other classifications that are solely protected by state law. +Haw. Rev. Stat. §378-1 et seq.

Hawaii Civil Rights Commission

The Hawaii Civil Rights Commission (HCRC) enforces the state's discrimination law. +Haw. Rev. Stat. §368-1 et seq.

The HCRC has the power to investigate and conciliate claims, and to issue right-to-sue letters. Procedures are similar to those under federal laws.

The HCRC also has the power to conduct contested case hearings. HCRC decisions are appealed to the state courts.

As mandated by the HCRC, all Hawaii employers must post the Hawaii Laws Prohibiting Employment Discrimination Poster in a conspicuous manner, in a place accessible to employees.

Key Terms and Concepts

Who Is an Employee for Purposes of Coverage

State law covers all employers, except for the federal government, regardless of size. +Haw. Rev. Stat. §378-1.

All employees are protected by the law, regardless of the number of hours worked. +Haw. Rev. Stat. §378-2.

Protected Class

Like federal law, Hawaii law prohibits discrimination based on race, color, national origin, sex (including pregnancy), religion, age, disability (including genetic information) and family responsibilities (breastfeeding and family leave).

Hawaii also prohibits discrimination based on gender identity and expression, sexual orientation, ancestry, marital status, arrest and court record, domestic or sexual violence victim status, child support orders, lactation or expression of breast milk, credit history, garnishment, work injury, or sick leave (only for employers with 100 or more employees).

Protected Classes

Sex

Sex includes transgendered individuals.

Gender identity and expression is also protected. The classification includes a person's actual or perceived gender, as well as a person's gender identity, self-image, appearance or expression.

Age

The law does not specify an age at which individuals are protected by state law. Therefore, an individual may be able to bring a claim of reverse age discrimination.

National Origin

Ancestry is treated as a distinct category from national origin. It refers to a person's linguistic or cultural characteristics.

Sexual Orientation and Gender Identity and Expression

State law prohibits discrimination based on sexual orientation. Sexual orientation means having a preference for heterosexuality, homosexuality, or bisexuality, or having a history of any one or more of these preferences. Hawaii employers also may not discriminate against individuals based on gender identity and expression. Gender expression refers to a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.

Pregnancy

In Hawaii, pregnancy falls under the protected classification of sex.

Pregnant employees may not be excluded from work due to their pregnancy and are entitled to reasonable accommodation if their pregnancy affects their ability to perform their duties. +Haw. Admin. Rules §12-46 (107).

Individuals disabled by pregnancy, childbirth or related medical conditions are also entitled to preferential treatment which includes:

  • A leave of absence for a reasonable period of time, as determined by her treating physician;
  • Full service credits and privileges (benefits) during the period of their absence; and
  • Guaranteed reinstatement to their original position or another position of comparable pay, benefits and status. +Haw. Admin. Rules §12-46 (108).

Marital Status and Same-Sex Marriage

Civil union partners are entitled to the same protections under state law as married persons. +Haw. Rev. Stat. §572B-1 et seq.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

Reproductive Health Decisions

Effective July 2, 2019, Hawaii prohibits discrimination based on reproductive health decisions.

A reproductive health decision is defined as the use or attempted use of any legal drug, device, or medical service intended to prevent or terminate a pregnancy, or the use or attempted use of any assisted reproductive technology.

+2019 Bill Text HI H.B. 710, amending +Haw. Rev. Stat.§ 378-1; +Haw. Rev. Stat. § 378-2.

Other Protected Classifications Under Hawaii Law

Hawaii also prohibits discrimination based on arrest and court record, domestic or sexual violence victim status, or sick leave (only for employers with 100 or more employees).

Arrest and court record includes any information about a person having been questioned, apprehended, taken into custody or detention, held for investigated, charged with an offense, served a summons, arrested without a warrant, tried, or convicted.

An employer may inquire about an individual's criminal conviction record if the inquiry is done post-offer, the conviction record falls within a period that does not exceed the most recent ten years (excluding periods of incarceration), and the conviction bears a rational relationship to the duties and responsibilities of the position in question. +Haw. Rev. Stat. §378-2.5. Domestic or sexual violence victim status means an individual who is the victim of domestic or sexual violence and refers to situations in which the employer is aware of such status as a victim. An employee who is a victim must notify his or her employer of the employee's status as a victim or the employer must have actual knowledge. Domestic or sexual violence victims are entitled to an unpaid leave of absence each year. +Haw. Rev. Stat. §378-72. Employers must also provide reasonable accommodation to victims provided such accommodations do not cause the employer undue hardship. +Haw. Rev. Stat. §378-81. Reasonable accommodations may include changing the employee's contact information, screening the employee's telephone calls, restructuring the job functions of the employee, changing the employee's work location, installing locks and other security devices, and allowing the employee to work flexible hours. An employer may request verification of an employee's continued status within specified time frames. Employees who are victims of domestic or sexual violence and denied reasonable accommodations may bring a civil action.

Employers are also prohibited from refusing to hire or employ, barring or discharging from employment, withholding pay from, demoting and/or otherwise discriminating against an individual:

Large employers (100 or more employees) who are unionized are prohibited from barring or discharging from employment, withholding pay from, or demoting an employee because the employee uses accrued and available sick leave. +Haw. Rev. Stat. §378-32(b).

Managing Discrimination and Equal Employment Opportunity

Who Can Be Liable

Managers and supervisors may be held liable as agents of the employer. +Haw. Rev. Stat. §378-1.

Individuals (whether an employer, employee or third party) may be held liable for aiding, abetting, inciting, compelling or coercing individuals into discrimination. +Haw. Rev. Stat. §378-2(3).

Establishing a Claim of Discrimination

The requirements for proving a discrimination claim under state law are the same as the requirements under federal law. However, there are some differences in cases involve requests for reasonable accommodation.

Reasonably Accommodating Employees

Hawaii employers must provide reasonable accommodation for the following protected classifications:

  • Disability;
  • Pregnancy;
  • Religion; and
  • Victims of domestic violence or sexual abuse.

Accommodations for victims of domestic violence or sexual abuse include: changing contact information; screening telephone calls; restructuring job functions; changing work locations; installing locks and other security devices; and allowing the employee to work flexible hours. +Haw. Rev. Stat. §378-81.

Employers may require an employee to provide medical verification from his or her treating physician as part of the interactive reasonable accommodation process. However, the employer must provide the employee's physician with a written job description and a copy of the regulations on reasonable accommodations. +Haw. Admin. Rules §12-46 (191(c)).

Undue hardship under state discrimination law is limited to significant cost. The financial wherewithal of the employer's parent corporation, if any, will be taken into consideration. Haw. Admin. Rules §12-46-182.

Accommodating Pregnancy

All employers in Hawaii with one or more employees must make every reasonable accommodation for any employee disabled due to pregnancy, childbirth or a related medical condition as provided in the Hawaii Fair Employment Practices Act (FEPA). +Haw. Rev. Stat. § 378-1; +Haw. Admin. Rules § 12-46 (107). All employees are protected, regardless of how long they have worked for the employer. +Haw. Rev. Stat. § 378-2. An employer must consider disability due to pregnancy, childbirth or related medical conditions as justification for a leave, with or without pay, for a reasonable period of time. +WCHR § 12-46(108)(a).

Benefits must continue during the leave, and the employee is entitled to accrue seniority for the duration of the leave. Once the employee is released to return to work, the employer must guarantee her reinstatement to her original position or an equivalent position of like status, pay and benefits. +WCHR § 12-46(108). See also Disabilities (ADA): Hawaii.

Handling a Discrimination Charge and Investigation

Charges

Discrimination charges filed with the Equal Employment Opportunity Commission are automatically filed with the Hawaii Civil Rights Commission, and vice versa. +Haw. Admin. Rules §12-46.

Claims under state law must be filed within 180 days after the last incident. +Haw. Rev. Stat. §368-11(c). Claims under federal law must be filed within 300 days after the last incident.

Only one agency will take the lead in investigating the charge. If the case includes claims under state law, HCRC will be responsible for the charge. +Haw. Admin. Rules §12-46.

Enforcement Rights Under EEO Statutes

Once the investigation is completed, the general practice is for both agencies to issue right-to-sue letters. The charging party then has 90 days to file a claim in either federal and/or state court.

Plaintiffs in EEO cases may request a jury trial.

Handling an Employment Discrimination Lawsuit

Although Hawaii's court rules do not expressly provide for electronic discovery, the practice is for parties to engage in electronic discovery.

Litigation holds should be issued as soon as the charge of discrimination is received.

State court judges are reluctant to grant summary judgment and dismiss claims as a matter of law. An employer seeking to dismiss a disability discrimination claim on the grounds that the individual is not disabled, will have the burden of proving that the individual is not disabled. See French v. Hawaii Pizza Hut, Inc., +105 Hawaii 462 (2004).

Court-supervised settlement negotiations and/or private mediation are the most common methods for resolving discrimination lawsuits.

Damages under state law include reinstatement, back pay, front pay, emotional distress damages, punitive damages and attorneys' fees.

There are no damage caps under state law.

Alternative Dispute Resolution and Employment Law Claims

The HCRC will not honor mandatory arbitration agreements.

Employers and employees may mutually elect to go through mediation before or after discrimination charge has been filed. HCRC will stay its investigation pending the outcome of the mediation.

Mediation can be accomplished with HCRC mediators or private mediators.

Mediation procedures must comply with state law. +Haw. Rev. Stat. §658A-1 et seq.

Equal Pay

The Hawaii Fair Employment Practices Act includes an equal pay provision that prohibits sex discrimination in compensation. +Haw. Rev. Stat. §378-2.3. Hawaii generally follows the federal law in equal pay claims and processes these charges like other sex discrimination charges. Specifically, Hawaii employers with one or more employee are prohibited from discriminating against employees in the same establishment because of sex by paying wages at a rate less than the rate at which the employer pays wages to employees of the opposite sex for equal work on jobs requiring equal skill, effort, and responsibility and performed under similar working conditions. +Haw. Rev. Stat. § 378-1; +Haw. Rev. Stat. § 378-2.3. Wage differentials are permissible if based on a seniority system, a merit system; system measuring earnings by quantity or quality of production, a bona fide occupational qualification, or a differential based on any other permissible factor other than sex.

Similarly, Hawaii's wage and hour law bans discrimination in the payment of wages based on race, religion, or sex. +Haw. Rev. Stat. § 387-1; +Haw. Rev. Stat. § 387-4. The law does not prohibit varying wage rates for employees engaged in the same classification of work based upon differences in in seniority, length of service, substantial differences in duties or services performed, or differences in shift or time of day worked or hours of work.

Salary History

Effective January 1, 2019, an employer is prohibited from:

  • Inquiring about the salary history of an applicant for employment; or
  • Relying on the salary history of an applicant in determining the salary, benefits, or other compensation for the applicant during the hiring process, including the negotiation of an employment contract.

+2017 Bill Text HI S.B. 2351; HRS § 378-2.4.

However, without inquiring about salary history, an employer may engage in discussions with an applicant for employment about the applicant's expectations with respect to salary, benefits, and other compensation.

If an applicant voluntarily and without prompting discloses salary history to an employer, the employer may consider salary history in determining salary, benefits, and other compensation for the applicant, and may verify the applicant's salary history.

This law does not apply to:

  • Applicants for internal transfer or promotion with their current employer;
  • Any attempt by an employer to verify an applicant's disclosure of non-salary related information or conduct a background check; provided that if a verification or background check discloses the applicant's salary history, that disclosure shall not be relied upon during the hiring process for purposes of determining the salary, benefits, or other compensation of the applicant, including the negotiation of an employment contract; and
  • Public employee positions for which salary, benefits, or other compensation are determined pursuant to collective bargaining.

Under the law, the term inquire means to:

  • Communicate any question or statement to an applicant for employment, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing, verbally, or otherwise, for the purpose of obtaining an applicant's salary history; or
  • Conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history; provided that this shall not include informing an applicant, in writing or otherwise, about the proposed or anticipated salary or salary range for the position.

Salary history includes an applicant for employment's current or prior wage, benefits, or other compensation, but shall not include any objective measure of the applicant's productivity, such as revenue, sales, or other production reports.

Wage Disclosure

Effective January 1, 2019, an employer shall not retaliate or discriminate against an employee for, nor prohibit an employee from, disclosing the employee's wages, discussing and inquiring about the wages of other employees, or aiding or encouraging other employees to exercise their rights under this section.+2017 Bill Text HI S.B. 2351.

Lactation/Breastfeeding Protections and Accommodations

Hawaii law permits a mother to breastfeed in public and no place of public accommodation may discriminate against a mother breastfeeding in public.+Haw. Rev. Stat. § 378-2. An employer is prohibited from discriminating against, refusing to hire or employ, barring or discharging from employment, withholding pay, demoting, or penalizing a nursing employee because she breastfeeds or expresses milk at the workplace. An employer must also provide nursing mothers "reasonable" break time each time they need to express breast milk for a nursing child for up to one year after the child's birth. An employer also must:

  • Provide a private space (other than a restroom stall) where the public and coworkers cannot enter;
  • Conspicuously post a notice in the workplace advising employees about the law's protections and obligations; and
  • Inform employees about their protections through "other appropriate means," which is not defined under the law but may consist of posting on the employer's intranet site or passing out a copy of the law.

An employer with less than 20 employees may be excused from this law's requirements if the employer can show that the law would impose an undue hardship (significant difficulty or expense) given the employer's business's size, financial resources, nature, or structure.

+Haw. Rev. Stat. § 378-92.

Every employer in Hawaii with 20 or more employees is required to post the Breastfeeding in the Workplace Notice Poster in a conspicuous manner, in a place accessible to employees. Employers with less than 20 employees may be excused from the legal requirements if they can show compliance with the law would impose undue hardship on the business.

Employers may not discharge or discriminate against employees who take leave under Hawaii's Family Leave Law. +Haw. Rev. Stat. §398-1 et seq.

Future Developments

There are no new developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > EEO - Discrimination

Hawaii Civil Rights Commission