§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, 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, or marital status.
(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) A signed written statement from a person listed below from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence:
(i) An employee, agent, or volunteer of a victim services organization;
(ii) The employee's attorney or advocate;
(iii) The attorney or advocate of the employee's minor child;
(iv) A medical or other health care professional; or
(v) A member of the clergy; or
(B) A police or court record supporting the occurrence of 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. [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 Sp 2009, c 1, §2; am L 2011, c 34, §4 and c 206, §2; am L 2013, c 248, §2]
Note
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, no. 1, at 75 (1989).
Two Growing Procedural Defenses in Common Law Wrongful Discharge Cases--Preemption and Res Judicata. 11 UH L. Rev. 143 (1989).
The Protection of Individual Rights Under Hawai‘i's Constitution. 14 UH L. Rev. 311 (1992).
Privacy and Genetics: Protecting Genetic Test Results in Hawai‘i. 25 UH L. Rev. 449 (2003).
Viability of the Continuing Violation Theory in Hawai‘i Employment Discrimination Law in the Aftermath of Ledbetter. 30 UH L. Rev. 423 (2008).
Case Notes
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 (1986).
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 (1997).
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 (1983).
Plaintiff alleged that employer contravened letter and purpose of section. 737 F. Supp. 1104 (1990).
Purpose is to protect claimants under workers' compensation law. 749 F. Supp. 1023 (1990).
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 (1994).
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 (2000).
Defendant could not be liable in defendant's individual capacity under paragraph (1)(A). 159 F. Supp. 2d 1211 (2001).
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 (2000).
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 (2004).
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 (2004).
Individuals are subject to liability under this section when they act as agents of an employer. 396 F. Supp. 2d 1138 (2005).
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 (2005).
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 (2006).
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 (2007).
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 (2008).
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 (2008).
Pre-2011 amendment to subsection (1): Hawaii supreme court would apply the test prescribed by the United States Supreme Court in Oncale in evaluating same-sex harassment and whether or not same-sex harassment constitutes discrimination "because of sex" under this section. 721 F. Supp. 2d 947 (2010).
The Hawaii supreme court in French did not demonstrate a clear attempt to keep Hawaii law distinct from the federal Americans with Disabilities Act (ADA) such that a claim under the Hawaii discrimination law raises issues sufficiently distinct from an ADA claim so as to prevent application of the first-to-file-rule. 728 F. Supp. 2d 1096 (2010).
For Eleventh Amendment purposes, a suit against a state official in that official's capacity is no different from a suit against the State itself; Hawaii has not consented to suit in federal court for chapter 378 claims, and sovereign immunity thus barred plaintiff teacher's claims under this section against the Hawaii department of education and the department of education superintendent in the superintendent's official capacity. 855 F. Supp. 2d 1155 (2012).
Where plaintiff claimed defendants aided and abetted the commission of a discriminatory act prohibited by this chapter, plaintiff's second amended complaint sufficiently pled factual allegations that stated a plausible argument that defendants acted with malice. 892 F. Supp. 2d 1245 (2012).
Defendant's motion for summary judgment on plaintiff's claims under paragraph (3) (2008) denied, where there were genuine issues of material fact whether some of the conduct alleged by plaintiff resulted in an adverse employment action. 907 F. Supp. 2d 1143 (2012).
Plaintiff could pursue claims under paragraph (3) (2008) against defendants even though they were not named respondents in the equal employment opportunity commission (EEOC) charges, where: (1) the county, a named respondent in the charges, and defendant prosecuting attorney were substantially identical parties and plaintiff had listed defendant as one of the persons responsible for the alleged discrimination against plaintiff in the EEOC questionnaire; and (2) other defendant was involved in the acts giving rise to the claims in the charges. 907 F. Supp. 2d 1143 (2012).
Where defendants argued that plaintiff did not exhaust administrative remedies as to claims under paragraph (3) (2008) because the aid and abet allegation was not contained in any of plaintiff's equal employment opportunity commission charges, plaintiff's claims were reasonably related to allegations in the charge to the extent those claims were consistent with certain claims expressly alleged against the county. 907 F. Supp. 2d 1143 (2012).
An age-based remark not made directly in the context of an employment decision or uttered by a non-decisionmaker may be relevant, circumstantial evidence of discrimination. However, the court did not find a relationship between the remarks and the employment practices at issue that was sufficient to establish discriminatory animus. 919 F. Supp. 2d 1101 (2013).
Plaintiff made a prima facie case of age and sex discrimination by demonstrating that plaintiff: (1) belonged to a protected class (male and 59 years old during the relevant time period); (2) performed the job adequately; (3) suffered an adverse employment action; and (4) a similarly situated, younger, female employee was treated differently. However, defendant was entitled to summary judgment on plaintiff's age and sex discrimination claims where plaintiff did not establish that defendant's legitimate business reasons for selecting the younger, female candidate were pretextual. 919 F. Supp. 2d 1101 (2013).
Defendant's motion for summary judgment denied where plaintiff raised genuine issue of material fact as to whether plaintiff's demotion was a result of national origin/ancestry or age discrimination. Even though plaintiff was not actually from Mexico, plaintiff may maintain a "perceived as" national origin claim if plaintiff was discriminated against based on characteristics that led others to connect plaintiff to Mexico, such as plaintiff's accent. Supervisor's alleged references to "old bags" and "old clunkers", combined with statements such as "you old people don't learn", raised an issue of fact as to whether supervisor had an animus toward older individuals that may have played a role in supervisor's decision to demote plaintiff. 927 F. Supp. 2d 978 (2013).
Defendant's motion for summary judgment granted as to plaintiff's retaliation claims where plaintiff failed to identify the adverse employment action plaintiff suffered in retaliation for plaintiff's exercise of rights, and further, there was no causal link between the supposed adverse employment action and plaintiff's exercise of rights. 927 F. Supp. 2d 978 (2013).
Plaintiff failed to demonstrate a prima facie case of sex discrimination because plaintiff failed to identify any similarly situated person outside of plaintiff's protected class who was treated more favorably. 937 F. Supp. 2d 1237 (2013).
Plaintiff failed to exhaust administrative remedies with respect to certain events to the extent plaintiff sought relief in connection with the events and presented the court with no applicable law that excused exhaustion on the basis of futility. 937 F. Supp. 2d 1237 (2013).
Plaintiff submitted no evidence that raised a question of fact regarding whether defendant former employer or former supervisor thought plaintiff had a mental impairment. 937 F. Supp. 2d 1237 (2013).
Summary judgment granted to defendants on plaintiff's disparate impact claims based on race, ancestry, and age, where, among other things, plaintiff did not provide evidence that allowed the court to draw even the inference that the former supervisor's criticism flowed from some discriminatory animus on the former supervisor's part. 937 F. Supp. 2d 1237 (2013).
Evidence regarding claims of disparate treatment based on age was direct; the alleged comment by the chief investigator regarding plaintiff's age not only reflected a negative attitude toward older workers, it indicated an intent to fill plaintiff's former supervisory position with a younger person because plaintiff was simply "too old"; summary judgment in favor of defendant denied. 938 F. Supp. 2d 1000 (2013).
Summary judgment granted to defendant regarding: (1) any "hostile work environment" claims plaintiff may have been trying to assert, as plaintiff provided no evidence establishing that plaintiff's workplace was permeated with discriminatory intimidation relating to plaintiff's national origin or age; and (2) plaintiff's retaliation claims, as plaintiff failed to show evidence that plaintiff engaged in protected activity, was thereafter subjected to an adverse employment action, and that there was a causal link between the protected activity and the adverse employment action. 938 F. Supp. 2d 1000 (2013).
Treating plaintiff's evidence relating to national origin discrimination, i.e., the alleged comment by the chief investigator and/or administrator reportedly referring to a need "to make the office safe" from plaintiff because plaintiff was "a typical Samoan", as "specific" and "substantial", plaintiff raised questions of fact as to plaintiff's claims of disparate treatment based on national origin in violation of this section and Title VII. 938 F. Supp. 2d 1000 (2013).
Plaintiff presented no evidence regarding adverse employment actions taken against any other employee of defendant, much less any employee who could fall within the protected class for an age discrimination claim, regarding plaintiff's age discrimination claims based upon theories of disparate impact or "pattern-or-practice". 963 F. Supp. 2d 1002 (2013).
Violated by company policy requiring termination of person married to someone in same department unless termination falls under exception in §378-3. 72 H. 350, 816 P.2d 302 (1991).
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 (1994).
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 H. 454, 879 P.2d 1037 (1994).
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 H. 10, 960 P.2d 1218 (1998).
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 H. 269, 971 P.2d 1104 (1999).
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 H. 269, 971 P.2d 1104 (1999).
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 (2000).
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 (2001).
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 H. 408, 32 P.3d 52 (2001).
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 H. 376, 38 P.3d 95 (2001).
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 H. 149, 58 P.3d 1196 (2002).
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 H. 423, 91 P.3d 505 (2004).
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 H. 462, 99 P.3d 1046 (2004).
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 H. 462, 99 P.3d 1046 (2004).
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 (1998).
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 H. 57 (App.), 951 P.2d 507 (1998).
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 H. 288 (App.), 196 P.3d 290 (2008).
Circuit court erred in granting summary judgment against plaintiff employee on plaintiff's claim under this section where a genuine issue of material fact existed as to whether defendant employer's stated reasons for plaintiff employee's termination, undertaking cost-cutting restructuring measures following bankruptcy, lacked credibility and were pretextual. 130 H. 325 (App.), 310 P.3d 1026 (2013).
Cited: 760 F. Supp. 2d 1005 (2010).
Mentioned: 800 F. Supp. 882 (1992).
Section: Previous 378-1-to-378-10 378-2 378-2.3 378-2.5 378-2.7 378-3 378-4 378-5 378-6 378-7-to-378-9 378-10 378-21-and-378-22 378-26 378-26.5 378-27 NextLast modified: October 27, 2016