HRS Chapter 378
Unofficial*

HAWAI'I EMPLOYMENT PRACTICES ACT, Part I

*  These sections from the Hawaii Revised Statutes are made available on this site by the Hawai'i Civil Rights Commission as a public service. Neither the State of Hawai'i, nor any agency, officer or employee of the State of Hawai'i, guarantees its accuracy, reliability, completeness or timeliness, and may not be held liable for any losses caused by any person's or entity's reliance on the statutes as published here. Users are advised to consult the official published version of the Hawaii Revised Statutes, and that any reliance on the statutes cited here is done at their own risk.

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SECTIONS:

PART I. [NEW] DISCRIMINATORY PRACTICES

§378-1 Definitions. As used herein:
"Arrest and court record" includes any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority.
"Because of sex" shall include, but is not limited to, because of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other individuals not so affected but similar in their ability or inability to work.
"Being regarded as having such an impairment" includes but is not limited to employer consideration of an individual's genetic information, including genetic information of any family member of an individual, or the individual's refusal to submit to a genetic test as a condition of initial or continued employment.
"Commission" means the civil rights commission.
"Disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment.
"Employer" means any person, including the State or any of its political subdivisions and any agent of such person, having one or more employees, but shall not include the United States.
"Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into. Employment does not include services by an individual employed as a domestic in the home of any person.
"Employment agency" means any person engaged in the business of providing employment information, procuring employment for applicants, or providing employees for placement with employers upon request.
"Family member" means, with respect to a certain individual, another individual related by blood to that individual.
"Genetic information" means information about genes, gene products, hereditary susceptibility to disease, or inherited characteristics that may derive from the individual or family member.
"Genetic test" means a laboratory test which is generally accepted in the scientific and medical communities for the determination of the presence or absence of genetic information.
"Labor organization" means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
"Marital status" means the state of being married or being single.
"Person" means one or more individuals, and includes, but is not limited to, partnerships, associations, or corporations, legal representatives, trustees, trustees in bankruptcy, receivers, or the State or any of its political subdivisions.
"Sexual orientation" means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences. "Sexual orientation" shall not be construed to protect conduct otherwise proscribed by law. [L 1981, c 94, pt of § 2; am L 1986, c 223, §§ 1, 2; am L 1989, c 386, §§ 3,17; am L 1991, c 2, § 2; am L 1992, c 33, § 5; am L 2002, c 217, § 1]

§378-2 Discriminatory practices made unlawful; offenses defined.
It shall be an unlawful discriminatory practice:

1. Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record:
   (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, which 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 less 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; or
   
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: or
   
7. For any employer or labor organization to refuse to hire or employ, or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an 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.[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]

§ 378-2.5 Employer inquiries into conviction record. (a) Subject to subsection (b), an employer may inquire about and consider an individual's criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment; provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.
(b) Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position.
(c) For purposes of this section, "conviction" means an adjudication by a court of competent jurisdiction that the defendant committed a crime, not including final judgements required to be confidential pursuant to section 571-84; provided that the employer may consider the employee's conviction record falling within a period that shall not exceed the most recent ten years[.], excluding periods of incarceration. If the employee or prospective employee claims that the period of incarceration was less than what is shown on the employee's or prospective employee's conviction record, an employer shall provide the employee or prospective employee with an opportunity to present documentary evidence of a date of release to establish a period of incarceration that is shorter than the sentence imposed for the employee's or prospective employee's conviction.
(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee's conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent ten-year period, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including:

1. The State or any of its branches, political subdivisions, or agencies pursuant to section 831-3.1 and section 78- ;
2. The department of education pursuant to section 302A-A;
3. The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services on behalf of the child and adolescent mental health division pursuant to section 321- ;
4. The judiciary pursuant to section 571-34;
5. The counties pursuant to section 846- ;
6. Armed security services pursuant to section 261-17(b);
7. Providers of a developmental disabilities domiciliary home pursuant to section 333F-22;
8. Private schools pursuant to section 378-3(8) and section 302A-B;
9. Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9);
10. Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b);
11. Employers in the business of insurance pursuant to section 431:2-201.3;
12. Employers of individuals or supervisors of individuals responsible for screening passengers or property under 49 U.S.C. §44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to 49 U.S.C. §44936(a);
13. The department of human services pursuant to section 352-5.5;
14. The public library system pursuant to section 302A-A;
15. The department of public safety pursuant to section 353C-5;
16. The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I- ; and
17. The board of directors of an association of apartment owners, or the manager of a condominium project pursuant to section 514A-82.1. [L 1998, c 175, § 1; am L 2003, c 95 §12]

§ 378-3 Exceptions. Nothing in this part shall be deemed to:

1. Repeal or affect any law, ordinance, or government rule having the force and effect of law;
2. Prohibit or prevent the establishment and maintenance of bona fide occupational qualifications reasonably necessary to the normal operation of a particular business or enterprise, and that have a substantial relationship to the functions and responsibilities of prospective or continued employment;
3. Prohibit or prevent an employer, employment agency, or labor organization from refusing to hire, refer, or discharge any individual for reasons relating to the ability of the individual to perform the work in question;
4. Affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan that is not intended to evade the purpose of this chapter; provided that this exception shall not be construed to permit any employee plan to set a maximum age requirement for hiring or a mandatory retirement age;
5. Prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to individuals of the same religion or denomination or from making a selection calculated to promote the religious principles for which the organization is established or maintained;
6. Conflict with or affect the application of security regulations or rules in employment established by the United States or the State;
7. Require the employer to execute unreasonable structural changes or expensive equipment alterations to accommodate the employment of a person with a disability;
8. Prohibit or prevent the department of education or private schools from considering criminal convictions in determining whether a prospective employee is suited to working in close proximity to children ;
9. Prohibit or prevent any financial institution in which deposits are insured by a federal agency having jurisdiction over the financial institution from denying employment to or discharging from employment any person who has been convicted of any criminal offense involving dishonesty or a breach of trust, unless it has the prior written consent of the federal agency having jurisdiction over the financial institution to hire or retain the person;
10. Preclude any employee from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto; provided that notwithstanding section 368-12, the commission shall issue a right to sue on a complaint filed with the commission if it determines that a civil action alleging similar facts has been filed in circuit court;
11. Require the employer to accommodate the needs of a nondisabled person associated with or related to a person with a disability in any way not required by Title I of the Americans with Disabilities Act. [L 1981, c 94, pt of § 2; am L 1984, c 85, § 4; am L 1985, c 162, § 1; am L 1990, c 257, § 3; L 1991, c 262, § 2; am L 1992, c 33, § 3 and c 275, § 1; am L 1994 c 88, § 2; am L 1997, c 365, § 2; am L 1998, c 175, § 2]

§ 378-4 Enforcement jurisdiction. The commission shall have jurisdiction over the subject of discriminatory practices made unlawful by this part. Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may file with the commission a complaint in accordance with the procedure established under chapter 368. [L 1981, c 94, pt of § 2; am L 1989, c 386, § 8]

§ 378-5 Remedies. (a) The commission may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent labor organization, or other remedies as provided under chapter 368, which in the judgment of the commission, will effectuate the purpose of this part, including a requirement for reporting on the manner of compliance.
(b) In any civil action brought under this part, if the court finds that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this part, the court may enjoin the respondent from engaging in such unlawful discriminatory practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement, hiring, or upgrading of employees, with or without backpay, or restoration of membership in any respondent labor organization, or any other equitable relief the court deems appropriate. Backpay liability shall not accrue from a date more than two years prior to the filing of the complaint with the commission.
(c) In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of any nature and reasonable attorney's fees, to be paid by the defendant. [L 1981, c 94, pt of § 2; am L 1989, c 386, § 9]

§ 378-6 Inspection; investigation; records.
(a) In connection with an investigation of a complaint filed under this part, or whenever it appears to the commission that an unlawful discriminatory practice may have been or is being committed, the commissionŐs authorized representative shall have access to the premises of the parties or persons reasonably connected thereto, records, documents, and other material relevant to the complaint and shall have the right to examine, photograph, and copy that material, and may question employees and make investigation to determine whether any person has violated this part or any rule issued hereunder or which may aid in the enforcement of this part.
(b) Every employer, employment agency, and labor organization shall:

1. Make and keep records relevant to this part, and
2. Make such reports therefrom, as the commission shall prescribe by rule or order. [L 1981, c 94, pt of § 2; am imp L 1984, c 90, § 1; am L 1989, c 386, § 10]

§§ 378-7 to 9 REPEALED. L 1989, c 386, §§ 18 to 20; effective January 1, 1991

§378-10 Breastfeeding. No employer shall prohibit an employee from expressing breastmilk during any meal period or other break period required by law to be provided by the employer or required by collective bargaining agreement. [L 1999, c 172, § 2]

To view these sections, however, you may refer to the University of Hawai'i- West Oahu, Center for Labor Education & Research at http://www.uhwo.hawaii.edu/clear/ HRS378.html