PART I. 
[OLD] DISCRIMINATORY PRACTICES



 



§§378-1 to 10  REPEALED.  L 1977, c 85,
§2; L 1981, c 94, §2.



 



PART I. 
[NEW] DISCRIMINATORY PRACTICES



 



Cross References



 



  Civil rights commission, see chapter 368.



 



Law Journals and Reviews



 



  Sexual Harassment in the Workplace:  Remedies Available to
Victims in Hawai`i.  15 UH L. Rev. 453.



  Privacy and Genetics:  Protecting Genetic Test Results in
Hawai`i.  25 UH L. Rev. 449.



 



Case Notes



 



  Section 368-17 permits a court to award compensatory and
punitive damages in civil actions brought under part I of this chapter.  85 H.
7, 936 P.2d 643.



  Plaintiff failed to establish a prima facie case of
retaliation where the fifteen year span of time between plaintiff's 1985
discrimination complaint and the adverse employment action of the case was too
long to permit a causal connection to be inferred between the protected
activity and the adverse employment action.  119 H. 288 (App.), 196 P.3d 290.



 



§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]



 



Law Journals and Reviews



 



  Privacy and Genetics:  Protecting Genetic Test Results in
Hawai‘i.  25 UH L. Rev. 449.



 



Case Notes



 



  Individuals are subject to liability under §378-2 when they
act as agents of an employer.  396 F. Supp. 2d 1138.



  Based on the plain language of this section and §378-2(2),
plaintiff may not proceed under §378-2(2) against defendant, an individual
employee.  405 F. Supp. 2d 1225.



  Based on the definition of "employer" in this
section, legislature intended all employers, regardless of size, to be subject
to the provisions of this chapter.  89 H. 269, 971 P.2d 1104.



  The issue of whether a plaintiff's major life activity is
substantially limited must be resolved on a case-by-case basis; thus, the
determination of whether the lifting restriction on employee was substantial
required an individualized inquiry that was inappropriate for summary
judgment.  105 H. 462, 99 P.3d 1046.