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§§378-1 to 10  REPEALED.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 toVictims in Hawai`i.  15 UH L. Rev. 453.

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

 

Case Notes

 

  Section 368-17 permits a court to award compensatory andpunitive 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 ofretaliation where the fifteen year span of time between plaintiff's 1985discrimination complaint and the adverse employment action of the case was toolong to permit a causal connection to be inferred between the protectedactivity and the adverse employment action.  119 H. 288 (App.), 196 P.3d 290.

 

§378-1  Definitions.  As used herein:

"Arrest and court record" includesany information about an individual having been questioned, apprehended, takeninto custody or detention, held for investigation, charged with an offense,served a summons, arrested with or without a warrant, tried, or convictedpursuant to any law enforcement or military authority.

"Because of sex" shall include, butis not limited to, because of pregnancy, childbirth, or related medicalconditions; and women affected by pregnancy, childbirth, or related medicalconditions shall be treated the same for all employment-related purposes,including receipt of benefits under fringe benefit programs, as otherindividuals not so affected but similar in their ability or inability to work.

"Being regarded as having such animpairment" includes but is not limited to employer consideration of anindividual's genetic information, including genetic information of any familymember of an individual, or the individual's refusal to submit to a genetictest as a condition of initial or continued employment.

"Commission" means the civil rightscommission.

"Disability" means the state ofhaving a physical or mental impairment which substantially limits one or moremajor life activities, having a record of such an impairment, or being regardedas having such an impairment.

"Employer" means any person,including the State or any of its political subdivisions and any agent of suchperson, having one or more employees, but shall not include the United States.

"Employment" means any serviceperformed by an individual for another person under any contract of hire,express or implied, oral or written, whether lawfully or unlawfully enteredinto.  Employment does not include services by an individual employed as adomestic in the home of any person.

"Employment agency" means any personengaged in the business of providing employment information, procuringemployment for applicants, or providing employees for placement with employersupon request.

"Family member" means, with respectto a certain individual, another individual related by blood to thatindividual.

"Genetic information" meansinformation about genes, gene products, hereditary susceptibility to disease,or inherited characteristics that may derive from the individual or familymember.

"Genetic test" means a laboratorytest which is generally accepted in the scientific and medical communities forthe determination of the presence or absence of genetic information.

"Labor organization" means anyorganization which exists and is constituted for the purpose, in whole or inpart, of collective bargaining or of dealing with employers concerninggrievances, terms or conditions of employment, or of other mutual aid orprotection.

"Marital status" means the state ofbeing married or being single.

"Person" means one or more individuals,and includes, but is not limited to, partnerships, associations, orcorporations, legal representatives, trustees, trustees in bankruptcy,receivers, or the State or any of its political subdivisions.

"Sexual orientation" means having apreference for heterosexuality, homosexuality, or bisexuality, having a historyof any one or more of these preferences, or being identified with any one ormore of these preferences.  "Sexual orientation" shall not beconstrued 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; amL 1992, c 33, §5; am L 2002, c 217, §1]

 

Law Journals and Reviews

 

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

 

Case Notes

 

  Individuals are subject to liability under §378-2 when theyact 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 individualemployee.  405 F. Supp. 2d 1225.

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

  The issue of whether a plaintiff's major life activity issubstantially limited must be resolved on a case-by-case basis; thus, thedetermination of whether the lifting restriction on employee was substantialrequired an individualized inquiry that was inappropriate for summaryjudgment.  105 H. 462, 99 P.3d 1046.