§378-2  Discriminatory practices madeunlawful; offenses defined.  It shall be an unlawful discriminatorypractice:

(1)  Because of race, sex, sexual orientation, age,religion, color, ancestry, disability, marital status, or arrest and courtrecord:

(A)  For any employer to refuse to hire oremploy or to bar or discharge from employment, or otherwise to discriminateagainst any individual in compensation or in the terms, conditions, orprivileges of employment;

(B)  For any employment agency to fail or refuseto refer for employment, or to classify or otherwise to discriminate against,any individual;

(C)  For any employer or employment agency toprint, circulate, or cause to be printed or circulated any statement,advertisement, or publication or to use any form of application for employmentor to make any inquiry in connection with prospective employment, whichexpresses, directly or indirectly, any limitation, specification, ordiscrimination;

(D)  For any labor organization to exclude orexpel from its membership any individual or to discriminate in any way againstany of its members, employer, or employees; or

(E)  For any employer or labor organization torefuse 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, oremployment agency to discharge, expel, or otherwise discriminate against anyindividual because the individual has opposed any practice forbidden by thispart or has filed a complaint, testified, or assisted in any proceedingrespecting the discriminatory practices prohibited under this part;

(3)  For any person whether an employer, employee, ornot, to aid, abet, incite, compel, or coerce the doing of any of thediscriminatory practices forbidden by this part, or to attempt to do so;

(4)  For any employer to violate the provisions ofsection 121-43 relating to nonforfeiture for absence by members of the nationalguard;

(5)  For any employer to refuse to hire or employ orto bar or discharge from employment, any individual because of assignment ofincome for the purpose of satisfying the individual's child support obligationsas provided for under section 571-52;

(6)  For any employer, labor organization, oremployment agency to exclude or otherwise deny equal jobs or benefits to aqualified individual because of the known disability of an individual with whomthe qualified individual is known to have a relationship or association;

(7)  For any employer or labor organization to refuseto hire or employ or to bar or discharge from employment, or withhold pay,demote, or penalize a lactating employee because an employee breastfeeds orexpresses milk at the workplace.  For purposes of this paragraph, the term "breastfeeds"means the feeding of a child directly from the breast; or

(8)  For any employer to refuse to hire or employ orto bar or discharge from employment, or otherwise to discriminate against anyindividual in compensation or in the terms, conditions, or privileges ofemployment of any individual because of the individual's credit history orcredit report, unless the information in the individual's credit history orcredit report directly relates to a bona fide occupational qualification undersection 378-3(2). [L 1981, c 94, pt of §2; am L 1985, c 177, §1; am L 1986, c223, §3; am L 1991, c 2, §3; am L 1992, c 33, §5; am L 1994, c 88, §1; am L1999, c 172, §3; am L 2009, c 1, §2]

 

Note

 

  L 1999, c 172, §5 provides:

  "SECTION 5.  Nothing in this Act [amending §378-2 andenacting §378-10] prohibits employers from establishing internal rules andguidelines for employees who may wish to breastfeed or express breastmilk inthe workplace."

 

Law Journals and Reviews

 

  Canadian Pacific Cases:  Kinoshita & Nakashima:  WhatReally Happened to the Employer?  22 HBJ 75.

  Two Growing Procedural Defenses in Common Law WrongfulDischarge Cases--Preemption and Res Judicata.  11 UH L. Rev. 143.

  The Protection of Individual Rights Under Hawai‘i'sConstitution.  14 UH L. Rev. 311.

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

  Viability of the Continuing Violation Theory in Hawai`iEmployment Discrimination Law in the Aftermath of Ledbetter.  30 UH L. Rev.423.

 

Case Notes

 

  Not violated where employer discharged employees not merelybecause of their drug-related arrests but because of perceived harm toemployer's reputation and business contracts.  803 F.2d 471.

  Monocular pilot applicant's disability discrimination claim andretaliation claim not preempted by Airline Deregulation Act of 1978; pilotapplicant's success or failure on the discrimination claim had no bearing onpilot applicant's retaliation claim.  128 F.3d 1301.

  Not unlawful for employer to discharge wife, who along withhusband, violated employer's policy by forming own company while still workingfor employer.  558 F. Supp. 1229.

  Plaintiff alleged that employer contravened letter andpurpose of section.  737 F. Supp. 1104.

  Purpose is to protect claimants under workers' compensationlaw.  749 F. Supp. 1023.

  Because this section and §378-62 did not contain limitationperiods, court invoked State's general personal injury statute of limitations,§657-7; plaintiff's state law claims barred where neither the collectivebargaining proceedings nor the equal employment opportunity commissionproceedings tolled the statute of limitations.  874 F. Supp. 1095.

  Plaintiff brought forth evidence of a continuing series ofconduct which affected plaintiff and plaintiff's work environment; plaintiff'ssexual harassment claims may proceed using the evidence, even though much of itpredated limitations period; plaintiff may not rely on other proffered evidencebecause to extent those actions raised claims, statute of limitations hadpassed.  125 F. Supp. 2d 1224.

  Defendant could not be liable in defendant's individualcapacity under paragraph (1)(A).  159 F. Supp. 2d 1211.

  Plaintiff with diabetes was not substantially limited in anymajor life activity and, therefore, was not disabled under this section or theADA.  161 F. Supp. 2d 1135.

  Plaintiff asserted discrimination claims against plaintiff'ssupervisor and employer, and the alleged parent company of the employer,pursuant to chapter 378 and federal law. Defendants' motion for partialdismissal 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.

  Defendant limited partner's motion to dismiss granted; amongother things, plaintiff did not allege sufficient facts in the second amendedcomplaint that would establish defendant's liability under paragraph (3).  351F. Supp. 2d 1025.

  Individuals are subject to liability under this section whenthey act as agents of an employer.  396 F. Supp. 2d 1138.

  Based on the plain language of §378-1 and paragraph (2),plaintiff may not proceed under paragraph (2) against defendant, an individualemployee.  Plaintiff stated no claim under paragraph (3), where plaintiffclaimed that defendant had incited, compelled, or coerced defendant intodiscriminating.  405 F. Supp. 2d 1225.

  Summary judgment granted for defendants (plaintiff's formeremployer and former supervisor) regarding plaintiff's state law sexualharassment claim brought pursuant to this section, where plaintiff did not meetthe statutory filing deadline pursuant to chapter 378 or the tort statute oflimitations for the claim.  468 F. Supp. 2d 1210.

  The "single-filing" or "piggyback" ruleapplied under Hawaii law, where the "dual-filed" equal employmentopportunity commission administrative complaints of four plaintiffs-intervenorswere filed after the 180-day deadline in §368-11(c) and the plaintiffs-intervenorssought to "piggyback" on the timely administrative complaints ofthree other plaintiffs-intervenors.  504 F. Supp. 2d 1008.

  Where plaintiffs-intervenors' intentional infliction ofemotional distress/negligent infliction of emotional distress claims werepremised on a violation of this section, which provides a nonnegotiable stateright, and the alleged conduct at issue involved discrimination on the basis ofnational origin and religion, the claims were not preempted by §301 of theLabor Management Relations Act.  535 F. Supp. 2d 1149.

  Violated by company policy requiring termination of personmarried to someone in same department unless termination falls under exceptionin §378-3.  72 H. 350, 816 P.2d 302.

  Defendant's policy prohibiting persons related by blood ormarriage from working in the same department, as applied to plaintiff, violatedplain language and purpose of this section, unless the termination fell withinone of the exceptions in §378-3.  76 H. 454, 879 P.2d 1037.

  In action alleging unlawful discharge in violation of thissection, time for filing administrative complaint begins to run on date thatemployee is actually discharged, that is, on date that employment terminates. 76 H. 454, 879 P.2d 1037.

  Where record contained numerous instances of both physicaland verbal conduct of a sexual nature by doctor towards complainant and others,complainant never solicited or incited doctor's conduct, and conduct had effectof creating an intimidating, hostile, and offensive work environment, there wassufficient evidence to support commission's determination that doctor violatedparagraph (1)(A) and Hawaii administrative rule §12-46-109(a)(3).  88 H. 10,960 P.2d 1218.

  Based on definition of "employer" in §378-1,legislature intended all employers, regardless of size, to be subject to theprovisions of this chapter, including paragraph (1)(A).  89 H. 269, 971 P.2d1104.

  Employer's policy of denying any extended leave duringemployee's first year of employment violated Hawaii administrative rule §12-46-108,which was adopted to enforce the legislative mandate of paragraph (1)(A) andHawaii's constitutional prohibition against sex discrimination in the exerciseof a person's civil rights in employment.  89 H. 269, 971 P.2d 1104.

  Where plaintiff in age discrimination suit did not meetplaintiff's burden of establishing that defendant's articulated reason fortaking adverse employment action against plaintiff was pretextual, andplaintiff did not give any other evidence that would give rise to a genuineissue of material fact, trial court properly granted summary judgment.  94 H.368, 14 P.3d 1049.

  A compensation discrimination claim under paragraph (1) mustsatisfy the following three-part test:  (1) plaintiff must first establish aprima facie case of discrimination; (2) defendant must then provide alegitimate, nondiscriminatory reason for the pay differences; and (3) ifdefendant articulates such a reason, plaintiff must then show that the reasongiven by defendant is pretexual.  96 H. 408, 32 P.3d 52.

  A retaliation claim under paragraph (2) is subject to athree-part test:  (1) plaintiff must first establish a prima facie case ofretaliation; (2) defendant must then provide a legitimate, nondiscriminatoryreason for the adverse employment action; and (3) if defendant articulates sucha reason, plaintiff must then show that the reason given by defendant ispretexual.  96 H. 408, 32 P.3d 52.

  To establish a "hostile environment" sexualharassment claim, claimant must show that he or she was subjected to sexualadvances, requests for sexual favors, or other verbal or physical conduct orvisual forms of harassment of a sexual nature; the conduct was unwelcome,severe or pervasive, and had the purpose or effect of either unreasonablyinterfering with claimant's work performance or creating an intimidating,hostile, or offensive work environment; that claimant actually perceived theconduct as having such purpose or effect; and claimant's perception wasobjectively reasonable to a person of claimant's gender in same position.  97H. 376, 38 P.3d 95.

  Plaintiff was, as a matter of law, unable to maintain a sexdiscrimination claim based on retaliation under paragraph (2) where allegationsdescribed by plaintiff did not involve any discrimination based on sex, andplaintiff clarified that female co-worker's conduct created a hostile workenvironment not only for plaintiff, but for plaintiff's staff, which includedboth males and females.  100 H. 149, 58 P.3d 1196.

  Where co-worker sexually assaulted employee by grabbingemployee's buttocks, conduct was sufficiently severe to constitute actionablesexual harassment; trial court erred in granting summary judgment for employerwhere there were genuine issues of material fact as to whether employer'sresponse to buttock-grabbing incident was reasonably calculated to endco-worker's harassment.  104 H. 423, 91 P.3d 505.

  Trial court correctly ruled that appellant was precluded frombringing a claim of gender discrimination under this section where, under thecircumstances, gender discrimination alleged in the civil complaint could notbe said to be "consistent with appellant's original theory of thecase" as submitted to the Hawaii civil rights commission.  105 H. 462, 99P.3d 1046.

  Trial court properly granted summary judgment where appellantfailed to establish a prima facie showing of a violation of this section,either on a theory of pattern or practice discrimination or of disparatetreatment age discrimination.  105 H. 462, 99 P.3d 1046.

  An employee may bring action against employer for intentionalinfliction of emotional distress caused by discrimination in violation of thissection, and this action is not barred by exclusivity provision of §386-5.  87H. 57 (App.), 951 P.2d 507.

  Where unclear from record that appropriate elements ofdiscriminatory employment discharge claim based on race or ancestry under thissection were considered, summary judgment improper.  87 H. 57 (App.), 951 P.2d507.

  Mentioned:  800 F. Supp. 882.

  Where plaintiff's disability prevented plaintiff from beingqualified to perform the essential functions of the ACO IV (prison guard)position, with or without reasonable accommodation, plaintiff failed toestablish a prima facie case that plaintiff had lost plaintiff's position dueto disability discrimination; also, because plaintiff could not show thatplaintiff was qualified for the ACO IV position, plaintiff also failed toestablish a prima facie case that plaintiff had lost plaintiff's position dueto race or gender discrimination under this section.  119 H. 288 (App.), 196P.3d 290.