§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 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 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; or



(8)  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 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). [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 2009, c 1, §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 75.



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



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



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



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



 



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.



  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.



  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.



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



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



  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.



  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.



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



  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.



  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.



  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.



  Individuals are subject to liability under this section when
they 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 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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  Mentioned:  800 F. Supp. 882.



  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.