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

(1)  Repeal or affect any law, ordinance, orgovernment rule having the force and effect of law;

(2)  Prohibit or prevent the establishment andmaintenance of bona fide occupational qualifications reasonably necessary tothe normal operation of a particular business or enterprise, and that have asubstantial relationship to the functions and responsibilities of prospectiveor continued employment;

(3)  Prohibit or prevent an employer, employmentagency, or labor organization from refusing to hire, refer, or discharge anyindividual for reasons relating to the ability of the individual to perform thework in question;

(4)  Affect the operation of the terms or conditionsof any bona fide retirement, pension, employee benefit, or insurance plan thatis not intended to evade the purpose of this chapter; provided that thisexception shall not be construed to permit any employee plan to set a maximumage requirement for hiring or a mandatory retirement age;

(5)  Prohibit or prevent any religious ordenominational institution or organization, or any organization operated forcharitable or educational purposes, that is operated, supervised, or controlledby or in connection with a religious organization, from giving preference toindividuals of the same religion or denomination or from making a selectioncalculated to promote the religious principles for which the organization isestablished or maintained;

(6)  Conflict with or affect the application of securityregulations or rules in employment established by the United States or theState;

(7)  Require the employer to execute unreasonablestructural changes or expensive equipment alterations to accommodate theemployment of a person with a disability;

(8)  Prohibit or prevent the department of educationor private schools from considering criminal convictions in determining whethera prospective employee is suited to working in close proximity to children;

(9)  Prohibit or prevent any financial institution inwhich deposits are insured by a federal agency having jurisdiction over thefinancial institution from denying employment to or discharging from employmentany person who has been convicted of any criminal offense involving dishonestyor a breach of trust, unless it has the prior written consent of the federalagency having jurisdiction over the financial institution to hire or retain theperson;

(10)  Preclude any employee from bringing a civilaction for sexual harassment or sexual assault and infliction of emotionaldistress or invasion of privacy related thereto; provided that notwithstandingsection 368-12, the commission shall issue a right to sue on a complaint filedwith the commission if it determines that a civil action alleging similar factshas been filed in circuit court; or

(11)  Require the employer to accommodate the needs ofa nondisabled person associated with or related to a person with a disabilityin any way not required by Title I of the Americans with Disabilities Act. [L1981, c 94, pt of §2; am L 1984, c 85, §4; am L 1985, c 162, §1; am L 1990, c257, §3 and 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, 4; am L 1998, c 175, §2]

 

Attorney General Opinions

 

  Prohibits board of regents from adopting a mandatoryretirement policy.  Att. Gen. Op. 84-6.

 

Law Journals and Reviews

 

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

 

Case Notes

 

  Where employer’s decision to discharge pregnant employee andsubsequent refusal to reinstate employee was unrelated to employee’s ability toperform the job, bona fide occupational qualification defense under paragraph(2) was inapplicable to employer.  89 H. 269, 971 P.2d 1104.

  Mentioned:  800 F. Supp. 882.