§378-5  Remedies.  (a)  The commissionmay order appropriate affirmative action, including, but not limited to,hiring, reinstatement, or upgrading of employees, with or without backpay,restoration to membership in any respondent labor organization, or otherremedies as provided under chapter 368, which in the judgment of thecommission, will effectuate the purpose of this part, including a requirementfor reporting on the manner of compliance.

(b)  In any civil action brought under thispart, if the court finds that a respondent has engaged in or is engaging in anyunlawful discriminatory practice as defined in this part, the court may enjointhe respondent from engaging in such unlawful discriminatory practice and ordersuch affirmative action as may be appropriate, which may include, but is notlimited to, reinstatement, hiring, or upgrading of employees, with or withoutbackpay, or restoration of membership in any respondent labor organization, orany other equitable relief the court deems appropriate.  Backpay liabilityshall not accrue from a date more than two years prior to the filing of thecomplaint with the commission.

(c)  In any action brought under this part, thecourt, in addition to any judgment awarded to the plaintiff or plaintiffs,shall allow costs of action, including costs of fees of any nature andreasonable attorney's fees, to be paid by the defendant. [L 1981, c 94, pt of§2; am L 1989, c 386, §9]

 

Case Notes

 

  Subsection (f) (1985) plainly limited available relief toappropriate equitable remedies; it did not authorize recovery of eithercompensatory or punitive damages, both of which were traditional legalremedies.  76 H. 454, 879 P.2d 1037.

  Chapter 386 does not bar relief on claims filed with thecommission.  85 H. 7, 936 P.2d 643.

  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.

  Satisfaction of judgment did not bar plaintiff's claim forattorney's fees under this section.  87 H. 86, 952 P.2d 374.

  Unemployment benefits should not be deducted from awards ofback pay under Hawaii’s employment discrimination law; thus, trial court didnot have discretion to reduce back pay award by the amount of unemploymentbenefits received by employee.  89 H. 269, 971 P.2d 1104.

  Hawaii courts should be given discretion to enhance thelodestar fee when an attorney has been retained on a contingency fee basis; a"reasonable fee" under Hawaii fee-shifting statutes is an amount offees that "would attract competent counsel," in light of all thecircumstances, and that under certain circumstances the lodestar fee may bemultiplied by a factor to achieve a "reasonable" award of fees.  96H. 408, 32 P.3d 52.

  Where a court awards attorney's fees pursuant to fee-shiftingstatutes in cases involving contingency fee arrangements, a trial judge shouldnot be limited by the contingency fee arrangement between a plaintiff and hisor her counsel in determining a reasonable fee; plaintiff is thus not necessarilybarred from recovery of a doubled lodestar fee.  96 H. 408, 32 P.3d 52.

  Where appellate court's judgment only permitted plaintiff toretry plaintiff's case, plaintiff had not established that discrimination hadoccurred, and plaintiff was legally in the same position as before trial,plaintiff had not been awarded a "judgment" within the meaning ofsubsection (c) and was thus not entitled to fees under this section.  99 H.262, 54 P.3d 433.