PART I.  [OLD] DISCRIMINATORY PRACTICES

     §§378-1 to 378-10  REPEALED.  L 1977, c 85, §2; L 1981, c 94, §2.

PART I.  DISCRIMINATORY PRACTICES

Cross References

  Civil rights commission, see chapter 368.

Law Journals and Reviews

  Sexual Harassment in the Workplace:  Remedies Available to Victims in Hawai`i.  15 UH L. Rev. 453 (1993).

  Caught in the Backdraft:  The Implications of Ricci v. DeStefano on Voluntary Compliance and Title VII.  32 UH L. Rev. 463 (2010).

  Real Men.  37 UH L. Rev. 107 (2015).

Case Notes

  Section 368-17 permits a court to award compensatory and punitive damages in civil actions brought under part I of this chapter.  85 H. 7, 936 P.2d 643 (1997).

  Plaintiff failed to establish a prima facie case of retaliation where the fifteen year span of time between plaintiff's 1985 discrimination complaint and the adverse employment action of the case was too long to permit a causal connection to be inferred between the protected activity and the adverse employment action.  119 H. 288 (App.), 196 P.3d 290 (2008).

     §378-1  Definitions.  As used herein:

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

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

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

     "Commission" means the civil rights commission.

     "Disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment.

     "Domestic or sexual violence victim" or "victim" means an individual who is the victim of domestic or sexual violence as defined in section 378-71.

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

     "Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into.  Employment does not include services by an individual employed as a domestic in the home of any person, except as provided in section 378-2(a)(9).

     "Employment agency" means any person engaged in the business of providing employment information, procuring employment for applicants, or providing employees for placement with employers upon request.

     "Family member" means, with respect to a certain individual, another individual related by blood to that individual.

     "Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.

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

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

     "Labor organization" means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.

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

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

     "Reproductive health decision" means the use or attempted use of any legal drug, device, or medical service intended to prevent or terminate a pregnancy, or the use or attempted use of any assisted reproductive technology.

     "Sexual orientation" means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences.  "Sexual orientation" shall not be construed 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; am L 1992, c 33, §5; am L 2002, c 217, §1; am L 2011, c 34, §3 and c 206, §1; am L 2013, c 248, §1; am L 2019, c 178, §1]

Law Journals and Reviews

  Privacy and Genetics:  Protecting Genetic Test Results in Hawai`i.  25 UH L. Rev. 449 (2003).

Case Notes

  Individuals are subject to liability under §378-2 when they act as agents of an employer.  396 F. Supp. 2d 1138 (2005).

  Based on the plain language of this section and §378-2(2), plaintiff may not proceed under §378-2(2) against defendant, an individual employee.  405 F. Supp. 2d 1225 (2005).

  The Hawaii supreme court in French did not demonstrate a clear attempt to keep Hawaii law distinct from the federal Americans with Disabilities Act (ADA) such that a claim under the Hawaii discrimination law raises issues sufficiently distinct from an ADA claim so as to prevent application of the first-to-file-rule.  728 F. Supp. 2d 1096 (2010).

  Based on the definition of "employer" in this section, legislature intended all employers, regardless of size, to be subject to the provisions of this chapter.  89 H. 269, 971 P.2d 1104 (1999).

  The issue of whether a plaintiff's major life activity is substantially limited must be resolved on a case-by-case basis; thus, the determination of whether the lifting restriction on employee was substantial required an individualized inquiry that was inappropriate for summary judgment.  105 H. 462, 99 P.3d 1046 (2004).

  Individual employees are not personally liable as "employers" for harassment and retaliation claims under §378-2(1)(A) and (2); by using the term "agent" in the definition of "employer", the legislature did nothing more than ensure that employers would be liable for the discriminatory conduct of their agents.  133 H. 332, 328 P.3d 341 (2014).