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

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

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

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

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

     (5)  Prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to individuals of the same religion or denomination or from making a selection calculated to promote the religious principles for which the organization is established or maintained;

     (6)  Conflict with or affect the application of security regulations or rules in employment established by the United States or the State;

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

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

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

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

    (11)  Require the employer to accommodate the needs of a nondisabled person associated with or related to a person with a disability in any way not required by title I of the Americans with Disabilities Act. [L 1981, c 94, pt of §2; am L 1984, c 85, §4; am L 1985, c 162, §1; am L 1990, c 257, §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 mandatory retirement policy.  Att. Gen. Op. 84-6.

Law Journals and Reviews

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

Case Notes

  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).

  Where employer’s decision to discharge pregnant employee and subsequent refusal to reinstate employee was unrelated to employee’s ability to perform the job, bona fide occupational qualification defense under paragraph (2) was inapplicable to employer.  89 H. 269, 971 P.2d 1104 (1999).

  The legislature's permission to allow an employer to refuse to hire, refer, or discharge an individual "for reasons related to the ability of the individual to perform the work in question" implies a clear contrast to reasons that have no relation to the ability to perform the job; the exceptions in this section do not permit an adverse employment decision to be based on reasons unrelated to the ability of the individual to perform the work in question.  135 H. 1, 346 P.3d 70 (2015).

  Mentioned:  800 F. Supp. 882 (1992).