2023 Hawaii Revised Statutes
Title 21. Labor and Industrial Relations
378. Employment Practices
- 378-1 to 378-10 REPEALED. §378-1 Definitions.
- 378-2 Discriminatory practices made unlawful; offenses defined.
- 378-2.2 Sexual harassment or sexual assault; nondisclosure agreements; prohibited.
- 378-2.3 Equal pay. (a) No employer shall discriminate between employees because of any protected category listed in section 378-2(a)(1) by paying wages to employees in an establishment at a rate less than the rate at which the employer pays wages to other employees in the establishment for substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions. Payment differentials resulting from: (1) A seniority system; (2) A merit system; (3) A system that measures earnings by quantity or quality of production; (4) A bona fide occupational qualification; or (5) A differential based on any other permissible factor other than any of the protected categories listed in section 378-2(a)(1), do not violate this section. (b) An employer shall not retaliate or discriminate against an employee for, nor prohibit an employee from, disclosing the employee's wages, discussing and inquiring about the wages of other employees, or aiding or encouraging other employees to exercise their rights under this section. [L 2005, c 35, §2; am L 2018, c 108, §3; am L 2023, c 203, §3]
- 378-2.4 Employer inquiries into and consideration of salary or wage history.
- 378-2.5 Employer inquiries into conviction record.
- 378-2.7 Employer inquiries into and consideration of credit history or credit report.
- 378-2.8 Job listing; disclosures.
- 378-3 Exceptions.
- 378-4 Enforcement jurisdiction.
- 378-5 Remedies.
- 378-6 Inspection; investigation; records.
- 378-7 to 378-9 REPEALED.
- 378-10 REPEALED.
- 378-26 Definitions.
- 378-26.5 Unlawful practices.
- 378-27 Exception.
- 378-27.5 Enforcement jurisdiction; complaint against unlawful practice.
- 378-28 Power of department to prevent unlawful practice.
- 378-28.5 Investigation; oaths; affidavits; subpoena; witnesses; immunities.
- 378-29 Rules.
- 378-29.3 Penalties.
- 378-31 Definitions.
- 378-32 Unlawful suspension, barring, discharge, withholding pay, demoting, or discrimination.
- 378-33 Complaint against unlawful suspension, discharge, or discrimination.
- 378-34 Proceeding and hearing on complaint.
- 378-35 Findings and order.
- 378-36 Judicial review.
- 378-37 Enforcement of order; judgment rendered thereon.
- 378-38 Rules and regulations.
- 378-61 Definitions.
- 378-62 Discharge of, threats to, or discrimination against employee for reporting violations of law.
- 378-63 Civil actions for injunctive relief or damages.
- 378-64 Remedies ordered by court.
- 378-65 Penalties for violations
- 378-66 Collective bargaining and confidentiality rights, takes precedence.
- 378-67 Compensation for employee participation in investigation, hearing, or inquiry.
- 378-68 Notices of employee protections and obligations.
- 378-69 Conflict with common law, precedence.
- 378-72 Leave of absence for domestic or sexual violence.
- 378-73 Relationship to other leaves.
- 378-74 Effect on employment and collective bargaining agreements; benefits.
For Eleventh Amendment purposes, a suit against a state official in that official's capacity is no different from a suit against the State itself; Hawaii has not consented to suit in federal court for claims under this chapter, and sovereign immunity thus barred plaintiff teacher's 378-2 claims against the Hawaii department of education and the department of education superintendent in the superintendent's official capacity. 855 F. Supp. 2d 1155 (2012).
Plaintiff's charges filed with the equal employment opportunity commission were deemed "dual-filed" with the Hawaii civil rights commission. Plaintiff timely filed the charge for claims under this chapter based on plaintiff's termination within the 180-day time limitation. 907 F. Supp. 2d 1143 (2012).
Genuine issue of material fact existed as to plaintiff's hostile work environment claims based on national origin and age, where plaintiff said that supervisor called plaintiff, among other things, "dumb Mexican" and "wetback", and referred to plaintiff and other older workers as "old bags" and "old clunkers". 927 F. Supp. 2d 978 (2013).
Section 12-46-175(d), Hawaii administrative rules, does not contradict or conflict with this chapter, and the Hawaii civil rights commission did not overstep its statutory authority in imposing strict liability on employers for the discriminatory actions of their supervisors; the Faragher affirmative defense is not applicable to this chapter. 133 H. 332, 328 P.3d 341 (2014).
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).
Exceptions enumerated by the Ninth Circuit Court of Appeals in Sosa v. Hiraoka apply when determining whether a plaintiff may proceed with a suit for violations of part I of this chapter against a party not named in a Hawaii civil rights commission charge; adopting the Ninth Circuit's precedent would be consistent with the legislature's intention of providing employment discrimination victims with the same remedies under state and federal law. 130 H. 325 (App.), 310 P.3d 1026 (2013).
