§378-5  Remedies.  (a)  The commission may 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 other remedies as provided under chapter 368, which in the judgment of the commission, will effectuate the purpose of this part, including a requirement for reporting on the manner of compliance.

     (b)  In any civil action brought under this part, if the court finds that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this part, the court may enjoin the respondent from engaging in such unlawful discriminatory practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement, hiring, or upgrading of employees, with or without backpay, or restoration of membership in any respondent labor organization, or any other equitable relief the court deems appropriate.  Backpay liability shall not accrue from a date more than two years prior to the filing of the complaint with the commission.

     (c)  In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of any nature and reasonable 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 to appropriate equitable remedies; it did not authorize recovery of either compensatory or punitive damages, both of which were traditional legal remedies.  76 H. 454, 879 P.2d 1037 (1994).

  Chapter 386 does not bar relief on claims filed with the commission.  85 H. 7, 936 P.2d 643 (1997).

  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).

  Satisfaction of judgment did not bar plaintiff's claim for attorney's fees under this section.  87 H. 86, 952 P.2d 374 (1997).

  Unemployment benefits should not be deducted from awards of back pay under Hawaii’s employment discrimination law; thus, trial court did not have discretion to reduce back pay award by the amount of unemployment benefits received by employee.  89 H. 269, 971 P.2d 1104 (1999).

  Hawaii courts should be given discretion to enhance the lodestar fee when an attorney has been retained on a contingency fee basis; a "reasonable fee" under Hawaii fee-shifting statutes is an amount of fees that "would attract competent counsel," in light of all the circumstances, and that under certain circumstances the lodestar fee may be multiplied by a factor to achieve a "reasonable" award of fees.  96 H. 408, 32 P.3d 52 (2001).

  Where a court awards attorney's fees pursuant to fee-shifting statutes in cases involving contingency fee arrangements, a trial judge should not be limited by the contingency fee arrangement between a plaintiff and his or her counsel in determining a reasonable fee; plaintiff is thus not necessarily barred from recovery of a doubled lodestar fee.  96 H. 408, 32 P.3d 52 (2001).

  Where appellate court's judgment only permitted plaintiff to retry plaintiff's case, plaintiff had not established that discrimination had occurred, and plaintiff was legally in the same position as before trial, plaintiff had not been awarded a "judgment" within the meaning of subsection (c) and was thus not entitled to fees under this section.  99 H. 262, 54 P.3d 433 (2002).