H.B. NO.



















SECTION 1. The legislature finds that the employment practices laws under sections 378-2, 378-2.3, 378-2.5, and 378‑2.7, Hawaii Revised Statutes, relate to discriminatory practices, unequal pay due to sex discrimination, and employer investigations into criminal conviction records and credit history, respectively. These sections were enacted to prohibit employment discrimination against individuals based upon protected categories but were not intended to prevent employers from taking employment action for reasons unrelated to the categories protected by the legislature in those sections.

A Hawaii Supreme Court decision, Adams v. CDM Media USA, Inc., prohibits an employer from carrying its burden of production to support that the employer legitimately refused to hire an applicant solely by alleging that the applicant did not meet a non-mandatory core job function that was stated in the posting for the open position. This ruling unreasonably narrows the basis upon which an employer can decline to hire applicants. This can result in costly litigation even when a non-discriminatory reason that is not based on a protected classification supports the disqualification of an applicant.

The purpose of this Act is to state the legislature's intent and to clarify that Hawaii's anti-discrimination law, as set forth in part I of chapter 378, Hawaii Revised Statutes, does not prohibit refusals to hire, refusals to refer, or terminations of employment that are not based on any prohibited discriminatory practices in section 378-2, unequal pay due to sex discrimination as prohibited in section 378‑2.3, criminal conviction record inquiries prohibited in section 378-2.5, and credit history inquiries prohibited in section 378-2.7, Hawaii Revised Statutes.

SECTION 2. Section 378-3, Hawaii Revised Statutes, is amended to read as follows:

"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, from refusing to refer, or [discharge] from discharging any individual for reasons relating to the ability of the individual to perform the work in question[;] or unrelated to any practices or actions prohibited by sections 378-2, 378-2.3, 378-2.5, or 378-2.7;

(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."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.








Report Title:

Employment Practices; Discriminatory Practices



Clarifies that Hawaii's anti-discrimination law does not prohibit or prevent an employer, employment agency, or labor organization from refusing to hire or refer or from discharging an individual for reasons unrelated to unlawful discriminatory practices.




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