Chapter 378
Employment Practices
CHAPTER 378
EMPLOYMENT PRACTICES
Part I. Discriminatory Practices
Section
378-1 Definitions
378-2 Discriminatory practices made unlawful; offenses
defined
378-2.3 Equal pay; sex discrimination
378-2.5 Employer inquiries into conviction record
378-2.7 Employer inquiries into and consideration of credit
history or credit report
378-3 Exceptions
378-4 Enforcement jurisdiction
378-5 Remedies
378-6 Inspection; investigation; records
378-7 to 10 Repealed
Part II. Lie Detector Tests
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
Part III. Unlawful Suspension or Discharge
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
Part IV. Fair Representation
378-51 Action against labor organization, limitation
Part V. Whistleblowers’ Protection Act
A. General Provisions
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
B. Public Employees
378-70 Protected disclosure by a public employee
Part VI. Victims Protections
A. General Provisions
378-71 Definitions
B. Victims Leave
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
C. Reasonable Accommodations in the Workplace
378-81 Reasonable accommodations
378-82 Civil actions
Part VII. Opportunity to Express Milk
378-91 Definitions
378-92 Opportunity to express milk
378-93 Civil actions for injunctive relief or damages
Law Journals and Reviews
Federal Labor Law Preemption and Hawaii’s Work-Injury Discharge Law. 16 HBJ, no. 1, at 37 (1981).
Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawaii Supreme Court. 14 UH L. Rev. 189 (1992).
Caught in the Backdraft: The Implications of Ricci v. DeStefano on Voluntary Compliance and Title VII. 32 UH L. Rev. 463 (2010).
Case Notes
Does not bar common law remedies; exclusive remedy for constructive discharge claim based on sexual harassment. 634 F. Supp. 684 (1986).
If plaintiff was alleging public policy wrongful discharge claim based on Parnar v. Americana Hotels, Inc., and §378-32(2), plaintiff’s claim was barred, since this chapter provided sufficient remedy for its violation. 938 F. Supp. 1503 (1996).
Plaintiff’s resort to a possible common law action of violation of public policy barred, where plaintiff was making claims of retaliation through wrongful denial of promotion based upon § [sic] 378; that type of claim was analogous to a wrongful discharge claim and § [sic] 378 provided a sufficient remedy for retaliation. 75 F. Supp. 2d 1113 (1999).
Defendant’s countermotion for partial summary judgment denied as to claim premised under this chapter of the Hawaii Discriminatory Employment Practices Act sic, where defendant could be held individually liable under the HDEPA barring application of other defenses. 112 F. Supp. 2d 1041 (2000).
Plaintiff did not have to obtain a right to sue letter from Hawaii civil rights commission to bring plaintiff’s chapter 378 claims for sexual harassment. 159 F. Supp. 2d 1211 (2001).
Plaintiff failed to properly state a claim for relief under the Americans with Disabilities Act or this chapter, where plaintiff argued that reference to general “statutory civil rights” in the title of the second count of the complaint was sufficient. 284 F. Supp. 2d 1261 (2003).
Plaintiff asserted discrimination claims against plaintiff’s supervisor and employer, and the alleged parent company of the employer, pursuant to this chapter and federal law. Defendants’ motion for partial dismissal or alternatively, for partial summary judgment granted in part (e.g., claims based on national origin and aiding and abetting) and denied in part (e.g., claims based on color). 322 F. Supp. 2d 1101 (2004).
Where plaintiff asserted viable claims against defendants under 42 U.S.C. §1981, Title VII, and this chapter, and each of the statutes provided a sufficient remedy such that the court did not need to fashion any further remedy under the public policy exception, defendants’ motion for partial summary judgment granted on plaintiff’s claim for violation of public policy. 322 F. Supp. 2d 1101 (2004).
Plaintiff’s [chapters] 368 and 378 state law claims against the county were time-barred under §46-72, where plaintiff never provided the county written notice of plaintiff’s claim. 504 F. Supp. 2d 969 (2007).
Plaintiff could not state a claim for wrongful termination in violation of public policy based on the same conduct as alleged in plaintiff’s federal claims under Title VII of the Civil Rights Act of 1964 and state claims under this chapter because these statutes already provide a sufficient remedy. 721 F. Supp. 2d 947 (2010).
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).
Defendant employer’s motion for summary judgment granted on plaintiff’s allegation of termination in violation of public policy where plaintiff could not show that plaintiff’s opposition to defendant’s program was anything more than a disagreement with company management regarding an internal business decision. 760 F. Supp. 2d 1005 (2010).
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).
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).