HAR 12-46 — PROCEDURE ON COMPLAINTS (Subchapter 1 to 20)

(a) The burden of proving that sex is a bona fide occupational qualification (BFOQ) rests upon the employer or other covered entity seeking the exception. (b) The BFOQ exception as to sex shall be strictly and narrowly construed. The commission believes that most jobs can be perf…

(a) Employers or other covered entities engaged in recruiting activity shall recruit employees of both sexes for all jobs. Employers or other covered entities placing advertisements indicating any sex preference, limitation, specification, or discrimination are in violation of ch…

(a) Tests of physical agility or strength shall not be used unless the test is administered pursuant to a BFOQ. No applicant or employee shall be refused the opportunity to demonstrate that he or she has the requisite strength or agility to perform the job in question. (b) Use of…

(a) Wages shall not be related to or based on the sex of the employees. (b) The employer shall not restrict one sex to certain job classifications. The employer shall make jobs available to all qualified employees in all classifications without regard to sex. (c) Employees of bot…

Females shall not be penalized in their terms or conditions of employment because they require time away from work on account of disability resulting from pregnancy, childbirth, or related medical conditions. Notes Haw. Code R. § 12-46-106 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-…

(a) An employer shall not exclude from employment a pregnant female applicant because of her pregnancy. (b) It is an unlawful discriminatory practice to discharge a female from employment or to penalize her in terms, conditions, and privileges of employment because she requires t…

(a) Disability due to and resulting from pregnancy, childbirth, or related medical conditions shall be considered by the employer to be justification for a leave, with or without pay, by the female employee for a reasonable period time. "Reasonable period of time" as used in this…

(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when: (1) Submission to that conduct is…

(a) The executive director shall dismiss the complaint: (1) If it is determined that the commission does not have jurisdiction over the complaint; (2) If it is determined after investigation that reasonable cause does not exist to believe that the alleged unlawful discriminatory …

(a) Employment agencies shall not: (1) Refer or refuse to refer applicants for jobs upon the basis of the sex of the applicant; (2) Maintain separate application forms or separate files for male and female jobs and job candidates; (3) Accept or process any job order which contain…

(a) Labor organizations shall not utilize information on applications for membership which would signify the sex of an applicant. (b) It shall be an unlawful discriminatory practice for a labor organization to indicate in any manner that an individual is ineligible for membership…

(a) After the filing of a complaint, the executive director shall investigate the charges contained in the complaint. In complaints alleging violations of chapter 515, HRS, investigations shall be commenced within thirty days after filing. (b) As part of its investigation, the ex…

Chapter 378, HRS, prohibits any employer or other covered entity from discriminating in employment because of the individual's marital status. Chapter 378, HRS, and policies apply to males and females alike. Notes Haw. Code R. § 12-46-121 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8…

The BFOQ exception as to marital status shall be strictly and narrowly construed. The burden of proving that marital status is a BFOQ rests upon the employer or other covered entity seeking to rely on the exception. The determination of the legality of an alleged BFOQ will be mad…

(a) An employer or other covered entity placing a help wanted advertisement indicating any marital status preference, limitation, or specification may request an advisory determination from the commission as to whether it is a violation of the statute. The commission shall give i…

An employment decision shall not be based on an individual's marital status. Notes Haw. Code R. § 12-46-124 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8) (Imp: HRS §§ 368-3, 378-2)

(a) It shall be unlawful for an employer or other covered entity to discriminate on the basis of marital status with regard to wages, job duties, fringe benefits, or other terms, conditions, and privileges of employment. (b) It is violation of chapter 378, HRS, for an employer to…

Notes Haw. Code R. §§ 12-46-127 to 12-46-130

(a) At any time after the filing of a complaint, but prior to the issuance of a determination, the executive director may encourage the parties to resolve the complaint through a predetermination settlement. (b) If the complainant and the respondent agree to the terms of settleme…

Chapter 378, HRS, prohibits any employer or other covered entity from discriminating in employment because of a person's age, except where age is a bona fide occupational qualification (BFOQ). Notes Haw. Code R. § 12-46-131 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8) (Imp: HRS §§ …

(a) Whether occupational qualifications will be deemed to be "bona fide" to a specific job and "reasonably necessary to the normal operation of the particular business" shall be determined on the basis of all the pertinent facts surrounding each particular situation. This concept…

(a) Where an employer or other covered entity, as a part of its recruitment process, advertises job openings through the media, employment agencies, posting of notices, or through other means, it is discrimination on the basis of age for the employer to express or cause to be exp…

(a) It is unlawful for an employer or other covered entity to discriminate in employment by giving preference because of age. Thus, if two people of different ages apply for the same position, the employer or other covered entity may not lawfully turn down either one on the basis…

It is discrimination on the basis of age for any employer or other covered entity to require an applicant or employee who is within a certain age group to undergo a physical or medical examination to determine whether or not the applicant or employee meets the job-related physica…

An employer may observe the terms of any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of chapter 378, HRS, in regards to age discrimination. However, no benefit plan shall be used as a reason fo…

(a) Before April 30, 1984, nothing in chapter 378, HRS, was deemed to affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan. This authorized involuntary retirement regardless of age provided that the retirement i…

(a) It shall not be unlawful for an employer or other covered entity to observe the terms of a bona fide seniority system which is not a subterfuge to evade the purposes of chapter 378, HRS. (b) A seniority system which gives those with longer service lesser rights and results in…

Any reduction in work force that causes a wholesale discharge of older workers for no apparent rational reason other than age is a violation of chapter 378, HRS. An employer may not justify such a reduction on the basis that older employees are paid more than younger employees. N…

(a) When the executive director finds reasonable cause to believe that an unlawful discriminatory practice has occurred or is occurring, the commission's executive director shall notify the parties of this determination. For complaints alleging violations of chapter 515, HRS, the…

(a) In attempting to conciliate a case after a determination of reasonable cause has been made, the executive director shall endeavor to achieve a resolution of all violations found and to obtain agreement that the respondent shall eliminate the unlawful discriminatory practice a…

Chapter 378, HRS, prohibits any employer or other covered entity from discriminating in employment because of a person's religion. This subchapter serves as a standard for determining whether employment policies concerning an employee's religious belief conform with the basic pur…

(a) It is a violation of chapter 378, HRS, for an employer or other covered entity to: (1) Ask about an applicant's religious affiliation; (2) Ask if an applicant attends religious services or a house of worship; or (3) Ask an applicant any questions that might indicate or identi…

(a) An employer shall not permit an applicant's religion or the need for religious accommodation to affect in any way its decision to hire the applicant, unless the employer can demonstrate that it cannot reasonably accommodate the applicant's religious practices without undue ha…

(a) After an employee or prospective employee notifies the employer or other covered entity of his or her need for a religious accommodation, the employer or other covered entity shall reasonably accommodate the individual's religious practices. A refusal to accommodate is justif…

Employees and prospective employees most frequently request an accommodation because their religious practices conflict with their work schedules or work assignments. The following alternatives are ways of accommodating the conflict between work schedules and religious practices …

Some collective bargaining agreements include a provision that each employee must join the labor organization or pay the labor organization a sum equivalent to dues. When an employee's religious practices do not permit compliance with such a provision, the labor organization shal…

(a) The employer or other covered entity has the burden of proving that an undue hardship renders unreasonable the required accommodations to the religious needs of the individual. (b) An employer may assert undue hardship to justify a refusal to accommodate an employee's need to…

(a) Proof of a respondent's compliance with the applicable chapter or part of HRS in accordance with the terms of the predetermination settlement, conciliation agreement, or order shall be obtained by the commission's executive director before the case is closed. (b) In order to …

(a) If the commission's executive director has been unable to eliminate the alleged unlawful discriminatory practice through conference, conciliation, and persuasion within one hundred eighty days of the filing of a complaint alleging violations of chapters 368, 378, or 489, HRS,…

(a) Chapter 378, HRS, prohibits any employer or covered entity from discriminating in employment because of ancestry, except where ancestry is a bona fide occupational qualification. The commission defines ancestry discrimination broadly and will examine with particular concern c…

(a) The BFOQ exception as to ancestry shall be strictly and narrowly construed. (b) The burden of proving that ancestry is a BFOQ rests upon the employer or other covered entity seeking the exception. Notes Haw. Code R. § 12-46-172 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8) (Imp:…

It shall be an unlawful discriminatory practice where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of ancestry. Notes Haw. Code R. § 12-46-173 [Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8) (Imp: HRS §§ 368-3, 378-2)…

(a) Any rule requiring employees to speak only English or other specific language at all times in the work place, including work breaks, shall be considered a violation of chapter 378, HRS. (b) An employer may have a rule requiring that employees speak only English at certain tim…

(a) Harassment on the basis of ancestry is a violation of chapter 378, HRS. (b) Ethnic slurs and other verbal or physical conduct relating to an individual's ancestry constitute harassment when this conduct: (1) Has the purpose or effect of creating an intimidating, hostile, or o…

(a) Any test, requirement, or selection procedure which has an adverse impact or involves disparate treatment on the basis of ancestry is a violation of chapter 378, HRS. (b) Because height and weight requirements tend to exclude individuals on the basis of ancestry, they shall n…

(a) An employer or other covered entity shall recruit employees of all ancestries for all jobs. An employer or other covered entity placing advertisements indicating specific language requirement is in violation of chapter 378, HRS, unless it is a BFOQ for the particular job invo…

A proceeding shall commence by the appointment of a hearings examiner either fifteen days after service of the final conciliation demand or after the expiration of any continuation of conciliation efforts granted pursuant to section 12-46-17. The hearings examiner shall docket th…