Federal & State Regulations | Discrimination - Other - Hawaii

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Summary of differences between federal and state regulations

The federally protected classes in employment discrimination include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

Hawaii identifies the following protected classes for purposes of unlawful employment discrimination:

Race,
Sex (including, but not limited to, pregnancy, childbirth, or related medical conditions; and gender identity or expression),
Sexual orientation,
Age,
Religion (all aspects of religious observance, practice, and belief),
Color,
Ancestry (means national origin or the physical, cultural, or linguistic characteristics of an ethnic group),
Disability (physical or mental impairment),
Marital status (means the state of being married or single),
Arrest and court record,
Reproductive health decision, and
Domestic or sexual violence victim status.

Hawaii also regulates discrimination on the basis of genetic information, credit history or credit report, and includes provisions for breastfeeding.

Terms defined

“Arrest and court record” includes any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority.

“Employer” means any person, including the state or any of its political subdivisions and any agent of such person, having one or more employees, but does not include the United States.

“Genetic information” means information about genes, gene products, hereditary susceptibility to disease, or inherited characteristics that may derive from the individual or family member.

“Sexual orientation” means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences. “Sexual orientation” shall not be construed to protect conduct otherwise proscribed by law.

"Reproductive health decision" includes the use of any legal drug, device, or medical service intended to prevent or terminate a pregnancy, or the use of any assisted reproductive technology.

“Gender identity or expression” includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.

Unlawful employment practices

The unlawful employment practices on the basis of marital status, arrest and court records, and sexual orientation under state law are the same as those for race, sex, age, religion, color, ancestry, or disability. For example, the state law includes protections in hiring, compensation, advertisements, and segregation.

Criminal conviction record

An employer may inquire about and consider an individual’s criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment provided that the conviction record bears a rational relationship to the duties and responsibilities of the position. Such inquiry must take place only after the prospective employee has received a conditional offer of employment. The offer may be withdrawn if a conviction record bears a rational relationship to the duties and responsibilities of the position.

If the employee or prospective employee claims that the period of incarceration was less than what is shown on the conviction record, an employer must provide an opportunity to present documentary evidence of a date of release to establish a period of incarceration that is shorter than the sentence imposed for the conviction.

Breastfeeding

State law requires that no employer prohibit an employee from expressing breastmilk during any meal period or other break period required by law or required by collective bargaining agreement. It is unlawful to refuse to hire or employ, or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace.

Credit history or report

It is unlawful for any employer to refuse to hire or employ; to bar or discharge from employment; or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual’s credit history or credit report, unless the information in the credit history or credit report directly relates to a bona fide occupational qualification.

An inquiry into and consideration of a prospective employee’s credit history or credit report may take place only after the prospective employee has received a conditional offer of employment, which may be withdrawn if information in the credit history or credit report is directly related to a bona fide occupational qualification.

The discrimination provisions on the basis of credit history do not apply to:

Employers who are expressly permitted or required to inquire into an individual’s credit history for employment purposes pursuant to any federal or state law;
Managerial or supervisory employees; and
Employers that are financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution.

Victims of domestic or sexual violence

Effective January 1, 2012, Hawaii prohibits discrimination against victims of domestic or sexual violence if the victim provides notice to the employer or the employer has actual knowledge of that status. An employer must make reasonable accommodations for an employee who is a victim of domestic or sexual violence, as long as the accommodation does not cause undue hardship, including:

Changing the contact information, such as telephone numbers, fax numbers, or email addresses, of the employee;