§368-3 Powers and functions of commission.
The commission shall have the following powers and functions:
(1) To receive, investigate, and conciliate
complaints alleging any unlawful discriminatory practice under part I of
chapter 489, chapter 515, and part I of chapter 378, and complaints filed under
this chapter, and conduct proceedings on complaints alleging unlawful practices
where conciliatory efforts are inappropriate or unsuccessful;
(2) To hold hearings and make inquiries, as it deems
necessary, to carry out properly its functions and powers, and for the purpose
of these hearings and inquiries, to administer oaths and affirmations, conduct
depositions, compel the attendance of parties and witnesses and the production
of documents by the issuance of subpoenas, examine parties and witnesses under
oath, require answers to interrogatories, and delegate these powers to any
member of the commission or any person appointed by the commission for the
performance of its functions;
(3) To commence civil action in circuit court to seek
appropriate relief, including the enforcement of any commission order,
conciliation agreement, or predetermination settlement;
(4) To issue the right to sue to a complainant;
(5) To order appropriate legal and equitable relief
or affirmative action when a violation is found;
(6) To issue publications and results of
investigations and research that, in its judgment, will tend to promote
goodwill and minimize or eliminate discrimination in employment, housing, and
public accommodations;
(7) To submit annually to the governor and the
legislature a written report of its activities and recommendations for
administrative or statutory changes required to further the purposes of this
chapter;
(8) To appoint an executive director, deputy
executive director, attorneys, and hearings examiners who shall be exempt from
chapter 76, and investigators and other necessary support personnel who shall
be subject to chapter 76. Section 28-8.3 notwithstanding, an attorney employed
by the commission as a full-time staff member may represent the commission in
litigation, draft legal documents for the commission, provide other necessary
legal services to the commission, and shall not be deemed to be a deputy attorney
general; and
(9) To adopt rules under chapter 91. [L 1988, c 219,
pt of §1; am L 1989, c 386, §6; am L 1991, c 80, §1 and c 252, §2; am L Sp
1993, c 8, §53; am L 2000, c 253, §150; am L 2001, c 55, §17(1)]
Case Notes
Claim for negligent and/or intentional infliction of
emotional distress against Hawaii civil rights commission not barred under
§662-15(1), as acts of investigating complaint, instituting suit based on
finding of reasonable cause, and sending demand letter were part of routine
operations of commission and did not involve broad policy considerations
encompassed within the discretionary function exception. 88 H. 85, 962 P.2d
344 (1998).
The discretionary function exception in §662-15(1) is limited
to situations in which a government agent is engaged in the effectuation of
"broad public policy"; the investigation of a complaint by the Hawaii
civil rights commission, in and of itself, does not involve such
considerations; thus, a counterclaim for negligence in the performance of an
investigation is not barred by sovereign immunity. 88 H. 85, 962 P.2d 344
(1998).
Section 12-46-175(d), Hawaii administrative rules, does not
contradict or conflict with chapter 378, and the Hawaii civil rights commission
did not overstep its statutory authority in imposing strict liability on
employers for the discriminatory actions of their supervisors; the Faragher affirmative
defense is not applicable to chapter 378. 133 H. 332, 328 P.3d 341 (2014).
Notes of Decisions
Lales v. Wholesale Motors Co.., 328 P.3d 341 (Haw. 2014).
· cites it 13× “” HRS § 368-3. In addition, the legislature provided the HCRC with broad discretion to order remedies for violations of the anti- discrimination laws, including: “[h]iring, reinstatement, or upgrading of employees with or without back pay[,]” HRS § 368- 17(a)(1) (Supp.”
SCI Mgmt. Corp. v. Sims, 71 P.3d 389 (Haw. 2003).
· cites it 12× “Sixth, under the system now created by the majority, an employee may have to endure an administrative hearing, a de novo trial, and any subsequent appeals with all the attendant extra costs and delay before any disposition is obtained. The majority's approach will increase the…”
Tamashiro v. Dep't of Human Servs., 146 P.3d 103 (Haw. 2006).
· cites it 4× “, (1) HRS § 368-3 (Supp.2005) (requiring the civil rights commission to "adopt rules under [C]hapter 91") and HRS § 368-14 (1993) (providing that civil rights commission hearings to be conducted in accordance with Chapter 91); (2) HRS § 431:10B-113(a) (2005) (adopting Chapter…”
Derosa v. Ass'n of Apt. Owners of the Golf Villas, 185 F. Supp. 3d 1247 (D. Haw. 2016).
· cites it 2× “] On December 16, 2011, Plaintiff filed a discrimination complaint with the Hawai’i Civil Rights Commission (“HCRC”), pursuant to Haw. Rev. Stat. §§ 368-3 , 515-3, and with HUD, pursuant to the FHA (“2011 HCRC Complaint”).”
Takaki v. Allied Mach. Corp., 951 P.2d 507 (Haw. App. 1998).
· cites it 2× “By virtue of HRS § 368-3(1) (1993), the HCRC has jurisdiction over complaints alleging unlawful discriminatory practices as set forth in, among other statutory sections, part I of HRS chapter 378.”
Tseu Ex Rel. Hobbs v. Jeyte, 962 P.2d 344 (Haw. 1998).
· cites it 2× “HRS § 368-3 (1993) provides that the powers and functions of the commission include, inter alia: (1) To receive, investigate, and conciliate complaints alleging any unlawful discriminatory practice .”
Epileptic Found. v. City & Cnty. of Maui, 300 F. Supp. 2d 1003 (D. Haw. 2004).
· cites it 2× “§ 368-11(a), and authorizes the HCRC to investigate complaints, Haw.Rev.Stat. § 368-3 *1018 (1999 & Supp.”
Wigent v. Sci. Applications Int'l Corp., 19 F. Supp. 3d 1012 (D. Haw. 2014).
“On the other hand, Leídos may argue that the word “may” used twice in the direct supervision discussion would alert the reader that it involved a “potential” conclusion; and, further, that the entire report also was forwarded by a separate letter on November 3, 2011, so the full…”
Hawai'i Tech. Academy v. LE. (Haw. 2017).
· cites it 2× “…The General Provisions included HRS § 368-1 (Purpose and intent), HRS § 368-2 (Civil rights commission established), HRS § 368-3 (Powers and functions of commission), HRS § 368-4 (Records; reporting requirements), and HRS § 368-5 (Penalties). See id. Act 219 directed the…”
— Haw. Rev. Stat. § 368-3(1) — 1 case
Takaki v. Allied Mach. Corp., 951 P.2d 507 (Haw. App. 1998).
“By virtue of HRS § 368-3(1) (1993), the HCRC has jurisdiction over complaints alleging unlawful discriminatory practices as set forth in, among other statutory sections, part I of HRS chapter 378.”
— Haw. Rev. Stat. § 368-3(2) — 1 case
— Haw. Rev. Stat. § 368-3(5) — 2 cases
SCI Mgmt. Corp. v. Sims, 71 P.3d 389 (Haw. 2003).
“Sixth, under the system now created by the majority, an employee may have to endure an administrative hearing, a de novo trial, and any subsequent appeals with all the attendant extra costs and delay before any disposition is obtained. The majority's approach will increase the…”
— Haw. Rev. Stat. § 368-3(9) — 2 cases
Lales v. Wholesale Motors Co.., 328 P.3d 341 (Haw. 2014).
“” HRS § 368-3. In addition, the legislature provided the HCRC with broad discretion to order remedies for violations of the anti- discrimination laws, including: “[h]iring, reinstatement, or upgrading of employees with or without back pay[,]” HRS § 368- 17(a)(1) (Supp.”
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