§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, refer, or discharge any
individual for reasons relating to the ability of the individual to perform the
work in question;
(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. [L
1981, c 94, pt of §2; am L 1984, c 85, §4; am L 1985, c 162, §1; am L 1990, c
257, §3 and c 262, §2; am L 1992, c 33, §3 and c 275, §1; am L 1994, c 88, §2;
am L 1997, c 365, §§2, 4; am L 1998, c 175, §2]
Attorney General Opinions
Prohibits board of regents from adopting a mandatory
retirement policy. Att. Gen. Op. 84-6.
Law Journals and Reviews
Sexual Harassment in the Workplace: Remedies Available to
Victims in Hawai`i. 15 UH L. Rev. 453 (1993).
Case Notes
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).
Where employer’s decision to discharge pregnant employee and
subsequent refusal to reinstate employee was unrelated to employee’s ability to
perform the job, bona fide occupational qualification defense under paragraph
(2) was inapplicable to employer. 89 H. 269, 971 P.2d 1104 (1999).
The legislature's permission to allow an employer to refuse
to hire, refer, or discharge an individual "for reasons related to the
ability of the individual to perform the work in question" implies a clear
contrast to reasons that have no relation to the ability to perform the job;
the exceptions in this section do not permit an adverse employment decision to
be based on reasons unrelated to the ability of the individual to perform the
work in question. 135 H. 1, 346 P.3d 70 (2015).
Mentioned: 800 F. Supp. 882 (1992).
Notes of Decisions
Adams v. CDM Media USA, Inc., 346 P.3d 70 (Haw. 2015).
· cites it 127× “; (3) that plaintiff has 8 HRS § 378-3 provides, inter alia, that, the provisions of Part 1 of HRS Chapter 378 will not: repeal any law, prevent employers from establishing “bona fide occupational qualifications,” affect the operation of retirement plans, prohibit religious…”
Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 879 P.2d 1037 (Haw. 1994).
· cites it 40× “Ross I held that, unless it fit into one of the exceptions in HRS § 378-3 (1985), [3] Stouffer's discharge of Ross pursuant to its no-relatives policy violated HRS § 378-2, because it discriminated against Ross because of his marital status.”
Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006).
· cites it 33× “2d 1037,1041 (1994) (holding that termination of employment based upon any of the reasons set forth in section 378-2 is a violation of the statute, unless the termination falls within one of exceptions set forth in HRS § 378-3). Since 1981, three new exceptions have been added…”
Nelson v. Univ. of Hawai'i, 38 P.3d 95 (Haw. 2001).
· cites it 12× “Act 275, § 1 at 721. The legislative history confirms that the purpose of Act 275 was "to amend Chapters 378 and 386 .”
Wigent v. Sci. Applications Int'l Corp., 19 F. Supp. 3d 1012 (D. Haw. 2014).
· cites it 7× “§ 378-3.” Id. at 354, 816 P.2d 302 . Pursuant to the Ross decisions, it appears that SH-2 constitutes direct evidence of per se discrimination unless one of the exceptions under H.”
Furukawa v. Honolulu Zoological Soc'y, 936 P.2d 643 (Haw. 1997).
· cites it 2× “The legislature at the same time added HRS § 378-3(10), which excepts victims of sexual harassment and sexual assault from having to file discrimination complaints with the commission under HRS § 378-1.”
Ross v. Stouffer Hotel Co.(hawaii), 816 P.2d 302 (Haw. 1991).
· cites it 4× “We conclude that as a matter of law, the policy in question of terminating persons who marry other persons working in the same department violates HRS § 378-2 unless the termination falls within one of the exceptions in HRS § 378-3. On the record in this case, we are not…”
Mukaida v. Hawaii, 159 F. Supp. 2d 1211 (D. Haw. 2001).
· cites it 2× “Haw.Rev.Stat. § 378-3 (“Nothing in this part shall be deemed to .”
Hale v. Hawaii Publications, Inc., 468 F. Supp. 2d 1210 (D. Haw. 2006).
· cites it 2× “§ 378-3 was amended to include the following exception to Chapter 378: Nothing in this part shall be deemed to: (10) Preclude any employee from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion or privacy related…”
— Haw. Rev. Stat. § 378-3(1) — 1 case
Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006).
“2d 1037,1041 (1994) (holding that termination of employment based upon any of the reasons set forth in section 378-2 is a violation of the statute, unless the termination falls within one of exceptions set forth in HRS § 378-3). Since 1981, three new exceptions have been added…”
— Haw. Rev. Stat. § 378-3(10) — 6 cases
Nelson v. Univ. of Hawai'i, 38 P.3d 95 (Haw. 2001).
“Act 275, § 1 at 721. The legislative history confirms that the purpose of Act 275 was "to amend Chapters 378 and 386 .”
Furukawa v. Honolulu Zoological Soc'y, 936 P.2d 643 (Haw. 1997).
“The legislature at the same time added HRS § 378-3(10), which excepts victims of sexual harassment and sexual assault from having to file discrimination complaints with the commission under HRS § 378-1.”
— Haw. Rev. Stat. § 378-3(11) — 1 case
Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006).
“2d 1037,1041 (1994) (holding that termination of employment based upon any of the reasons set forth in section 378-2 is a violation of the statute, unless the termination falls within one of exceptions set forth in HRS § 378-3). Since 1981, three new exceptions have been added…”
— Haw. Rev. Stat. § 378-3(12) — 1 case
Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006).
“2d 1037,1041 (1994) (holding that termination of employment based upon any of the reasons set forth in section 378-2 is a violation of the statute, unless the termination falls within one of exceptions set forth in HRS § 378-3). Since 1981, three new exceptions have been added…”
— Haw. Rev. Stat. § 378-3(13) — 1 case
Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006).
“2d 1037,1041 (1994) (holding that termination of employment based upon any of the reasons set forth in section 378-2 is a violation of the statute, unless the termination falls within one of exceptions set forth in HRS § 378-3). Since 1981, three new exceptions have been added…”
— Haw. Rev. Stat. § 378-3(2) — 3 cases
— Haw. Rev. Stat. § 378-3(3) — 1 case
Adams v. CDM Media USA, Inc., 346 P.3d 70 (Haw. 2015).
“; (3) that plaintiff has 8 HRS § 378-3 provides, inter alia, that, the provisions of Part 1 of HRS Chapter 378 will not: repeal any law, prevent employers from establishing “bona fide occupational qualifications,” affect the operation of retirement plans, prohibit religious…”
— Haw. Rev. Stat. § 378-3(5) — 2 cases
Adams v. CDM Media USA, Inc., 346 P.3d 70 (Haw. 2015).
“; (3) that plaintiff has 8 HRS § 378-3 provides, inter alia, that, the provisions of Part 1 of HRS Chapter 378 will not: repeal any law, prevent employers from establishing “bona fide occupational qualifications,” affect the operation of retirement plans, prohibit religious…”
— Haw. Rev. Stat. § 378-3(7) — 1 case
Adams v. CDM Media USA, Inc., 346 P.3d 70 (Haw. 2015).
“; (3) that plaintiff has 8 HRS § 378-3 provides, inter alia, that, the provisions of Part 1 of HRS Chapter 378 will not: repeal any law, prevent employers from establishing “bona fide occupational qualifications,” affect the operation of retirement plans, prohibit religious…”
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