§378-5 Remedies. (a) The commission
may order appropriate affirmative action, including, but not limited to,
hiring, reinstatement, or upgrading of employees, with or without backpay,
restoration to membership in any respondent labor organization, or other
remedies as provided under chapter 368, which in the judgment of the
commission, will effectuate the purpose of this part, including a requirement
for reporting on the manner of compliance.
(b) In any civil action brought under this
part, if the court finds that a respondent has engaged in or is engaging in any
unlawful discriminatory practice as defined in this part, the court may enjoin
the respondent from engaging in such unlawful discriminatory practice and order
such affirmative action as may be appropriate, which may include, but is not
limited to, reinstatement, hiring, or upgrading of employees, with or without
backpay, or restoration of membership in any respondent labor organization, or
any other equitable relief the court deems appropriate. Backpay liability
shall not accrue from a date more than two years prior to the filing of the
complaint with the commission.
(c) In any action brought under this part, the
court, in addition to any judgment awarded to the plaintiff or plaintiffs,
shall allow costs of action, including costs of fees of any nature and
reasonable attorney's fees, to be paid by the defendant. [L 1981, c 94, pt of
§2; am L 1989, c 386, §9]
Case Notes
Subsection (f) (1985) plainly limited available relief to
appropriate equitable remedies; it did not authorize recovery of either
compensatory or punitive damages, both of which were traditional legal
remedies. 76 H. 454, 879 P.2d 1037 (1994).
Chapter 386 does not bar relief on claims filed with the
commission. 85 H. 7, 936 P.2d 643 (1997).
Section 368-17 permits a court to award compensatory and
punitive damages in civil actions brought under part I of this chapter. 85 H.
7, 936 P.2d 643 (1997).
Satisfaction of judgment did not bar plaintiff's claim for
attorney's fees under this section. 87 H. 86, 952 P.2d 374 (1997).
Unemployment benefits should not be deducted from awards of
back pay under Hawaii’s employment discrimination law; thus, trial court did
not have discretion to reduce back pay award by the amount of unemployment
benefits received by employee. 89 H. 269, 971 P.2d 1104 (1999).
Hawaii courts should be given discretion to enhance the
lodestar fee when an attorney has been retained on a contingency fee basis; a
"reasonable fee" under Hawaii fee-shifting statutes is an amount of
fees that "would attract competent counsel," in light of all the
circumstances, and that under certain circumstances the lodestar fee may be
multiplied by a factor to achieve a "reasonable" award of fees. 96
H. 408, 32 P.3d 52 (2001).
Where a court awards attorney's fees pursuant to fee-shifting
statutes in cases involving contingency fee arrangements, a trial judge should
not be limited by the contingency fee arrangement between a plaintiff and his
or her counsel in determining a reasonable fee; plaintiff is thus not
necessarily barred from recovery of a doubled lodestar fee. 96 H. 408, 32 P.3d
52 (2001).
Where appellate court's judgment only permitted plaintiff to
retry plaintiff's case, plaintiff had not established that discrimination had
occurred, and plaintiff was legally in the same position as before trial,
plaintiff had not been awarded a "judgment" within the meaning of
subsection (c) and was thus not entitled to fees under this section. 99 H.
262, 54 P.3d 433 (2002).
Notes of Decisions
Schefke v. Reliable Collection Agency, Ltd., 32 P.3d 52 (Haw. 2001).
· cites it 34× “On May 7, 1997, Plaintiff moved for a statutory award of attorney’s fees, 11 costs, and prejudgment interest 12 under HRS § 378-5(c) (1993), 13 requesting that the amount of attorney’s fees should be equal to the “lodestar” amount 14 enhanced by a 2.”
Nelson v. Univ. of Hawai'i, 54 P.3d 433 (Haw. 2002).
· cites it 55× “HRS § 378-5, entitled “Remedies!,]” states: (a) The [Hawaii Civil Rights Commission] may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent…”
Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 879 P.2d 1037 (Haw. 1994).
· cites it 22× “Stouffer also argued that Ross's claims for compensatory and punitive damages under count I should be stricken because neither were available remedies under HRS § 378-5 (1985). On August 27, 1992, the circuit court filed an order granting the motion and, finding that there was…”
Collins v. South Seas Jeep Eagle, 952 P.2d 374 (Haw. 1997).
· cites it 11× “In this letter, Collins communicated to South Seas her position that, if her suit were successful, she would be entitled to attorneys’ fees and costs pursuant to HRS § 378-5(c). Collins asserted that her attorneys’ fees, as of the date of the letter, were $37,500.”
Gurrobat v. HTH Corp.., 323 P.3d 792 (Haw. 2014).
· cites it 4× “In addition, Defendants argued that Plaintiffs were time-barred from recovering damages for service charges paid before December 8, 2006 because pursuant to HRS § 378-5, claims for back pay were subject to a two-year statute of limitations.”
Gurrobat v. HTH Corp.., 346 P.3d 197 (Haw. 2015).
· cites it 6× “Plaintiffs in that case based their fee request on HRS § 378-5(c), a fee shifting statute that provides: In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of…”
Furukawa v. Honolulu Zoological Soc'y, 936 P.2d 643 (Haw. 1997).
· cites it 3× “The trial court held that the exclusivity provision of the workers’ compensation statute, HRS § 386-5 (1993), 6 barred *17 Furukawa from making a claim for emotional distress under either HRS § 368-17 (1993) 7 or HRS § 378-5 (1993). 8 In Ross, this court assumed, for the sake of…”
Takaki v. Allied Mach. Corp., 951 P.2d 507 (Haw. App. 1998).
· cites it 4× “The trial court excluded evidence of the plaintiffs emotional distress, on the ground that HRS § 386-5 barred him from making such a claim under either HRS § 368-17 (1993) 15 or HRS § 378-5 (1993). Id. at 16-17, 936 P.2d at 652-53 .”
Doe v. Doe, 34 P.3d 1059 (Haw. App. 2001).
· cites it 7× “Hawaii Revised Statutes § 378-5(c) is to encourage the enforcement of law that prohibits discriminatory employment practices as set forth in HRS §§ 578-1 through 578-10 (1993 & Supp.2000). Hawaii Revised Statutes § 388-11(c) is to encourage the enforcement of law requiring…”
Yang v. Abercrombie & Fitch Stores, 284 P.3d 946 (Haw. App. 2012).
· cites it 2× “The Hawai'i Supreme Court held that the circuit court erred in holding that the exclusivity provision in HRS § 386-5 barred Furukawa from making a claim for damages against his employer under either HRS § 368-17 (which allows legal remedies, including damages, to be awarded for…”
Mizuguchi v. Molokai Elec. Co., 411 F. Supp. 590 (D. Haw. 1976).
· cites it 2× “§ 378-5 2 , 378-6 3 , and 378-7 4 , the Department is authorized to issue a formal accusation to be served on the party charged with violating H.”
— Haw. Rev. Stat. § 378-5(c) — 7 cases
Schefke v. Reliable Collection Agency, Ltd., 32 P.3d 52 (Haw. 2001).
“On May 7, 1997, Plaintiff moved for a statutory award of attorney’s fees, 11 costs, and prejudgment interest 12 under HRS § 378-5(c) (1993), 13 requesting that the amount of attorney’s fees should be equal to the “lodestar” amount 14 enhanced by a 2.”
Nelson v. Univ. of Hawai'i, 54 P.3d 433 (Haw. 2002).
“HRS § 378-5, entitled “Remedies!,]” states: (a) The [Hawaii Civil Rights Commission] may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent…”
Collins v. South Seas Jeep Eagle, 952 P.2d 374 (Haw. 1997).
“In this letter, Collins communicated to South Seas her position that, if her suit were successful, she would be entitled to attorneys’ fees and costs pursuant to HRS § 378-5(c). Collins asserted that her attorneys’ fees, as of the date of the letter, were $37,500.”
Gurrobat v. HTH Corp.., 346 P.3d 197 (Haw. 2015).
“Plaintiffs in that case based their fee request on HRS § 378-5(c), a fee shifting statute that provides: In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of…”
Doe v. Doe, 34 P.3d 1059 (Haw. App. 2001).
“Hawaii Revised Statutes § 378-5(c) is to encourage the enforcement of law that prohibits discriminatory employment practices as set forth in HRS §§ 578-1 through 578-10 (1993 & Supp.2000). Hawaii Revised Statutes § 388-11(c) is to encourage the enforcement of law requiring…”
— Haw. Rev. Stat. § 378-5(e) — 2 cases
Nelson v. Univ. of Hawai'i, 54 P.3d 433 (Haw. 2002).
“HRS § 378-5, entitled “Remedies!,]” states: (a) The [Hawaii Civil Rights Commission] may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent…”
— Haw. Rev. Stat. § 378-5(e)(1) — 1 case
Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 879 P.2d 1037 (Haw. 1994).
“Stouffer also argued that Ross's claims for compensatory and punitive damages under count I should be stricken because neither were available remedies under HRS § 378-5 (1985). On August 27, 1992, the circuit court filed an order granting the motion and, finding that there was…”
— Haw. Rev. Stat. § 378-5(e)(l) — 1 case
Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 879 P.2d 1037 (Haw. 1994).
“Stouffer also argued that Ross's claims for compensatory and punitive damages under count I should be stricken because neither were available remedies under HRS § 378-5 (1985). On August 27, 1992, the circuit court filed an order granting the motion and, finding that there was…”
— Haw. Rev. Stat. § 378-5(f) — 1 case
Ross v. Stouffer Hotel Co. (Hawai'i) Ltd., 879 P.2d 1037 (Haw. 1994).
“Stouffer also argued that Ross's claims for compensatory and punitive damages under count I should be stricken because neither were available remedies under HRS § 378-5 (1985). On August 27, 1992, the circuit court filed an order granting the motion and, finding that there was…”
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