Hawaii Administrative Rules 4
Subchapter 4 (Sexual Discrimination)
§12-46-101 General provisions. (a) Chapter 378, HRS, prohibits any employer or other covered entity from discriminating in employment because of sex except where sex is a bona fide occupational qualification (BFOQ). Chapter 378, HRS, and this subchapter apply to males and females alike.
(b) The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to a group. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-8)
§12-46-102 Bona fide occupational qualification (BFOQ). (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 performed equally well by a male or a female, and that individual differences rather than sex differences are the determining factors.
(c) An employer or other covered entity may make an inquiry of the commission as to whether sex is a BFOQ for a particular job. The commission shall give informal opinions in response to such inquiries.
(d) The following situations do not constitute BFOQ exceptions to chapter 378, HRS:
(1) The refusal to hire or promote a female because of her sex based on assumptions of the comparative employment characteristics of females in general, e.g., the assumption that the absence or turnover rate among females is higher than among males; or
(2) The refusal to hire or promote an individual based on stereotyped characterizations of the sexes, e.g., that males are less capable of assembling intricate equipment; that females are less capable of being aggressive salespersons; or
(3) The refusal to hire, refer, recommend, or consider for a position, or promote an individual because of preferences or sense of propriety of co-workers, the employer, client, or customer; or
(4) The fact that the employer may have to provide separate facilities because of a person’s sex will not justify discrimination under the BFOQ exception unless the expense would clearly be unreasonable.
(e) The following situations are recognized as those in which a distinction based on sex may be a bona fide occupational qualification:
(1) Where it is necessary for the purpose of authenticity or genuineness, e.g., an actor to play a male role or a female to model feminine apparel; or
(2) Where public morals demand that one sex be given preference over the other in performing a particular function, e.g., a masseuse to work at a women’s health club; a male to work as an attendant in a man’s washroom; a female to work as a fitter of feminine apparel.
(f) Employers or other covered entities shall assign job duties and make other reasonable accommodations so as to minimize the number of jobs for which sex is a BFOQ. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-3, 378-8)
§12-46-103 Pre-employment practices. (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 chapter 378, HRS, unless sex is a BFOQ for the particular position involved.
(b) It shall be unlawful for any publication or other media to separate listings of job openings into “male” and “female” classifications or use job titles which specify one sex.
(c) A pre-employment inquiry shall not ask “male—, female—” or “Mr., Mrs., Miss, Ms.” unless the inquiry is a BFOQ. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-104 Employee selection. (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 height or weight standards which discriminate against one sex or the other is unlawful unless pursuant to a BFOQ. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
(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 both sexes shall be treated equally in regard to all training programs, opportunities for promotions, and fringe benefits. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-106 Pregnancy, childbirth, and related medical conditions; general policy. 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.
[Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-8)
(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 time away from work for disability due to and resulting from pregnancy, childbirth, or related medical conditions.
(c) An employer shall make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-1, 378-2)
§12-46-108 Leave due to pregnancy, childbirth, or related medical conditions. (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 section shall be determined by the employee’s physician, with regard for the employee’s physical condition and the job requirements.
(b) The employer may request a doctor’s certificate estimating the length of leave and the estimated commencement and termination dates of leave required by the employee.
(c) A female employee shall be reinstated to her original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges. The employer may request, prior to the employee’s return, a medical certificate from the employee’s physician attesting to her physical condition and approving her return to work.
(d) Chapter 378, HRS, does not require any employer to grant paid or unpaid child care leave of absence. Any employer providing such leaves shall do so without regard to the sex of the employee applying for such leave. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-1, 378-2)
§12-46-109 Sexual harassment. (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 made either explicitly or implicitly a term or condition of an individual’s employment; or
(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or
(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.
(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.
(e) An employer may be responsible for the acts of non-employees, with respect to sexual harassment of employees at the workplace, where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the non-employees.
(f) Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
(g) Prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
(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 contains or expresses directly or indirectly any limitation, specification, preference, or discrimination as to sex, unless based on a BFOQ; and
(4) Solicit and interview applicants on the basis of sex unless sex is a BFOQ.
(b) Employment agencies which deal exclusively with one sex are engaged in an unlawful discriminatory practice, except to the extent that those agencies limit their services to furnishing employees for particular jobs for which sex is a BFOQ.
(c) An employment agency that receives a job order containing an unlawful sex specification shall share responsibility with the employer placing the job order if the agency fills the order knowing that sex specification is not a BFOQ. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
(b) It shall be an unlawful discriminatory practice for a labor organization to indicate in any manner that an individual is ineligible for membership because of sex or that there are different standards which are based on sex.
(c) Apprenticeship programs shall be open to both sexes in all jobs for which sex is not a BFOQ.
(d) A labor organization shall represent all members fairly without regard to sex. Female and male members shall be granted the same privileges, powers, rights, duties, and responsibilities.
(e) Labor organizations maintaining union hiring halls shall be bound by the rules applicable to employment agencies in section 12-46-110. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)