Hawaii Administrative Rules 6
Subchapter 6 (Age Discrimination)
§12-46-131 General policy. Chapter 378, HRS, prohibits any employer or other covered entity from discriminating in employment because of a person’s age, except where age is a bona fide occupational qualification (BFOQ). [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2, 378-3)
§12-46-132 Bona fide occupational qualification (BFOQ). (a) Whether occupational qualifications will be deemed to be “bona fide” to a specific job and “reasonably necessary to the normal operation of the particular business” shall be determined on the basis of all the pertinent facts surrounding each particular situation. This concept of a BFOQ shall have limited scope and application, and shall be narrowly construed.
(b) An employer or other covered entity asserting a BFOQ defense has the burden of proving that:
(1) The age limit is reasonably necessary to the essence of the business; and either
(2) All or substantially all individuals excluded from the job involved are in fact disqualified; or
(3) Some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.
If the employer or other covered entity’s objective in asserting a BFOQ is the goal of public safety, the employer or covered entity shall prove that the challenged practice does in fact effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact.
(c) An age requirement specified by law, rule, or regulation, shall be considered a BFOQ where the requirement is related to the work which the employee must perform.[Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-3)
§12-46-133 Pre-employment practices. (a) Where an employer or other covered entity, as a part of its recruitment process, advertises job openings through the media, employment agencies, posting of notices, or through other means, it is discrimination on the basis of age for the employer to express or cause to be expressed a preference for individuals of a particular age or range of ages unless there is a BFOQ for the position. Phrases such as “young”, “college student”, “girl”, “boy”, “recent college graduate”, “retired person”, supplement your pension”, or others of a similar nature are prohibited unless there is a BFOQ for the position.
(b) No newspaper or other publication published within the State shall accept, publish, print, or otherwise cause to be advertised any notice of an employment opportunity from an employer or other covered entity containing any indication of a preference, limitation, or specification based on age, unless the newspaper of publication has obtained the approval of the department indicating that the preference, limitation, or specification is a BFOQ.
(c) Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to age shall be unlawful unless based on a BFOQ. An applicant shall not be:
(1) Asked his or her age or date of birth; or
(2) Required to produce proof of age in the form of a birth certificate or baptismal record.
(d) Nothing in subsection (c) shall be construed to prohibit:
(1) Any inquiry as to whether or not the applicant meets the minimum age requirement set by statute or rule. If the applicant is under eighteen years of age, the employer may require proof of age in the form of an employment certificate or certificate of age; or
(2) An employer, after an applicant has been hired, to inquire as to the applicant’s age where those inquiries serve legitimate record-keeping purposes. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-134 Employee selection. (a) It is unlawful for an employer or other covered entity to discriminate in employment by giving preference because of age. Thus, if two people of different ages apply for the same position, the employer or other covered entity may not lawfully turn down either one on the basis of age but shall make the decision on the basis of some other factor.
(b) Nothing in this section shall be construed to preclude an employer from selecting from among all applicants an individual who is in fact better qualified for a position over one who is less qualified or from hiring an individual on the basis of experience and training superior to other applicants. [Eff 12/31/90] (Auth: HRS §§368-3, 378-3) (Imp: HRS §§368-3, 378-2)
§12-46-135 Physical or medical examination of applicants and employees. It is discrimination on the basis of age for any employer or other covered entity to require an applicant or employee who is within a certain age group to undergo a physical or medical examination to determine whether or not the applicant or employee meets the job-related physical or medical standards when the examinations are not required of all applicants or employees. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-136 Bona fide employee benefit plan. An employer may observe the terms of any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of chapter 378, HRS, in regards to age discrimination. However, no benefit plan shall be used as a reason for not hiring or for terminating any individual on the basis of age. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-8)
§12-46-137 Prohibition of mandatory retirement. (a) Before April 30, 1984, nothing in chapter 378, HRS, was deemed to affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan. This authorized involuntary retirement regardless of age provided that the retirement is pursuant to the terms of a bona fide retirement or pension plan. The involuntary retirement provision had to be contained in a bona fide pension or retirement plan and be required by the terms of the plan and not be optional.
(b) Effective April 30, 1984, section 378-3(4), HRS, prohibits mandatory retirement by modifying the exception for bona fide pension and retirement plans. To allow time for the adjustment of existing collective bargaining agreements and other retirement and pension systems, section 378-3(4), HRS, provides a grace period of up to two years ending April 30, 1986, or until the termination of the plan or agreement, whichever occurs first.
(c) It is not the intent of Act 85, SLH 1984, to require other changes in a bargaining agreement or retirement and pension plan. An employer or other covered entity is not required to provide benefits which were not provided prior to the removal of mandatory retirement provisions from an employee retirement or pension plan.
(d) It shall not be unlawful for a plan to permit individuals to elect early retirement at a specified age at their own option. Nor is it unlawful for a plan to require early retirement for reasons other than age. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-3)
§12-46-138 Bona fide seniority systems. (a) It shall not be unlawful for an employer or other covered entity to observe the terms of a bona fide seniority system which is not a subterfuge to evade the purposes of chapter 378, HRS.
(b) A seniority system which gives those with longer service lesser rights and results in discharge or less favored treatment to those in certain age groups, depending upon the circumstances, may be a “subterfuge to evade the purposes” of chapter 378, HRS.
(c) Though a seniority system may be qualified by such factors as merit, capacity, or ability, any bona fide seniority system shall be based upon length of service as the primary criterion for the equitable allocation of available employment opportunities and prerogatives among younger and older workers.
(d) Unless the essential terms and conditions of an alleged seniority system have been communicated to the affected employees and can be shown to be applied uniformly to all of those affected, regardless of age, it will not be considered a bona fide seniority system within the meaning of chapter 378, HRS. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-139 Reduction in force. Any reduction in work force that causes a wholesale discharge of older workers for no apparent rational reason other than age is a violation of chapter 378, HRS. An employer may not justify such a reduction on the basis that older employees are paid more than younger employees. [Eff 12/31/90](Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)