Hawaii Administrative Rules 8
Subchapter 8 (Marital Status Discrimination)
ANCESTRY DISCRIMINATION
§12-46-171 General policies. (a) Chapter 378, HRS, prohibits any employer or covered entity from discriminating in employment because of ancestry, except where ancestry is a bona fide occupational qualification. The commission defines ancestry discrimination broadly and will examine with particular concern charges alleging that individuals have been denied equal employment opportunity for reasons related to ancestry, such as:
(1) Marriage to or association with persons of an ancestral group;
(2) Membership in or association with an organization identified with or seeking to promote the interest of an ancestral group;
(3) Attendance or participation in schools, churches, temples, or mosques, generally used by persons of an ancestral group; and
(4) Because an individual’s name or spouse’s name is associated with an ancestral group.
(b) Chapter 378, HRS, is intended to eliminate covert as well as overt practices of discrimination, and the commission will therefore examine charges of unlawful discrimination principles, such as disparate treatment and adverse impact. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-8)
§12-46-172 Bona fide occupational qualification (BFOQ). (a) The BFOQ exception as to ancestry shall be strictly and narrowly construed.
(b) The burden of proving that ancestry is a BFOQ rests upon the employer or other covered entity seeking the exception. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-3)
§12-46-173 Citizenship requirements. It shall be an unlawful discriminatory practice where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of ancestry. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-174 Language. (a) Any rule requiring employees to speak only English or other specific language at all times in the work place, including work breaks, shall be considered a violation of chapter 378, HRS.
(b) An employer may have a rule requiring that employees speak only English at certain times where the employer can show that the rule is justified by business necessity.
(c) If an employer believes that it has a business necessity for a speak-English-only rule at certain times, the employer shall inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the commission shall consider the application of the rule as evidence of discrimination on the basis of ancestry.
(d) Discrimination on the basis of language, including speech peculiar to a certain ancestry, a foreign accent, vernacular language, and dialects within the same national group, shall be a violation of chapter 378, HRS, unless language is a BFOQ for the particular position involved. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-175 Harassment. (a) Harassment on the basis of ancestry is a violation of chapter 378, HRS.
(b) Ethnic slurs and other verbal or physical conduct relating to an individual’s ancestry constitute harassment when this conduct:
(1) Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
(2) Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
(3) Otherwise adversely affects an individual’s employment opportunity.
(c) The employer has an affirmative duty to maintain a working environment free of harassment on the basis of ancestry.
(d) An employer is responsible for its acts and those of its agents and supervisory employees with respect to harassment on the basis of ancestry regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer 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 acts in a supervisory or agency capacity.
(e) With respect to conduct between fellow employees, an employer shall be responsible for acts of harassment in the workplace on the basis of ancestry, where the employer, its agent, or supervisory employee, knows or should have known of the conduct, unless the employer can show that it took immediate and appropriate corrective action.
(f) An employer may be held responsible for acts of non-employees with respect to harassment of employees on the basis of ancestry, where the employer, its agent, or supervisory employee, 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 those non-employees. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-176 Employee selection. (a) Any test, requirement, or selection procedure which has an adverse impact or involves disparate treatment on the basis of ancestry is a violation of chapter 378, HRS.
(b) Because height and weight requirements tend to exclude individuals on the basis of ancestry, they shall not be used unless excepted as a BFOQ. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
§12-46-177 Pre-employment inquiries. (a) An employer or other covered entity shall recruit employees of all ancestries for all jobs. An employer or other covered entity placing advertisements indicating specific language requirement is in violation of chapter 378, HRS, unless it is a BFOQ for the particular job involved.
(b) A pre-employment interview or an employment application form shall not include questions or requests for information that would tend to disclose a person’s ancestry. Examples of such questions or requests for information are:
(1) “Of what country are you a citizen?”;
(2) Whether applicant is naturalized or native-born U.S. citizen;
(3) Requirement that applicant produce naturalization papers;
(4) Birthplace of applicant;
(5) Requirement that applicant submit proof of birth document prior to hiring;
(6) Applicant’s nationality, ancestry, national origin, descent, or parentage;
(7) Language commonly used by applicant;
(8) How applicant acquired the ability to read, write, or speak a foreign language; and
(9) Names of organizations to which the applicant belongs if that information would indicate through character or name the ancestry of the membership. [Eff 12/31/90] (Auth: HRS §§368-3, 378-8) (Imp: HRS §§368-3, 378-2)
