Title VII does not address discrimination based on sexual orientation. This has not precluded employees from raising discrimination claims on other discrimination theories, including discrimination “because of sex.” For example. the United States Court of Appeals for the Ninth Circuit has held that an openly gay employee had a viable claim of sex discrimination “because of sex” under Title VII. In so doing, the Court did not determine that sexual orientation is covered by Title VII, but instead stated that the employee’s sexual orientation was irrelevant. The Court reasoned that a Title VII claim was viable because the employee was subjected to offensive sexual touching that created a hostile work environment, regardless of the reason the harassment was perpetrated.

The Ninth Circuit’s refusal to openly state that sexual orientation discrimination claims are covered by Title VII comports with conclusions reached by other jurisdictions, which have generally refused to allow employees to bring a sexual orientation discrimination or harassment claim under Title VII until the federal legislature amends the statute. This approach does not preclude employees from bringing same-sex harassment claims, however, as the U.S. Supreme Court has held that such claims can violate Title VII where discrimination occurred “because of sex”.

In 2006, the Hawaii Legislature passed legislation to prohibit discrimination in housing and public accommodation on the basis of sexual orientation, gender identity or expression. The provision defines “gender identity or expression” is defined as a person’s “actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth. The term includes transvestites, transsexuals, hermaphrodites, and other individuals who spend portions of their time in a gender other than that of birth.

The housing and public accommodation law also provides that patrons who perceive they have been discriminated against may file claims with the Hawaii Civil Rights Commission. Remedies available for this type of claim include: (a) a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is greater; (b) reasonable attorneys fees and costs; (c) injunctive relief; and (d) a civil penalty of $500.00 to $10,000.00 for each violation.

Gender identity was not a protected category under Hawai’i employment discrimination law until May 3, 2011. On that date Hawaii Governor Neil Abercrombie signed a new employment discrimination bill into law. Hawaii joined 12 other states to ban discrimination in the workplace on the basis of gender identity. Accordingly, transsexuals, transgendered individuals and transvestites are considered a protected class by Hawaii employment law.

In considering discrimination claims raised by transsexuals under federal law, many courts have reasoned that “[w]hile Title VII’ s prohibition of discrimination on the basis of sex includes sexual stereotypes the phrase ‘sex’ has not been interpreted to include sexual identity or gender identity disorders.” This area of law is continues to evolve, however, and it should be noted that other jurisdictions have allowed transgendered individuals to bring claims of sex discrimination under a sex stereotyping theory.

Related posts:

1. Hawaii Employment Law: Sexual Orientation Discrimination
2. Hawaii Law Amended to Prohibit Gender Identity Discrimination
3. Hawaii Sexual Harassment Law: Factors that Create a Hostile Work Environment

The purpose of the Hawaii Workers’ Compensation Act, HRS Chapter 386, is to provide compensation and medical care to employees who suffer an injury or disease “arising out of and in the course of employment.”

All Hawaii employers with employees must provide workers’ compensation coverage for their employees. Employers can provide coverage by either obtaining workers’ compensation insurance through an insurance carrier or obtaining approval for self-insured status.

Claims for compensation must be filed in writing within two years after the effects of the injury become manifest and within five years from the date of the accident. An injury is compensable under the workers’ compensation law if: (1) The injury arose out of employment, and (2) The injury was sustained in the course of employment.

Within seven working days after an employer has knowledge of an injury which causes an absence for more than one day or requires medical attention beyond first aid, the employer must report the injury on a WC-1 Report of Industrial Injury Form.

Unless rebutted by substantial contrary evidence, it is presumed under Hawaii law that: (1) The employee’s claim is for a covered work injury; (2) Sufficient notice of the injury was given to the employer; (3) The injury was not caused by the intoxication of the injured employee; and (4) The injury was not caused by the willful intention of the injured employee to injure her or himself.

In order to overcome or rebut the presumptions, the employer is required to offer up substantial evidence that the claim is not for a work-related injury.

Four types of benefits are available to employees who suffer occupational injuries or diseases: (a) indemnity benefits; (b) medical benefits, (c) vocational rehabilitation benefits; and (d) death benefits. If there is a dispute whether compensation is due or the amount that is due, either party may request a hearing. Hearings are scheduled before a hearing officer.

Within 60 days after a hearing, the hearings officer will issue a determination including findings of fact, decision and order. Within 20 days after the mailing of the award, a party may appeal the decision to the Labor and Industrial Relations Appeals Board for a de novo review of the award. Either party may appeal a final decision by the Appeals Board to the Intermediate Court of Appeals within 30 days.

Generally, recovery under Hawaii’s workers’ compensation law is an employee’s exclusive remedy for work-related injuries or diseases. However, an employee generally cannot sue his or her employer or a co-worker for damages resulting from occupational injuries caused by the employer’s or co-worker’s negligence. This does not necessarily preclude injuries resulting from intentional acts, for example.

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1. Hawaii Employment Law: Workers’ Compensation Basics
2. Hawaii Employment Law: Workers’ Compensation Law Basics
3. Hawaii Employment Policies and Procedures: Sick Leave Basics

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Specifically, Hawaii’s whistleblower statute provides: “§378-62 Discharge of, threats to, or discrimination against employee for reporting violations of law. An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:

• The employee, or a person acting on behalf of the employee, reports or is about to report to the employer, or reports or is about to report to a public body, verbally or in writing, a violation or a suspected violation of:

1. A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States; or

2. A contract executed by the State, a political subdivision of the State, or the United States,

• An employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.”

The statute of limitations for filing a claim is two (2) years. In addition seeking injunctive relief the plaintiff in a whistleblower case is entitled to a full range of remedies.

HRS § 378-64 provides:

“Remedies ordered by court. A court, in rendering a judgment in an action brought pursuant to this part, shall order, as the court considers appropriate, reinstatement of the employee, payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney’s fees and witness fees, if the court determines that the award is appropriate.”

The employer may face additional monetary penalties. HRS §378-65 provides that “a person who violates this part shall be fined not less than $500 nor more than $5,000 for each violation.”

Significantly, unlike many federal statutes individuals can be held liable for violations of Hawaii’s Employment Practices Act, including HRS § 378-62. HRS §378-1 defines an “employer” for purposes of liability to include “any person.” In addition, §378-2 (3) makes it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”

Both sections make clear that the statutory scheme is far reaching and presents significant risk exposure for employers that lack proper policies and training.

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A person receiving one or more of the three designations should be given the authorization in writing. The levels are as follows:

Level One: Personnel Records

Personnel records, whether in hard-copy form or in computer files, must remain secure at all times. There is no valid reason that any person should have access to an employee’s personnel file unless that individual is required to work with information in the file for a legitimate purpose, such as accessing an employee’s file for information on an accident for a workers’ compensation claim. Even in this situation, Hawaii and federal law require workers’ compensation records to be maintained separately from the employee’s human resources file.

Employees who are authorized to access personnel files should be required to sign confidentiality agreements requiring them to be responsible for maintaining the secrecy of any information they obtain from reading the files. Such agreement should require the employees to agree that they shall not release any information to any unauthorized individual. It should also clearly indicate that the employees understand that any breach of confidentiality or other release of information in the personnel files shall be grounds for immediate dismissal and/or prosecution, if authorized by law.

Level Two: Employment Tests (Excluding Drug Tests)

The results of employment testing, whether for initial employment, promotions or reassignments, should be retained in a separate, secure location and maintained by an employee or employees who is/are specifically authorized to perform this function, whether on a full- or part-time basis.

Level Three: Medical Records and Drug Tests Results

What is true for personnel files and employment tests is especially important for medical records and the results of drug testing. These records should be protected by extraordinary access limitations. In hard-copy form, medical records should be kept in separate, sealed folders with initials across the seal. No one should be permitted to review medical records, even those who are regularly required to post information in personnel folders or files. The only individuals who should be permitted to see medical records are those specifically authorized in writing by the top HR manager. Medical records should be filed in a separate location, away from personnel records and employment testing records, under the custody of specifically designated individuals. Depending on the circumstances, and the context in which the records are being maintained, such records might also need to be maintained consistent with HIPAA.

Computer Systems

Computer system access to personnel files should be coded and should have the same levels of access as discussed above.

Contract or Outsourced Work

The same standards for record access and control should apply to any work that is contracted to outside vendors. Such contractors should sign confidentiality agreements and have the same stringent system of record-keeping and controls that apply to in-house work.

Record Retention

One way to help prevent the unauthorized release of information is to strictly adhere to time limits for record retention. The two broad groups of regulations involving record retention are equal employment opportunity statutes and laws covering other subjects.

Equal Employment Opportunity Statutes – Generally, under U.S. Equal Employment Commission regulations personnel and employment records must be kept for one year. However, such records must be kept for one year following an employee’s involuntary termination. When a charge of discrimination is involved, records must be kept until the issue is resolved. Management should be take care to override the purging of documents, including those in electronic form where it knows or has reason to know that a legal dispute related to the records is or will be initiated.

Requirements Under Specific Laws – In addition to this general regulation, there are record requirements under specific laws:

Age Discrimination in Employment Act – Keep payroll records for three years. Keep employee benefit plans and written seniority or merit plans as long as they are in effect and one year following their termination.

Equal Pay Act – Keep records for two years that apply to wage rates, job evaluation results, documentation of reasons for wage differences of female and male employees, seniority and merit procedures and provisions in collective bargaining agreements. (See the Fair Labor Standards Act for records that must be maintained for three years).

Americans with Disabilities Act – Keep records for one year involving personnel actions such as new hires, promotions and disciplinary actions. Also keep for one year documentation on requests for reasonable accommodation. Keep for two years records pertaining to apprenticeship programs.

Rehabilitation Act of 1973 – Federal contractors must keep employment records for two years from the date of an employment decision or the making of a personnel record, whichever is later. Records include applications, job postings, job descriptions, employment offers, tests used, employment policies and procedures, interview notes and personnel records. Record retention is only one year for contractors who either have less than 150 employees or have contracts less than $150,000.

Executive Order 11246 – Record and retention requirements are the same as those under the Rehabilitation Act of 1973.

Vietnam Era Veterans’ Readjustment Assistance Act – Record and retention requirements are the same as those under the Rehabilitation Act of 1973.

Other Statutes:

Family and Medical Leave Act and Hawaii Family Leave Law – Keep records for three years for such documentation as any disputes about granting leave, dates and hours of leave taken, and written policies and procedures.

Occupational Safety and Health Act and Hawaii law – Keep records for five years after the calendar year ends to which the records apply. Records must be transferred to succeeding employer in the event the business is sold.

Labor-Management Reporting and Disclosure Act – Keep records for five years from the date of the report.

H-1B & H-1B1 Visa Program – Keep payroll records three years from the date they were created. Keep all other records required under the program for one year.

H-2A Visa Program – Keep records for three years after the date the work contract is completed.

H-2B Certification for Temporary Non Agricultural Work – Record retention requirements are the same as those under the H-1B & H-1B1 Visa Program.

McNamara-O-Hara Service Contract Act – Keep records for three years after work on the contract is completed.

Davis-Bacon & Related Acts – Keep records for three years after work on the contract is completed.

Copeland “Anti-Kickback” Act – Keep records for three years after work on the contract is completed.

Employee Polygraph Protection Act of 1988 – Keep records for three years after the polygraph is conducted. Records include employer statements explaining the justification for examining an employee in conjunction with an investigation prompted by an economic loss.

Fair Labor Standards Act – Keep records on non-exempt employees for three years that pertain to payrolls, collective bargaining agreements, sales and purchases. Keep for two years records used to compute non-exempt employee wages, such as time cards, work schedules and the related. Hawaii law requires wage records to be maintained for six years. Both federal and Hawaii law require a significant amount of information to be maintained.

Related posts:

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2. Jail Term for Hawaii Employee for Misusing Personal Health Information: Compliance with HIPAA Critical for Hawaii Employers
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House Bill 546 prohibits discrimination on the basis of gender identity or expression in employment and as a matter of public policy. While the Hawaii Civil Rights Commission had previously interpreted HRS Chapter 378 as protecting against discrimination in employment due to gender identity or expression, in the absence of explicit language in the statute courts were unwilling to view the statute in the same manner.

After Governor Abercrombie signed the bill, Hawaii State law, HRS Chapter 378, now prohibits employment discrimination and harassment based on “race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record.”

Under the new law “gender identity or expression,” now “includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.”

Thus, Hawaii law now prohibits discrimination or harassment in employment based on sexual orientation, defined as having a preference for heterosexuality, homosexuality, or bisexuality; having a history of any one or more of these preferences; or being identified with any one or more of these preference, in addition to gender identity or expression, e.g., transsexuals, transgendered individuals or transvestites.

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1. Hawaii Employment Law Basics: Sexual Orientation Discrimination and Hawaii Law
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Frequency of Pay

Under the statute, every employer must pay all wages due to its employees at least twice during each calendar month. Pay days must be designated in advance by the employer and may not be more than seven days after each pay period ends.

Employers wishing to establish regular pay days less frequently than semimonthly (but at least once a month) must apply with the Hawaii Department of Labor and Industrial Relations (“DLIR”) for permission to do so. Employers wishing to issue paychecks more than seven days, but within fifteen days, after the close of payroll period must also receive permission from the DLIR.

Payout After Job Termination

Employees that are terminated (regardless of the reason and whether it was for “cause”) must receive payment for all wages earned up to the date of termination, at the time of termination. However, if the termination occurs at a time and under conditions which prevent the employer from making immediate payment, the payment is due the next working day after the termination.

Employees who resign must receive payment for all wages earned as of the date of resignation, no later than the next regular payday. Payment can be made through regular channels or by mail if the employee requests. If the employee gives at least one pay period’s advance notice of resignation, the employer must pay all wages earned on the employee’s last day of work.

Suspension or Lay Off

If an employee is suspended as a result of a labor dispute (strike) or is laid off, the employer must pay all wages earned as of the date of the suspension or layoff to the employee no later than the next regular pay day. Payment can be made through regular channels or by mail if requested by the employee.

Pay Disputes

If there is a dispute between an employer and employee over the amount of wages due, the employer must pay, without condition and within the time limits set by law, all wages the employer believes are due. The employee is then entitled to take appropriate action for any balance he/she claims is still due.

An employer may not condition payment of any wages due on execution of a release by an employee. Furthermore, acceptance by an employee of any payment does not automatically constitute a release or accord and satisfaction with of any dispute between the employer and employee over amounts due.

Wage Deductions

Employers may not deduct, retain, or otherwise require to be paid, any compensation earned by an employee except where it is required by federal or state law, or court or authorized in writing by the employee.

The following may not be deducted from an employee’s wages (regardless of whether it is authorized) or regulated to be borne by the employee:
•Fines;
•Cash shortages in a common money till, cash box, or register used by two or more persons; or cash shortages in a money till, cash box, or register under sole control if the employee is not given an opportunity to account for all monies received at the start of a shift and all monies turned in at the end of a shift;
•Fines, penalties or replacement costs for breakage;
•Losses due to acceptance by an employee of checks which are subsequently dishonored if the employee is given discretion to accept or reject any check;
•Losses due to defective or faulty workmanship, lost or stolen property, damage to property, default of customer credit, or nonpayment for goods or service received by customer if such losses are not attributable to the employee’s willful or intentional disregard of his/her employer’s interests; or
•Medical or physical examinations or medical report expenses which accrue due to services rendered to an employee or prospective employee, where such examination or report is requested or required by the employer or prospective employer or required by any law or regulation of federal, state or local governments or agencies.

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1. Wage and Hour Basics for Hawaii Employers: Wrongful Withholding of Wages–Hawaii Law
2. Hawaii Employment Law: Workers’ Compensation Basics
3. Hawaii Employment Law Basics: Workers’ Compensation Benefits

CHILD CARE AND PREGNANCY RELATED CLAIMS

There has been a recent increase in child care and pregnancy-related claims filed by women. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.

Title VII makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”

There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.

Second, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.

HIRING AND PAY CLAIMS

Claims of discrimination in hiring and pay often arise where female employees perceive that the employer is treating them differently because they are female. The ability for an employer to consider gender in hiring is very narrow. Title VII and Hawaii law permit unequal treatment of employees on the basis of sex only where the employer can prove that sex is a necessary qualification for the specific job at issue. This means that employment decisions should generally be based upon qualifications as opposed to an employee’s sex.

The federal Equal Pay Act applies to employers of two or more employees when: (a) the employees are engaged in work involving interstate commerce or in the production of goods for interstate commerce; or (b) the employer is engaged in interstate commerce. Independent contractors are not considered employees under the Act.

As a general matter, violations of the Equal Pay Act also constitute violations of Title VII. Unlike Title VII, an Equal Pay Act violation need not be supported with discriminatory animus. An individual may sue an employer directly in federal district court for claimed violations. This private right of action is extinguished if the EEOC files suit against the employer.

The Equal Pay Act requires employers to pay male and female workers equal pay for work performed under similar work conditions and requiring equal skill, effort and responsibility. To establish a prima facie case under the Equal Pay Act, a plaintiff must show that the defendant paid higher wages to employees of the opposite sex for substantially equal work. Equal work does not require the job to be identical, but instead that there is substantial equality of skill, effort, responsibility, and working conditions. Substantial equality is established through a comparison of all components of work done by an employee, as opposed to individual components. It is important to note that the analysis focuses on equality of the job, as opposed to the equality of the employees’ respective skill sets.

Once a prima facie case is established, employers can avoid liability by asserting the applicability of one or more affirmative defenses. The Equal Pay Act permits employers to pay different wages pursuant to bona fide seniority systems, merit systems, and where wages are based on the quantity or quality of work produced, or most importantly where such difference is based “upon any factor other than sex.” Suits under the Equal Pay Act must be brought within two years of the claimed violation, unless they involve a willful violation, which has a three-year statute of limitations.

If an individual is successful in a claim under the Equal Pay Act, he or she may recover the amount of wages that would have been earned in the absence of discrimination. In addition, the individual may be awarded liquidated damages equal to the amount of back wages owed where the court finds that the employer acted in bad faith. The court can also enjoin the employer from committing future violations of the Act.

SEXUAL HARASSMENT AND TARGETED VERBAL ABUSE CLAIMS

The number of sexual harassment claims filed by women has actually decreased in the past few years. Ironically, the number of male on male harassment cases has increased significantly. Nevertheless, the biggest potential liability to companies remains harassment cases filed by women, especially given the reality that many times it is the male manager that is accused of harassing his subordinate female employee.

It is well-established now under federal law, Title VII, that in sexual harassment cases involving a supervisor where no tangible employment action is taken, the employer may avoid liability if it can prove as an affirmative defense that: (1) It exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of the employer’s anti-harassment policies and any preventive or corrective opportunities.

If the employer cannot establish that it took prompt and effective remedial action in responding to a harassment complaint, the employer may be unable to take advantage of the affirmative defense available under federal law. Further, an employee may successfully argue that the employee’s failure to invoke the company’s sexual harassment policy was reasonable if the employee can establish that the company had a history of failing to respond to such complaints. This could also prevent the employer from proving the elements of the affirmative defense.

Under Hawaii state law, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken. It is critical then, in both sexual harassment and targeted verbal abuse cases, that employers be able to establish the adequacy of their investigations.

Related posts:

1. Hawaii Employment Law: Sexual Orientation Discrimination
2. More Men Filing Sexual Harassment Claims
3. Hawaii Pregnancy Law Basics

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