Subchapter 4 (Sexual Discrimination)
SEX 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)
§12-46-105 Terms, conditions, and privileges
of employment. (a) Wages shall not be related to or based on the
sex of the employees.
(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)
§12-46-107 Hiring, retention, and accommodation
of pregnant females. (a) An employer shall not exclude from employment
a pregnant female applicant because of her pregnancy.
(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)
§12-46-110 Employment agencies. (a)
Employment agencies shall not:
(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)
§12-46-111 Labor organizations. (a)
Labor organizations shall not utilize information on applications for membership
which would signify the sex of an applicant.
(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)
|
