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)
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