REPORT TITLE:
Employment Discrimination


DESCRIPTION:
Makes it an unlawful discriminatory practice for employers to
condition employment or hiring upon an employee's relinquishment
of the right to initiate or participate in an investigation or
proceeding under the civil rights commission law, or any other
right under that law or the employment practices law.  Allows
employers and employees or prospective employees to enter into
knowing, voluntary arbitration agreements that are supported by
due consideration over and above employment or continued
employment, without violating the discriminatory practices laws.
(HB1832 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1832
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO EMPLOYMENT DISCRIMINATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The purpose of this Act is to make it an
 
 2 unlawful discriminatory practice for employers to require
 
 3 applicants and current employees, as a condition of employment,
 
 4 to agree to forego rights, protections, or remedies provided by
 
 5 the state employment discrimination laws.
 
 6      SECTION 2.  Section 378-2, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "§378-2 Discriminatory practices made unlawful; offenses
 
 9 defined.  It shall be an unlawful discriminatory practice:
 
10      (1)  Because of race, sex, sexual orientation, age,
 
11           religion, color, ancestry, disability, marital status,
 
12           or arrest and court record:
 
13           (A)  For any employer to refuse to hire or employ or to
 
14                bar or discharge from employment, or otherwise to
 
15                discriminate against any individual in
 
16                compensation or in the terms, conditions, or
 
17                privileges of employment;
 
18           (B)  For any employment agency to fail or refuse to
 
19                refer for employment, or to classify or otherwise
 
20                to discriminate against, any individual;
 

 
Page 2                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1           (C)  For any employer or employment agency to print,
 
 2                circulate, or cause to be printed or circulated
 
 3                any statement, advertisement, or publication or to
 
 4                use any form of application for employment or to
 
 5                make any inquiry in connection with prospective
 
 6                employment, which expresses, directly or
 
 7                indirectly, any limitation, specification, or
 
 8                discrimination;
 
 9           (D)  For any labor organization to exclude or expel
 
10                from its membership any individual or to
 
11                discriminate in any way against any of its
 
12                members, employer, or employees; or
 
13           (E)  For any employer or labor organization to refuse
 
14                to enter into an apprenticeship agreement as
 
15                defined in section 372-2; provided that no
 
16                apprentice shall be less than sixteen years of
 
17                age;
 
18      (2)  For any employer, labor organization, or employment
 
19           agency to discharge, expel, or otherwise discriminate
 
20           against any individual because the individual has
 
21           opposed any practice forbidden by this part or has
 
22           filed a complaint, testified, or assisted in any
 
23           proceeding respecting the discriminatory practices
 

 
 
Page 3                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1           prohibited under this part;
 
 2      (3)  For any person whether an employer, employee, or not,
 
 3           to aid, abet, incite, compel, or coerce the doing of
 
 4           any of the discriminatory practices forbidden by this
 
 5           part, or to attempt to do so;
 
 6      (4)  For any employer to violate the provisions of section
 
 7           121-43 relating to nonforfeiture for absence by members
 
 8           of the national guard;
 
 9      (5)  For any employer to refuse to hire or employ or to bar
 
10           or discharge from employment, any individual because of
 
11           assignment of income for the purpose of satisfying the
 
12           individual's child support obligations as provided for
 
13           under section 571-52;
 
14      (6)  For any employer, labor organization, or employment
 
15           agency to exclude or otherwise deny equal jobs or
 
16           benefits to a qualified individual because of the known
 
17           disability of an individual with whom the qualified
 
18           individual is known to have a relationship or
 
19           association; [or]
 
20      (7)  For any employer or labor organization to refuse to
 
21           hire or employ, or to bar or discharge from employment,
 
22           or withhold pay, demote, or penalize a lactating
 
23           employee because an employee breastfeeds or expresses
 

 
 
Page 4                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1           milk at the workplace.  For purposes of this paragraph,
 
 2           the term "breastfeeds" means the feeding of a child
 
 3           directly from the breast[.]; or
 
 4      (8)  For any employer to include in an employment document
 
 5           or agreement, mandated as a condition of hiring or
 
 6           continued employment, any provision that interferes
 
 7           with the protected right of an employee or prospective
 
 8           employee to file a charge or participate in any manner
 
 9           in an investigation, hearing, civil action in court, or
 
10           other proceeding under chapter 368, or to include in
 
11           any document or agreement any term that relinquishes
 
12           any right, protection, or remedy provided under chapter
 
13           368 or 378." 
 
14      SECTION 3.  Section 378-3, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "§378-3 Exceptions.  Nothing in this part shall be deemed
 
17 to:
 
18      (1)  Repeal or affect any law, ordinance, or government rule
 
19           having the force and effect of law;
 
20      (2)  Prohibit or prevent the establishment and maintenance
 
21           of bona fide occupational qualifications reasonably
 
22           necessary to the normal operation of a particular
 
23           business or enterprise, and that have a substantial
 

 
 
Page 5                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1           relationship to the functions and responsibilities of
 
 2           prospective or continued employment;
 
 3      (3)  Prohibit or prevent an employer, employment agency, or
 
 4           labor organization from refusing to hire, refer, or
 
 5           discharge any individual for reasons relating to the
 
 6           ability of the individual to perform the work in
 
 7           question;
 
 8      (4)  Affect the operation of the terms or conditions of any
 
 9           bona fide retirement, pension, employee benefit, or
 
10           insurance plan that is not intended to evade the
 
11           purpose of this chapter; provided that this exception
 
12           shall not be construed to permit any employee plan to
 
13           set a maximum age requirement for hiring or a mandatory
 
14           retirement age;
 
15      (5)  Prohibit or prevent any religious or denominational
 
16           institution or organization, or any organization
 
17           operated for charitable or educational purposes, that
 
18           is operated, supervised, or controlled by or in
 
19           connection with a religious organization, from giving
 
20           preference to individuals of the same religion or
 
21           denomination or from making a selection calculated to
 
22           promote the religious principles for which the
 
23           organization is established or maintained;
 

 
 
Page 6                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1      (6)  Conflict with or affect the application of security
 
 2           regulations or rules in employment established by the
 
 3           United States or the State;
 
 4      (7)  Require the employer to execute unreasonable structural
 
 5           changes or expensive equipment alterations to
 
 6           accommodate the employment of a person with a
 
 7           disability;
 
 8      (8)  Prohibit or prevent the department of education or
 
 9           private schools from considering criminal convictions
 
10           in determining whether a prospective employee is suited
 
11           to working in close proximity to children;
 
12      (9)  Prohibit or prevent any financial institution in which
 
13           deposits are insured by a federal agency having
 
14           jurisdiction over the financial institution from
 
15           denying employment to or discharging from employment
 
16           any person who has been convicted of any criminal
 
17           offense involving dishonesty or a breach of trust,
 
18           unless it has the prior written consent of the federal
 
19           agency having jurisdiction over the financial
 
20           institution to hire or retain the person;
 
21     (10)  Preclude any employee from bringing a civil action for
 
22           sexual harassment or sexual assault and infliction of
 
23           emotional distress or invasion of privacy related
 

 
 
Page 7                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1           thereto; provided that notwithstanding section 368-12,
 
 2           the commission shall issue a right to sue on a
 
 3           complaint filed with the commission if it determines
 
 4           that a civil action alleging similar facts has been
 
 5           filed in circuit court; [or]
 
 6     (11)  Require the employer to accommodate the needs of a
 
 7           nondisabled person associated with or related to a
 
 8           person with a disability in any way not required by
 
 9           Title I of the Americans with Disabilities Act[.]; or
 
10     (12)  Preclude or prohibit an employer and an employee or
 
11           prospective employee from entering into a knowing,
 
12           voluntary arbitration agreement that is supported by
 
13           due consideration over and above employment or
 
14           continued employment; provided that no consideration
 
15           over and above employment is required for prospective
 
16           employees; provided further that the agreement is
 
17           contained in a written document devoted entirely to the
 
18           arbitration provision, separate and apart from any
 
19           employment contract, manual, brochure, or policy, and
 
20           signed by the employee."
 
21     SECTION 4.  Statutory material to be repealed is bracketed.
 
22 New statutory material is underscored.
 
23     SECTION 5.  This Act shall take effect on June 1, 2001;
 

 
 
Page 8                                                     1832
                                     H.B. NO.           H.D. 1
                                                                      

 
 1 provided that employers shall have twelve months from the time of
 
 2 the enactment of this Act to comply with the statutory changes
 
 3 provided for in this Act as they affect mandatory arbitration
 
 4 agreements in existence at the time of the enactment of this Act.