SB1183.DOC

SECTION 1. The legislature finds that the State of Hawaii has strong laws against discrimination in employment on the basis of disability, which are embodied in sections 378-1 and 378-2, Hawaii Revised Statutes, and rules adopted by the civil rights commission. In many respects, state law provides stronger protections than those provided under federal law prohibiting employment discrimination based on disability. The legislature recognizes that pursuant to California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 107 S.Ct. 683 (1987), federal law is a "floor" beneath which protections against discrimination should not drop, rather than a "ceiling" above which protections cannot rise under state anti-discrimination laws.

The legislature further finds that on September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008, P.L. 110-325 ("ADAAA"). In the ADAAA, Congress found that several United States Supreme Court decisions interpreted the definition of disability inconsistently with legislative intent. The ADAAA clarified laws relating to employment disability, broadening the definition of disability and resulting in certain federal law protections that are stronger than corresponding protections currently provided under Hawaii state law.

The purpose of this Act is to conform state law protections against disability discrimination in employment to recently amended federal law.

SECTION 2. Section 378-1, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

""Low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

"Major life activities" includes but is not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

"Ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error."

SECTION 3. Section 378-1, Hawaii Revised Statutes, is amended by amending the definitions of "being regarded as having such an impairment" and "disability" to read as follows:

""Being regarded as having such an impairment" means an individual who has an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity, as defined in this section. The term includes but is not limited to employer consideration of an individual's genetic information, including genetic information of any family member of an individual, or the individual's refusal to submit to a genetic test as a condition of initial or continued employment. The term shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of six months or less.

"Disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment[.], as defined in this section. The definition of disability in this chapter shall be construed in accordance with the following:

(1) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under Act , Session Laws of Hawaii 2009, to the maximum extent permitted by the terms of Act , Session Laws of Hawaii 2009;

(2) The term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008, P.L. 110‑325;

(3) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability;

(4) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and

(5) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication; medical supplies; equipment; appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics, including limbs and devices; hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity."

SECTION 4. The civil rights commission shall adopt rules pursuant to chapter 91, as necessary, to effectuate the purposes of this Act.

SECTION 5. In printing this Act, the revisor of statutes shall insert in section 378‑1, Hawaii Revised Statutes, as amended in section 3, the corresponding act number of this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1183
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII