Hawaii — Workplace Discrimination

Hawaii Revised Statutes Chapter 378 prohibits employment discrimination. HRS § 378-2 bars employers from refusing to hire, discharging, or otherwise discriminating against individuals in compensation or in the terms, conditions, or privileges of employment because of race, sex (including gender identity or expression), sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, credit history or credit report (subject to enumerated exceptions in the statute), or domestic or sexual violence victim status. The statute applies to all employers, regardless of size. The Hawaii Civil Rights Commission (HCRC) enforces Chapter 378 under HRS Chapter 368.

Source: HRS §§ 378-1, 378-2

Hawaii law requires that a discrimination complaint be filed with the Hawaii Civil Rights Commission (HCRC) within 180 days after the alleged discriminatory practice occurred. This 180-day requirement is set out in Hawaii Administrative Rules (HAR) § 12-46-17(a), which states:

> "A complaint must be filed within one hundred eighty days after the date upon which the alleged unlawful discriminatory practice occurred, except that in the case of a continuing practice, the complaint must be filed within one hundred eighty days after the last act part of the practice."

If a complaint is not filed within the 180-day window, the regulation provides that "the commission shall dismiss the complaint" as untimely (HAR § 12-46-17(b)). Neither HRS Chapter 368 nor the Commission's rules authorize equitable tolling or extension of this statutory period—a complaint filed even one day late must be dismissed for lack of jurisdiction. As of this writing, there is no express statutory or regulatory exception to this deadline.

This 180-day filing deadline applies to all statutes enforced by the HCRC, including claims under HRS Chapter 378, Part I (employment discrimination covering race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, credit history, or domestic/sexual violence status, per HAR § 12-46-2 and HRS § 378-2), Chapter 489 (public accommodations), and Chapter 515 (fair housing). HAR § 12-46-17 applies explicitly to complaints of "unlawful discriminatory practice" under each of these statutes.

The HCRC reiterates in its published FAQ: "You must file a complaint within 180 days after the act of discrimination occurred."

Source: HAR § 12-46-17 (Timeliness and dismissal) Source: HRS § 368-11 Source: HCRC FAQ

Hawaii law provides both equitable and legal remedies for employment discrimination claims under HRS Chapter 378. The remedial framework distinguishes between relief available through the Hawaii Civil Rights Commission (HCRC) and relief available through civil court actions.

HCRC remedies

Under HRS § 378-5(a), the HCRC may order appropriate affirmative action, including but not limited to hiring, reinstatement, or upgrading of employees with or without back pay, and restoration to membership in a labor organization. The statute cross-references HRS Chapter 368 for additional remedies the commission may order "which in the judgment of the commission, will effectuate the purpose of this part."

Court remedies — equitable relief

In civil actions brought under HRS Chapter 378, Part I, HRS § 378-5(b) authorizes courts to enjoin unlawful discriminatory practices and order affirmative action such as reinstatement, hiring, or upgrading of employees with or without back pay, or restoration of membership in a labor organization, or "any other equitable relief the court deems appropriate."

Back pay liability under HRS § 378-5(b) does not accrue from a date more than two years prior to the filing of the complaint with the commission.

Court remedies — compensatory and punitive damages

HRS § 368-17(a), enacted in 1989, expressly authorizes compensatory and punitive damages in addition to equitable relief. The statute provides that remedies ordered by the commission or the court "may include compensatory and punitive damages and legal and equitable relief." Specifically, HRS § 368-17(a)(8) authorizes "[p]ayment to the complainant of damages for an injury or loss caused by a violation of part I of chapter 489, chapter 515, part I of chapter 378, or this chapter, including a reasonable attorney's fee."

The Hawaii Supreme Court confirmed the availability of money damages in Ross v. Stouffer Hotel Co., 85 H. 7, 936 P.2d 643 (1997), holding that "section 368-17 permits a court to award compensatory and punitive damages in civil actions brought under part I of [chapter 378]." The court noted that prior to the 1989 enactment of HRS § 368-17, former HRS § 378-5(f) had limited available relief to equitable remedies and did not authorize compensatory or punitive damages, both of which are traditional legal remedies. Ross, 85 H. at 22, 936 P.2d at 658.

Back pay and unemployment benefits

The Hawaii Supreme Court has held that unemployment benefits received by an employee should not be deducted from back pay awards under Hawaii's employment discrimination law. In French v. Hawaii Pizza Hut, Inc., 89 H. 269, 971 P.2d 1104 (1999), the court ruled that the trial court did not have discretion to reduce the back pay award by the amount of unemployment benefits the employee had received. This rule prevents double recovery concerns from reducing the make-whole purpose of back pay awards.

Attorney's fees

HRS § 368-17(a)(8) authorizes payment to the complainant of damages for injury or loss "including a reasonable attorney's fee." Separately, HRS § 368-17(a)(9) permits the commission to award "all or a portion of the costs of maintaining the action before the commission, including reasonable attorney's fees and expert witness fees, when the commission determines that award to be appropriate."

HRS § 378-5(c) provides that in any action brought under Part I, "the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of any nature and reasonable attorney's fees, to be paid by the defendant." Courts have held that satisfaction of judgment does not bar a plaintiff's separate claim for attorney's fees under HRS § 378-5.

Workers' compensation non-offset

HRS § 368-17(b) provides that "[s]ection 386-5 notwithstanding, a workers' compensation claim or remedy does not bar relief on complaints filed with the commission." This preserves the availability of discrimination remedies even where the employee has received workers' compensation benefits for the same period of injury or disability.

Source: HRS § 378-5 Source: HRS § 368-17

Hawaii law does not require employees to exhaust administrative remedies with the Hawaii Civil Rights Commission (HCRC) before filing a civil lawsuit under the employment discrimination provisions of HRS Chapter 378, Part I. Under HRS § 378-5, either the commission or a court may provide remedies for alleged unlawful employment practices. However, HRS § 378-93 explicitly authorizes employees to bring a civil action for injunctive relief and damages within two years after the alleged violation, with no requirement to first file a complaint with the HCRC.

Hawaii courts have affirmed that a plaintiff is not required to obtain a right-to-sue letter or process a claim through the HCRC before pursuing a civil claim for discrimination, harassment, or retaliation under HRS Chapter 378, Part I. This contrasts with the federal Title VII model, which requires administrative exhaustion with the EEOC before suit. The Hawaii Supreme Court and Intermediate Court of Appeals have repeatedly recognized the statutory right to proceed directly to court for employment discrimination claims in Hawaii. (Note: other parts of Chapter 378, and certain other Hawaii civil rights statutes, may have different rules; this rule applies to employment discrimination under HRS § 378-2.)

This approach gives employees flexibility to either use the HCRC process—potentially obtaining commission intervention and conciliation—or to pursue direct court action without delay.

Source: HRS § 378-93

Under Hawaii law, individual supervisors, managers, or employees are generally not personally liable as "employers" under HRS Chapter 378 for workplace discrimination. The Hawaii Supreme Court clarified this in Lales v. Wholesale Motors Co., 133 Haw. 332, 328 P.3d 341 (2014), holding that the statutory language in HRS § 378-2(1)(A) and § 378-2(2) does not impose personal liability on individual agents, supervisors, or employees. Instead, the inclusion of "agent" in the definition of "employer" was interpreted to ensure that employers themselves can be held vicariously liable for acts of their supervisors or agents, but does not create a cause of action against the individuals themselves for discrimination or retaliation.

However, there is a distinct statutory basis for individual liability under HRS § 378-2(3). This section expressly provides that any person, whether or not an employer or employee, who "aids, abets, incites, compels, or coerces" discriminatory practices prohibited by HRS Chapter 378 can be held liable. This means that individual employees, including supervisors and managers, may be personally liable if they actively participate in or encourage discriminatory conduct, even though they are not directly liable as the employer.

It is also important to note that, under the Hawaii Civil Rights Commission's rules, employers themselves are held strictly liable for certain acts of their agents or supervisory employees. HAR § 12-46-175(d) establishes that if a supervisor or agent engages in prohibited discriminatory conduct, the employer may be liable regardless of whether the conduct was authorized or within the scope of employment, so long as the individual's supervisory or agency status is established.

In summary:

• Individual supervisors, managers, or employees are not personally liable as "employers" under HRS § 378-2(1) or (2), but can be personally liable under HRS § 378-2(3) (aiding and abetting).
• Employers are strictly liable under HAR § 12-46-175(d) for discriminatory acts of their supervisors or agents, even absent employer knowledge or authorization.

Source: Haw. Rev. Stat. § 378-2 Source: HAR § 12-46-175(d) Source: Lales v. Wholesale Motors Co., 133 Haw. 332, 328 P.3d 341 (Haw. 2014), available at courtlistener.com

Hawaii law expressly prohibits retaliation against employees who oppose workplace discrimination or participate in related complaints and investigations. HRS § 378-2(2) makes it unlawful for an employer to discriminate "because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding concerning this part." In other words, protection is not limited to traditional whistleblowing, but covers any opposition to, or complaint about, workplace discrimination barred under HRS Chapter 378, Part I.

HRS § 378-2(3) further extends liability to "any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part," including retaliation. This means individuals—such as managers or co-workers—may be personally liable if they incite or assist retaliatory action.

The Hawaii Supreme Court's decision in Schefke v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408, 32 P.3d 52 (2001), resolved any past ambiguity on this point. The Court held that HRS § 378-2 protects employees from retaliation for opposing or complaining about discrimination, and confirmed that individual liability under § 378-2(3) reaches active participants in retaliation. The Court adopted the burden-shifting framework analogous to federal law (the McDonnell Douglas approach):

• The employee must first establish a prima facie case of retaliation (1. protected activity, 2. adverse employment action, 3. causal connection).
• The employer then must articulate a legitimate, non-retaliatory reason for its action.
• If so, the employee must prove the stated reason is pretext for retaliation.

This framework has been cited and elaborated upon in subsequent Hawaii appellate decisions.

In summary: Hawaii's general employment discrimination statute provides full statutory protection against employer retaliation for opposing or reporting discriminatory practices under HRS Chapter 378, Part I, and extends individual liability for those who actively participate in retaliation.

Source: HRS § 378-2 Source: Schefke v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408 (2001)