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Employment Litigation

* We are not taking any employment cases. Please contact the Hawaii Bar Lawyer Referral Program if you need help finding an employment law attorney.

Employment law is governed by an interaction of federal and state law. The Hawai'i Employment Practices Act makes it illegal for an employer to discriminate on the basis of race, religion, color, ancestry, gender, sexual orientation, age, marital status, mental or physical disability, pregnancy, childbirth or related medical conditions, arrest and court record (except if there has been a conviction directly related to job responsibilities).

Claims must first be filed with the Hawaii Civil Rights Commission (state) or the Equal Employment Opportunity Commission (federal). This website http://www.workplacefairness.org/ provides an overview of the laws and provides contact information for various agencies.

If you have been discriminated against, either the HCRC or EEOC may pursue your case or you can pursue it privately after they review it.

Sexual harassment is all too common but can be difficult to prove. Haw. Rev. Stat. § 378-2 provides that in order to establish a hostile environment sexual harassment claim, the claimant must show that: (1) he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of sexual nature, (2) conduct was unwelcome, (3) conduct was severe or pervasive (4) conduct had purpose or effect of either (a) unreasonably interfering with claimant's work performance, or (b) creating intimidating, hostile, or offensive work environment,(5) claimant actually perceived conduct as having such purpose or effect, and (6) claimant's perception was objectively reasonable to person of claimant's gender in same position as claimant. And even then, under the same statute, the employer can still avoid penalty by demonstrating that it took immediate and appropriate corrective action that was reasonably calculated to prevent future harassment.

That does not mean, however, that an employer can't be held liable for sexual harassment. The courts will look at whether whether (1) the conduct was severe or pervasive and (2) the conduct had purpose or effect of affecting your employment. Whether the actions were severe or pervasive will be determined by the court on the facts. And the court also looks at whether the employer's corrective actions were actually reasonably expected to prevent the same thing occurring again. For instance, simply warning the employee who harasses may not be enough.

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