Sexual Orientation Discrimination Basics under Hawaii Employment Law

Hawaii employment law, HRS Chapter 378, expressly prohibits employment discrimination and harassment because of sexual orientation. In May 2011, Governor Abercrombie signed a bill into law establishing transsexuals, transgendered individuals and transvestites as a protected class under Hawaii employment law.

Under Hawaii State law, HRS Chapter 378, sexual orientation is defined as having a preference for heterosexuality, homosexuality, or bisexuality; having a history of any one or more of these preferences; or being identified with any one or more of these preferences. Hawaii employment law expressly prohibits employment discrimination and harassment because of sexual orientation.

Title VII does not address discrimination based on sexual orientation. This has not precluded employees from raising discrimination claims on other discrimination theories, including discrimination "because of sex." For example. the United States Court of Appeals for the Ninth Circuit has held that an openly gay employee had a viable claim of sex discrimination "because of sex" under Title VII. In so doing, the Court did not determine that sexual orientation is covered by Title VII, but instead stated that the employee's sexual orientation was irrelevant. The Court reasoned that a Title VII claim was viable because the employee was subjected to offensive sexual touching that created a hostile work environment, regardless of the reason the harassment was perpetrated.

The Ninth Circuit's refusal to openly state that sexual orientation discrimination claims are covered by Title VII comports with conclusions reached by other jurisdictions, which have generally refused to allow employees to bring a sexual orientation discrimination or harassment claim under Title VII until the federal legislature amends the statute. This approach does not preclude employees from bringing same-sex harassment claims, however, as the U.S. Supreme Court has held that such claims can violate Title VII where discrimination occurred "because of sex".

In 2006, the Hawaii Legislature passed legislation to prohibit discrimination in housing and public accommodation on the basis of sexual orientation, gender identity or expression. The provision defines "gender identity or expression" is defined as a person's "actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth. The term includes transvestites, transsexuals, hermaphrodites, and other individuals who spend portions of their time in a gender other than that of birth.

The housing and public accommodation law also provides that patrons who perceive they have been discriminated against may file claims with the Hawaii Civil Rights Commission. Remedies available for this type of claim include: (a) a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is greater; (b) reasonable attorneys fees and costs; (c) injunctive relief; and (d) a civil penalty of $500.00 to $10,000.00 for each violation.

Gender identity was not a protected category under Hawai'i employment discrimination law until May 3, 2011. On that date Hawaii Governor Neil Abercrombie signed a new employment discrimination bill into law. Hawaii joined 12 other states to ban discrimination in the workplace on the basis of gender identity. Accordingly, transsexuals, transgendered individuals and transvestites are considered a protected class by Hawaii employment law.

In considering discrimination claims raised by transsexuals under federal law, many courts have reasoned that "[w]hile Title VII' s prohibition of discrimination on the basis of sex includes sexual stereotypes the phrase 'sex' has not been interpreted to include sexual identity or gender identity disorders." This area of law is continues to evolve, however, and it should be noted that other jurisdictions have allowed transgendered individuals to bring claims of sex discrimination under a sex stereotyping theory.

ABOUT THE AUTHOR: Roman Amaguin, Esq.
Roman Amaguin, Esq. has been practicing employment and labor law in Hawaii since 1995.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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