1. What kinds of discrimination are against state law in Hawai'i?
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).
2. How do I file a discrimination claim in Hawai'i?
In Hawai'i, it is possible to file a discrimination claim either with the state administrative agency, the Hawai'i Civil Rights Commission (HCRC), or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The Hawai'i anti-discrimination statute covers employers of any size. Therefore, if your workplace has between 1 and 14 employees, you should file with the HCRC, as the EEOC enforces federal law which covers only employers with 15 or more employees. Otherwise, some attorneys recommend that you file with the EEOC first.
To file a claim with the HCRC, contact its office below. More information about filing a claim with the HCRC can be found at http://hawaii.gov/labor/hcrc.
Hawai'i Civil Rights Commission
830 Punchbowl Street, Room 411
Honolulu, HI 96813
To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at http://www.eeoc.gov/facts/howtofil.html.
EEOC's Honolulu Local Office
300 Ala Moana Boulevard, Room 7123-A
P.O. Box 50082
Honolulu, HI 96850-0051
3. What are my time deadlines?
Do not delay in contacting the HCRC or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the HCRC (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as other applicable legal claims may have shorter deadlines, do not wait until your time limit is close to expiring to file your claim. You may wish to consult with an attorney prior to filing your claim, if possible. But if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.
4. How can I or my attorney pursue a claim in court in Hawai'i?
If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the HCRC or EEOC, you may need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the HCRC (except for sexual harassment claims, which do not require exhaustion).
Because Hawai'i law does not limit the damages for a discrimination claim, and it is easier in Hawai'i state court to prevent summary judgment (a dismissal of the case by a judge prior to trial after disputed and undisputed facts have been presented), many attorneys in Hawai'i choose to file employment discrimination cases in state court. However, cases may be brought in either state or federal court.
Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) A lawsuit based on your state claim must also be filed in court within 90 days of receiving the HCRC's similar notice, unless you are bringing a sexual harassment case only, which does not require filing with the HCRC first and must be filed in court within two years. These deadlines are called the “statute of limitations.” If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.