Filing a Workplace Harassment Complaint in Hawaii

Ask in writing, and do not wait too long. Hawaii Administrative Rules Section 12-46-20(b)(1) allows the written request at any time after the filing of a complaint with the commission, so there is no federal style one hundred eighty day waiting period, but the same subsection ends the window no later than three days after the conclusion of the scheduling conference. That cut off appears in the rules, not in the statute, and missing it leaves you on the administrative track because HRS Section 368-12 says only that the commission may issue a notice. Once the notice is received, Section 368-12 gives ninety days to bring a civil action.

Yes. HRS Section 378-1 defines employer as any person, including the State or any of its political subdivisions and any agent of such person, having one or more employees, but not the United States, and the case notes published with that section record the Hawaii Supreme Court's reading that the legislature intended all employers regardless of size to be covered. Federal Title VII requires fifteen employees, so a worker at a small Hawaii company is often in the position of having a full state claim and no federal claim at all.

In a commission regulation rather than the statute. The phrase sexual harassment does not appear in HRS Section 378-2 at all. Hawaii Administrative Rules Section 12-46-109 supplies the definition, covering unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature, including conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. The reference to visual forms reaches images as well as words and acts, though it speaks to the medium rather than to where the conduct happened.

It is not a precondition, and Hawaii goes further than most states. Hawaii Administrative Rules Section 12-46-109(d) says an employee harassed by a coworker should inform the employer, and then states that an employee's failure to give such notice may not be an affirmative defense. Section 12-46-109(c) separately makes an employer responsible for the acts of its agents and supervisory employees regardless of whether the employer knew or should have known of them. Reporting in writing is still worth doing, because a dated report is evidence, but the absence of one is not the obstacle it is in some other states.

It can. Hawaii Administrative Rules Section 12-46-109(e) provides that an employer may be responsible for the acts of non employees, with respect to sexual harassment of employees at the workplace, where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action, and it weighs the extent of the employer's control over the non employee. That makes reporting the conduct to management important in this specific situation, because the employer's knowledge is part of the test. Keep a record of what you reported and when.

A long list. HRS Section 378-2(a)(1) covers race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, and domestic or sexual violence victim status where the employer was given notice or had actual knowledge. Section 378-1 defines arrest and court record broadly and defines reproductive health decision to include the use or attempted use of a legal drug, device or medical service intended to prevent or terminate a pregnancy or of assisted reproductive technology. Further subsections at Section 378-2(a)(4) to (a)(9) add protections including credit history, breastfeeding at the workplace and National Guard service absence.