Sexual Orientation Discrimination Laws in Hawaii

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, employment discrimination on the basis of sexual orientation is prohibited. The U.S. Supreme Court's landmark decision in Bostock v. Clayton County (2020) definitively established that Title VII's prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. Federal law covers employers with 15 or more employees in 20 or more calendar weeks during the current or preceding calendar year.

Federal protections prohibit discrimination in all aspects of employment, including hiring, firing, compensation, advancement, work assignments, training, and other terms and conditions of employment. An employee may file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act in non-deferral states, or within 300 days in states with fair employment agencies like Hawaii. Federal remedies include back pay, front pay, compensatory damages for emotional distress and reputational harm, and attorney fees and costs. The EEOC investigates charges and may bring suit on behalf of employees or issue a right-to-sue letter allowing private litigation.

Hawaii Revised Statutes section 378-2 explicitly prohibits discrimination based on sexual orientation in all aspects of employment. The Hawaii statute is stronger than federal law in several critical ways. First, Hawaii law applies to employers with one or more employees, whereas Title VII only applies to employers with 15 or more employees. This means that small employers in Hawaii are covered by state law when they would fall outside federal protection.

Second, Hawaii has had explicit statutory protection for sexual orientation since 1991, long before the Bostock decision clarified federal coverage. The state law uses clear, unambiguous language that sexual orientation is a protected class, eliminating any ambiguity present in the federal statute. Hawaii Revised Statutes section 378-2 defines sexual orientation as "a person's sexual preference or homosexuality, heterosexuality, or bisexuality." This proactive approach means Hawaii provides explicit protection regardless of federal judicial interpretation.

Third, Hawaii law applies to employment decisions affecting both current and prospective employees, contractors, apprentices, and other individuals seeking employment. The statute covers all employment decisions including but not limited to hiring, firing, promotion, compensation, advancement, benefits, training, and any other term or condition of employment. Hawaii also prohibits discrimination in referrals to employment and access to labor unions. Additionally, the law prohibits retaliation against employees who oppose discriminatory practices or file complaints.

Remedies under Hawaii law are comprehensive. Hawaii Revised Statutes section 378-3 allows for back pay, front pay, compensatory damages for emotional distress and harm to reputation, punitive damages in cases of intentional discrimination, and recovery of attorney fees and costs. The Hawaii Civil Rights Commission is the enforcement agency and has broader investigative authority than federal deferral processes in some contexts.

Sexual orientation discrimination protections under Hawaii law contain limited statutory exceptions. The primary exception involves bona fide occupational qualifications (BFOQs), which allow employers to consider sexual orientation only in rare circumstances where sexual orientation is genuinely necessary to the essential operation of a particular business or enterprise. However, courts interpret this exception narrowly, and employers bear a heavy burden in establishing a legitimate BFOQ defense.

Religious organizations and associations may claim exemptions under Hawaii Revised Statutes section 378-1(7) for employment decisions where religious status is relevant to the organization's purpose. However, this exemption applies only to positions where religious affiliation is genuinely relevant to the organization's core mission, and courts apply this narrowly. The exemption does not permit blanket discrimination by religiously-affiliated employers; rather, it requires a direct nexus between the religious organization's mission and the employment decision.

At-will employment does not provide an exception to sexual orientation discrimination laws. An employer cannot lawfully terminate an at-will employee based on sexual orientation, even absent a written employment contract. The absence of contract protection does not override statutory anti-discrimination protections. Additionally, union-represented employees retain protection under Hawaii law; collective bargaining agreements cannot contract around statutory protections against sexual orientation discrimination.

Independent contractors fall outside employment law protections generally, though Hawaii courts apply strict tests to determine whether someone is truly an independent contractor versus a misclassified employee. Small employers are not exempt from Hawaii's sexual orientation protection; the law explicitly covers employers with one or more employees. At-will employment termination for any reason is permitted, but only if the reason is not sexual orientation or a protected class characteristic.

Step 1 — Document Everything: Preserve all evidence of discriminatory treatment related to sexual orientation. Keep copies of emails, text messages, performance reviews, pay stubs, and calendar records showing employment decisions. Document the date, time, and details of each discriminatory incident, including who was present, what was said or done, and how it affected you. Save copies of job postings, internal communications, and handbooks that may show discriminatory patterns. Take screenshots of digital communications and maintain a personal log separate from work systems to preserve evidence if employment ends.

Step 2 — Follow Internal Complaint Process: Review your employee handbook for internal complaint procedures and follow them carefully. Report the discrimination to your supervisor, HR department, or the designated compliance officer in writing, describing the discriminatory conduct and requesting a response. If your supervisor is the source of discrimination, escalate to HR or higher management. Keep copies of all internal complaints and communications. This step is important because it creates a documented record and gives the employer an opportunity to remedy the situation, though failure to have or follow an internal process does not waive your legal rights.

Step 3 — File a Charge with Hawaii Civil Rights Commission: You have 180 days from the date of discriminatory conduct to file a charge with the Hawaii Civil Rights Commission. The commission's office location is at 830 Punchbowl Street, Room 411, Honolulu, HI 96813. Contact information: phone (808) 586-8636, website https://labor.hawaii.gov/hr/. You may file online, by mail, or in person. The charge requires your name, address, phone number, employer's name and address, date of discriminatory act, and detailed description of how you were discriminated against based on sexual orientation. You do not need an attorney to file, and filing is free. Include specific facts about how sexual orientation was referenced or how the decision affected you differently than similarly-situated employees of different sexual orientations.

Step 4 — Investigation Process and Timeline: After you file a charge, the Hawaii Civil Rights Commission assigns an investigator and notifies the employer. The investigation typically takes 90 to 180 days, though this timeline may extend if additional information is needed. The investigator will conduct interviews with you, the employer, witnesses, and management personnel. You will receive a copy of the investigator's report before the commission makes determinations. The commission will issue either a finding of probable cause or a no-probable-cause determination. If probable cause is found, the case may proceed to conciliation or administrative hearing. If conciliation fails, the commission may order the employer to cease discrimination, reinstate you, pay back pay and damages, and post notices informing employees of their rights.

Step 5 — When to Consult an Attorney: Consult an employment attorney immediately if the discrimination involves termination, significant wage loss, or severe harassment. An employment attorney can advise whether filing charges is your best strategy or whether immediate litigation is necessary in certain cases. Attorneys can also help you draft the charge for maximum impact, represent you during investigation and hearings, and pursue additional damages beyond what the commission may award. Many employment attorneys work on contingency fee arrangements in discrimination cases, meaning you pay nothing unless you win. An attorney experienced in Hawaii employment law is essential if the commission issues a no-probable-cause determination and you wish to appeal or pursue civil litigation, or if the case involves complex factual questions about comparators or intent.