HB 1878: Anti-discrimination; Prohibitions; Certain Characteristics; Intersectionality

A BILL FOR AN ACT

RELATING TO DISCRIMINATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the State prohibits discrimination based on individual characteristics in employment; housing; public accommodations; and access to services that receive state financial assistance, including but not limited to educational programs and activities.

     The legislature recognizes that the discrimination faced by an individual is often multifaceted and is not necessarily founded on a single characteristic or basis.  The legislature further finds that discrimination can be based on the intersectionality or a combination of multiple factors.  Biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination.

     In Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 1994), the United States Ninth Circuit Court of Appeals held that when a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just on any one protected characteristic by itself.  In 2024, California recognized that unlawful discriminatory practices may include "any combination" of protected characteristics or traits--not just a single one.  Thus, this Act is to ensure that the protections established in Lam and adopted in legal practice are codified into existing law.

     Accordingly, the purpose of this Act is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.

     SECTION 2.  Section 368-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368-1  Purpose and intent.  (a)  The legislature finds and declares that the practice of discrimination because of race, color, religion, age, sex, including gender identity or expression, sexual orientation, marital status, national origin, place of birth, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy.  [It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws.]

     (b)  The legislature further finds and declares that the practice of discrimination based on a perception that a person possesses any particular characteristic or characteristics listed in subsection (a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a) is against public policy.

     (c)  The legislature also finds and declares that the practice of discrimination because of the intersection or combination of any characteristics listed in subsection (a) is against public policy.

     (d)  It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws."

     SECTION 3.  Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368D-1  Covered educational programs and activities; discrimination prohibited.  (a)  No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any covered educational program or activity.

     (b)  A perception that a person possesses any particular characteristic or characteristics listed in section 368-1(a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in section 368-1(a) shall not be the basis for:

     (1)  Exclusion from participation in;

     (2)  Denial of the benefits of; or

     (3)  Discrimination under,

any covered educational program or activity.

     (c)  The intersection or combination of any characteristics listed in section 368-1(a) shall not be a basis for:

     (1)  Exclusion from participation in;

     (2)  Denial of the benefits of; or

     (3)  Discrimination under,

any covered educational program or activity.

     [(b)] (d)  Nothing in this chapter shall preclude a person who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

     [(c)] (e)  A person, or an organization or association on behalf of a person alleging a violation of this chapter, may file a complaint pursuant to this chapter.

     [(d)] (f)  A covered educational program or activity shall be in compliance with this chapter during the school year when state funds are received or expended."

     SECTION 4.  Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

     "§378-2  Discriminatory practices made unlawful; offenses defined.  (a)  It shall be an unlawful discriminatory practice:

     (1)  Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of [such] their status or the employer has actual knowledge of [such] the person's status:

          (A)  For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

          (B)  For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

          (C)  For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

          (D)  For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

          (E)  For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

     (2)  For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

     (3)  For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

     (4)  For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

     (5)  For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

     (6)  For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

     (7)  For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace.  For the purposes of this paragraph, [the term] "breastfeeds" means the feeding of a child directly from the breast;

     (8)  For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise [to] discriminate against any individual in compensation or in the terms, conditions, or privileges of employment [of any individual] because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2); or

     (9)  For any employer to discriminate against any individual employed as a domestic[,] worker in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or reproductive health decision.

     (b)  For the purposes of subsection (a)(1):

     (1)  An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

          (A)  Certified or exemplified restraining orders, orders for protection, injunctions against harassment, and documents from criminal cases;

          (B)  Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or

          (C)  Documentation from a medical professional, mental health care provider, attorney, advocate, social worker, or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence; and

     (2)  An employer may verify an employee's status as a domestic or sexual violence victim [not] no more than once every six months following the date the employer:

          (A)  Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

          (B)  Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

          (C)  Received verification that the employee is a domestic or sexual violence victim;

          provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer [may] shall not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

     (c)  It shall be an unlawful discriminatory practice to engage in any of the actions set forth in subsection (a) because of:

     (1)  The perception that a person possesses any particular characteristic or characteristics listed in subsection (a);

     (2)  The perception that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a); or

     (3)  The intersection or combination of any particular characteristics listed in subsection (a)."

     SECTION 5.  Section 489-3, Hawaii Revised Statutes, is amended to read as follows:

     "§489-3  Discriminatory practices prohibition.  Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of [race;]:

     (1)  Race; sex, including gender identity or expression; sexual orientation; color; religion; ancestry; or disability, including the use of a service animal[, are];

     (2)  A perception that a person possesses any characteristic or characteristics listed in paragraph (1);

     (3)  A perception that a person is associated with a person who possesses, or is perceived to possess, any characteristic or characteristics listed in paragraph (1); or

     (4)  An intersection or combination of the characteristics listed in paragraph (1) in relation to a person,

shall be prohibited."

     SECTION 6.  Section 515-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  It [is] shall be a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson, because of race; sex, including gender identity or expression; sexual orientation; color; religion; marital status; familial status; ancestry; disability; age; [or] human immunodeficiency virus infection[:]; a perception that a person possesses any characteristic or characteristics listed in this subsection; a perception that a person is associated with a person who possesses, or is perceived to possess, any characteristic or characteristics listed in this subsection; or an intersection or combination of any characteristics listed in this subsection in relation to a person:

     (1)  To refuse to engage in a real estate transaction with a person;

     (2)  To discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (3)  To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

     (4)  To refuse to negotiate for a real estate transaction with a person;

     (5)  To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is available; fail to bring a property listing to the person's attention; refuse to permit the person to inspect real property; or steer a person seeking to engage in a real estate transaction;

     (6)  To offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (7)  To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for human immunodeficiency virus infection, the causative agent of acquired immunodeficiency syndrome;

     (8)  To refuse to permit, at the expense of a person with a disability, reasonable modifications to existing premises occupied or to be occupied by the person if modifications may be necessary to afford the person full enjoyment of the premises; provided that a real estate broker or salesperson, where it is reasonable to do so, may condition permission for a modification on the person agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

     (9)  To refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an assistance animal, reasonable restrictions may be imposed; provided further that if the disability is not readily apparent, an owner or other person engaging in a real estate transaction may request information that verifies that the person has a disability, defined as a physical or mental impairment that substantially limits a major life activity.  An owner or other person engaging in a real estate transaction shall not request medical records or access to health care providers, and shall not inquire as to the diagnosis, nature, or severity of the person's disability.  If the disability-related need for an assistance animal is not readily apparent, an owner or other person engaging in a real estate transaction may request verification that the assistance animal is needed to alleviate one or more symptoms of the person's disability.  Verification may be provided by a letter or other communication from the person's treating health care professional, mental health professional, or social worker.  Possession of a vest or other distinguishing animal garment, tag, or registration documents that are commonly purchased online and purporting to identify an animal as a service animal or assistance animal shall not constitute valid verification;

    (10)  In connection with the design and construction of covered multifamily housing accommodations for first occupancy after March 13, 1991, to fail to design and construct housing accommodations in such a manner that:

          (A)  The housing accommodations have at least one accessible entrance, unless it is impractical to do so because of the terrain or unusual characteristics of the site; and

          (B)  With respect to housing accommodations with an accessible building entrance:

               (i)  The public use and common use portions of the housing accommodations are accessible to and usable by persons with disabilities;

              (ii)  Doors allow passage by persons in wheelchairs; and

             (iii)  All premises within covered multifamily housing accommodations contain an accessible route into and through the housing accommodations; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; reinforcements in the bathroom walls allow installation of grab bars; and kitchens and bathrooms are accessible by wheelchair; or

    (11)  To discriminate against or deny a person access to or membership or participation in any multiple listing service, real estate broker's organization, or other service, organization, or facility involved either directly or indirectly in real estate transactions, or to discriminate against any person in the terms or conditions of access, membership, or participation."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect upon its approval.

Report Title:

Anti-discrimination; Prohibitions; Certain Characteristics; Intersectionality

Description:

Prohibits discrimination based on:  (1) The perception that a person possesses certain characteristics; (2) The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or (3) The intersection or combination of two or more specified characteristics in relation to a person.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO DISCRIMINATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that Hawaii prohibits discrimination based on individual characteristics in employment; housing; public accommodations; and access to services that receive state financial assistance, including but not limited to educational programs and activities.

     The legislature recognizes that the discrimination faced by an individual is often multifaceted and is not necessarily founded on a single characteristic or basis.  The legislature further finds that discrimination can be based on the intersectionality or a combination of multiple factors.  Biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination.

     In Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 1994), the United States Ninth Circuit Court of Appeals held that when a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just on any one protected characteristic by itself.  In 2024, California recognized that unlawful discriminatory practices may include "any combination" of protected characteristics or traits--not just a single one.  Thus, this Act is to ensure that the protections established in Lam and adopted in legal practice are codified into existing law.

     Accordingly, the purpose of this Act is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.

     SECTION 2.  Section 368-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368-1  Purpose and intent.  (a)  The legislature finds and declares that the practice of discrimination because of race, color, religion, age, sex, including gender identity or expression, sexual orientation, marital status, national origin, place of birth, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy.  [It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws.]

     (b)  The legislature further finds and declares that the practice of discrimination based on a perception that a person possesses any particular characteristic or characteristics listed in subsection (a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a) is against public policy.

     (c)  The legislature also finds and declares that the practice of discrimination because of the intersection or combination of any characteristics listed in subsection (a) is against public policy.

     (d)  It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws."

     SECTION 3.  Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368D-1  Covered educational programs and activities; discrimination prohibited.  (a)  No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any covered educational program or activity.

     (b)  A perception that a person possesses any particular characteristic or characteristics listed in section 368-1(a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in section 368-1(a) shall not be the basis for:

     (1)  Exclusion from participation in;

     (2)  Denial of the benefits of; or

     (3)  Discrimination under,

any covered educational program or activity.

     (c)  The intersection or combination of any characteristics listed in section 368-1(a) shall not be a basis for:

     (1)  Exclusion from participation in;

     (2)  Denial of the benefits of; or

     (3)  Discrimination under,

any covered educational program or activity.

     [(b)] (d)  Nothing in this chapter shall preclude a person who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

     [(c)] (e)  A person, or an organization or association on behalf of a person alleging a violation of this chapter, may file a complaint pursuant to this chapter.

     [(d)] (f)  A covered educational program or activity shall be in compliance with this chapter during the school year when state funds are received or expended."

     SECTION 4.  Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

     "§378-2  Discriminatory practices made unlawful; offenses defined.  (a)  It shall be an unlawful discriminatory practice:

     (1)  Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:

          (A)  For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

          (B)  For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

          (C)  For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

          (D)  For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

          (E)  For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

     (2)  For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

     (3)  For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

     (4)  For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

     (5)  For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

     (6)  For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

     (7)  For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace.  For purposes of this paragraph, [the term] "breastfeeds" means the feeding of a child directly from the breast;

     (8)  For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise [to] discriminate against any individual in compensation or in the terms, conditions, or privileges of employment [of any individual] because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2); or

     (9)  For any employer to discriminate against any individual employed as a domestic[,] worker in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or reproductive health decision.

     (b)  For purposes of subsection (a)(1):

     (1)  An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

          (A)  Certified or exemplified restraining orders, orders for protection, injunctions against harassment, and documents from criminal cases;

          (B)  Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or

          (C)  Documentation from a medical professional, mental health care provider, attorney, advocate, social worker, or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence; and

     (2)  An employer may verify an employee's status as a domestic or sexual violence victim [not] no more than once every six months following the date the employer:

          (A)  Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

          (B)  Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

          (C)  Received verification that the employee is a domestic or sexual violence victim;

          provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer [may] shall not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

     (c)  It shall be an unlawful discriminatory practice to engage in any of the actions set forth in subsection (a) because of:

     (1)  The perception that a person possesses any particular characteristic or characteristics listed in subsection (a);

     (2)  The perception that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a); or

     (3)  The intersection or combination of any particular characteristics listed in subsection (a)."

     SECTION 5.  Section 489-3, Hawaii Revised Statutes, is amended to read as follows:

     "§489-3  Discriminatory practices prohibition.  Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of [race;]:

     (1)  Race; sex, including gender identity or expression; sexual orientation; color; religion; ancestry; or disability, including the use of a service animal[, are];

     (2)  A perception that a person possesses any characteristic or characteristics listed in paragraph (1);

     (3)  A perception that a person is associated with a person who possesses, or is perceived to possess, any characteristic or characteristics listed in paragraph (1); or

     (4)  An intersection or combination of the characteristics listed in paragraph (1) in relation to a person,

shall be prohibited."

     SECTION 6.  Section 515-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  It [is] shall be a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson, because of race; sex, including gender identity or expression; sexual orientation; color; religion; marital status; familial status; ancestry; disability; age; [or] human immunodeficiency virus infection[:]; a perception that a person possesses any characteristic or characteristics listed in this subsection; a perception that a person is associated with a person who possesses, or is perceived to possess, any characteristic or characteristics listed in this subsection; or an intersection or combination of any characteristics listed in this subsection in relation to a person:

     (1)  To refuse to engage in a real estate transaction with a person;

     (2)  To discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (3)  To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

     (4)  To refuse to negotiate for a real estate transaction with a person;

     (5)  To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is available; fail to bring a property listing to the person's attention; refuse to permit the person to inspect real property; or steer a person seeking to engage in a real estate transaction;

     (6)  To offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (7)  To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for human immunodeficiency virus infection, the causative agent of acquired immunodeficiency syndrome;

     (8)  To refuse to permit, at the expense of a person with a disability, reasonable modifications to existing premises occupied or to be occupied by the person if modifications may be necessary to afford the person full enjoyment of the premises; provided that a real estate broker or salesperson, where it is reasonable to do so, may condition permission for a modification on the person agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

     (9)  To refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an assistance animal, reasonable restrictions may be imposed; provided further that if the disability is not readily apparent, an owner or other person engaging in a real estate transaction may request information that verifies that the person has a disability, defined as a physical or mental impairment that substantially limits a major life activity.  An owner or other person engaging in a real estate transaction shall not request medical records or access to health care providers, and shall not inquire as to the diagnosis, nature, or severity of the person's disability.  If the disability-related need for an assistance animal is not readily apparent, an owner or other person engaging in a real estate transaction may request verification that the assistance animal is needed to alleviate one or more symptoms of the person's disability.  Verification may be provided by a letter or other communication from the person's treating health care professional, mental health professional, or social worker.  Possession of a vest or other distinguishing animal garment, tag, or registration documents that are commonly purchased online and purporting to identify an animal as a service animal or assistance animal shall not constitute valid verification;

    (10)  In connection with the design and construction of covered multifamily housing accommodations for first occupancy after March 13, 1991, to fail to design and construct housing accommodations in such a manner that:

          (A)  The housing accommodations have at least one accessible entrance, unless it is impractical to do so because of the terrain or unusual characteristics of the site; and

          (B)  With respect to housing accommodations with an accessible building entrance:

              (i)  The public use and common use portions of the housing accommodations are accessible to and usable by persons with disabilities;

             (ii)  Doors allow passage by persons in wheelchairs; and

            (iii)  All premises within covered multifamily housing accommodations contain an accessible route into and through the housing accommodations; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; reinforcements in the bathroom walls allow installation of grab bars; and kitchens and bathrooms are accessible by wheelchair; or

    (11)  To discriminate against or deny a person access to or membership or participation in any multiple listing service, real estate broker's organization, or other service, organization, or facility involved either directly or indirectly in real estate transactions, or to discriminate against any person in the terms or conditions of access, membership, or participation."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect on July 1, 3000.

Report Title:

Anti-discrimination; Prohibitions; Certain Characteristics; Intersectionality

Description:

Prohibits discrimination based on:  (1) The perception that a person possesses certain characteristics; (2) The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or (3) The intersection or combination of two or more specified characteristics in relation to a person.  Effective 7/1/3000.  (HD2)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO DISCRIMINATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that Hawaii prohibits discrimination based on individual characteristics in employment; housing; public accommodations; and access to services that receive state financial assistance, including but not limited to educational programs and activities.

     The legislature recognizes that the discrimination faced by an individual is often multifaceted and is not necessarily founded on a single characteristic or basis.  The legislature further finds that discrimination can be based on the intersectionality or a combination of multiple factors.  Biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination.

     In Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 1994), the United States Ninth Circuit Court of Appeals held that when a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just on any one protected characteristic by itself.  In 2024, California recognized that unlawful discriminatory practices may include "any combination" of protected characteristics or traits--not just a single one.  Thus, this Act is to ensure that the protections established in Lam and adopted in legal practice are codified into existing law.

     Accordingly, the purpose of this Act is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.

     SECTION 2.  Section 368-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368-1  Purpose and intent.  (a)  The legislature finds and declares that the practice of discrimination because of race, color, religion, age, sex, including gender identity or expression, sexual orientation, marital status, national origin, place of birth, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy.  [It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws.]

     (b)  The legislature further finds and declares that the practice of discrimination based on a perception that a person possesses any particular characteristic or characteristics listed in subsection (a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a) is against public policy.

     (c)  The legislature also finds and declares that the practice of discrimination because of the intersection or combination of any characteristics listed in subsection (a) is against public policy.

     (d)  It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws."

     SECTION 3.  Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368D-1  Covered educational programs and activities; discrimination prohibited.  (a)  No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any covered educational program or activity.

     (b)  A perception that a person possesses any particular characteristic or characteristics listed in section 368-1(a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in section 368-1(a) shall not be:

     (1)  Cause for exclusion from participation in;

     (2)  Cause to be denied the benefits of; and

     (3)  The subject of discrimination;

by any covered educational program or activity.

     (c)  The intersection or combination of any characteristics listed in section 368-1(a) shall not be cause for exclusion from participation in, shall not be cause to be denied the benefits of, and shall not be the subject of discrimination by any covered educational program or activity.

     [(b)] (d)  Nothing in this chapter shall preclude a person who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

     [(c)] (e)  A person, or an organization or association on behalf of a person alleging a violation of this chapter may file a complaint pursuant to this chapter.

     [(d)] (f)  A covered educational program or activity shall be in compliance with this chapter during the school year when state funds are received or expended."

     SECTION 4.  Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

     "§378-2  Discriminatory practices made unlawful; offenses defined.  (a)  It shall be an unlawful discriminatory practice:

     (1)  Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:

          (A)  For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

          (B)  For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

          (C)  For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

          (D)  For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

          (E)  For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

     (2)  For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

     (3)  For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

     (4)  For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

     (5)  For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

     (6)  For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

     (7)  For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace.  For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast;

     (8)  For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2); or

     (9)  For any employer to discriminate against any individual employed as a domestic, in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or reproductive health decision.

     (b)  For purposes of subsection (a)(1):

     (1)  An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

          (A)  Certified or exemplified restraining orders, injunctions against harassment, and documents from criminal cases;

          (B)  Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or

          (C)  Documentation from a medical professional, mental health care provider, attorney, advocate, social worker, or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence; and

     (2)  An employer may verify an employee's status as a domestic or sexual violence victim not more than once every six months following the date the employer:

          (A)  Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

          (B)  Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

          (C)  Received verification that the employee is a domestic or sexual violence victim;

          provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer may not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

     (c)  It shall be an unlawful discriminatory practice to engage in any of the actions set forth in subsection (a):

     (1)  Because of the perception that a person possesses any particular characteristic or characteristics listed in subsection (a);

     (2)  Because of the perception that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a); or

     (3)  The intersection or combination of any particular characteristics listed in subsection (a)."

     SECTION 5.  Section 489-3, Hawaii Revised Statutes, is amended to read as follows:

     "§489-3  Discriminatory practices prohibition.  Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of [race;]:

     (1)  Race, sex, including gender identity or expression; sexual orientation; color; religion; ancestry; or disability, including the use of a service animal[,];

     (2)  A perception that a person possesses any aforementioned characteristic or characteristics;

     (3)  A perception that a person is associated with a person who possesses, or is perceived to possess, any aforementioned characteristic or characteristics; or

     (4)  An intersection or combination of the aforementioned characteristics in relation to a person,

are prohibited."

     SECTION 6.  Section 515-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  It is a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson, because of race; sex, including gender identity or expression; sexual orientation; color; religion; marital status; familial status; ancestry; disability; age; [or] human immunodeficiency virus infection[:]; a perception that a person possesses any aforementioned characteristic or characteristics; a perception that a person is associated with a person who possesses, or is perceived to possess, any aforementioned characteristic or characteristics; or an intersection or combination of any aforementioned characteristics in relation to a person:

     (1)  To refuse to engage in a real estate transaction with a person;

     (2)  To discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (3)  To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

     (4)  To refuse to negotiate for a real estate transaction with a person;

     (5)  To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is available; fail to bring a property listing to the person's attention; refuse to permit the person to inspect real property; or steer a person seeking to engage in a real estate transaction;

     (6)  To offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (7)  To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for human immunodeficiency virus infection, the causative agent of acquired immunodeficiency syndrome;

     (8)  To refuse to permit, at the expense of a person with a disability, reasonable modifications to existing premises occupied or to be occupied by the person if modifications may be necessary to afford the person full enjoyment of the premises; provided that a real estate broker or salesperson, where it is reasonable to do so, may condition permission for a modification on the person agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

     (9)  To refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an assistance animal, reasonable restrictions may be imposed; provided further that if the disability is not readily apparent, an owner or other person engaging in a real estate transaction may request information that verifies that the person has a disability, defined as a physical or mental impairment that substantially limits a major life activity.  An owner or other person engaging in a real estate transaction shall not request medical records or access to health care providers, and shall not inquire as to the diagnosis, nature, or severity of the person's disability.  If the disability-related need for an assistance animal is not readily apparent, an owner or other person engaging in a real estate transaction may request verification that the assistance animal is needed to alleviate one or more symptoms of the person's disability.  Verification may be provided by a letter or other communication from the person's treating health care professional, mental health professional, or social worker.  Possession of a vest or other distinguishing animal garment, tag, or registration documents that are commonly purchased online and purporting to identify an animal as a service animal or assistance animal shall not constitute valid verification;

    (10)  In connection with the design and construction of covered multifamily housing accommodations for first occupancy after March 13, 1991, to fail to design and construct housing accommodations in such a manner that:

          (A)  The housing accommodations have at least one accessible entrance, unless it is impractical to do so because of the terrain or unusual characteristics of the site; and

          (B)  With respect to housing accommodations with an accessible building entrance:

              (i)  The public use and common use portions of the housing accommodations are accessible to and usable by persons with disabilities;

             (ii)  Doors allow passage by persons in wheelchairs; and

            (iii)  All premises within covered multifamily housing accommodations contain an accessible route into and through the housing accommodations; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; reinforcements in the bathroom walls allow installation of grab bars; and kitchens and bathrooms are accessible by wheelchair; or

    (11)  To discriminate against or deny a person access to or membership or participation in any multiple listing service, real estate broker's organization, or other service, organization, or facility involved either directly or indirectly in real estate transactions, or to discriminate against any person in the terms or conditions of access, membership, or participation."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect on July 1, 3000.

Report Title:

Anti-discrimination; Prohibitions; Certain Characteristics; Intersectionality

Description:

Prohibits discrimination based on:  (1) The perception that a person possesses certain characteristics; (2) The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or (3) The intersection or combination of two or more specified characteristics in relation to a person.  Effective 7/1/3000.  (HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

relating to discrimination.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that Hawaii prohibits discrimination based on individual characteristics in employment; housing; public accommodations; and access to services that receive state financial assistance, including but not limited to educational programs and activities.

     The legislature recognizes that the discrimination faced by an individual is often multifaceted and is not necessarily founded on a single characteristic or basis.  The legislature further finds that discrimination can be based on the intersectionality or a combination of multiple factors.  Biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination.

     In Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 1994), the United States Ninth Circuit Court of Appeals held that when a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just on any one protected characteristic by itself.  In 2024, California recognized that unlawful discriminatory practices may include "any combination" of protected characteristics or traits--not just a single one.  Thus, this Act is to ensure that the protections established in Lam and adopted in legal practice are codified into existing law.  This Act will conform law to practice.

     Accordingly, the purpose of this Act is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.

     SECTION 2.  Section 368-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368-1  Purpose and intent.  (a)  The legislature finds and declares that the practice of discrimination because of race, color, religion, age, sex, including gender identity or expression, sexual orientation, marital status, national origin, place of birth, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy.  [It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws.]

     (b)  The legislature further finds and declares that the practice of discrimination based on a perception that a person possesses any particular characteristic or characteristics listed in subsection (a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in subsection (a) is against public policy.

     (c)  The legislature further finds and declares that the practice of discrimination because of the intersection or combination of any characteristics listed in subsection (a) is against public policy.

     (d)  It is the purpose of this chapter to provide a mechanism that provides for a uniform procedure for the enforcement of the State's discrimination laws.  It is the legislature's intent to preserve all existing rights and remedies under such laws."

     SECTION 3.  Section 368D-1, Hawaii Revised Statutes, is amended to read as follows:

     "§368D-1  Covered educational programs and activities; discrimination prohibited.  (a)  No person in the State, on the basis of sex, including gender identity or expression as defined in section 489-2, or sexual orientation as defined in section 489-2, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any covered educational program or activity.

     (b)  A perception that a person possesses any particular characteristic or characteristics listed in section 368-1(a) or that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in section 368-1(a) shall not be cause for exclusion from participation in, shall not be cause to be denied the benefits of, and shall not be the subject of discrimination by any covered educational program or activity.

     The intersection or combination of any characteristics listed in section 368-1(a) shall not be cause for exclusion from participation in, shall not be cause to be denied the benefits of, and shall not be the subject of discrimination by any covered educational program or activity.

     [(b)] (c)  Nothing in this chapter shall preclude a person who is aggrieved by a violation of this chapter from filing a civil action in a court of competent jurisdiction.

     [(c)] (d)  A person, or an organization or association on behalf of a person alleging a violation of this chapter may file a complaint pursuant to this chapter.

     [(d)] (e)  A covered educational program or activity shall be in compliance with this chapter during the school year when state funds are received or expended."

     SECTION 4.  Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

     "§378-2  Discriminatory practices made unlawful; offenses defined.  (a)  It shall be an unlawful discriminatory practice:

     (1)  Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:

          (A)  For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

          (B)  For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

          (C)  For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

          (D)  For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

          (E)  For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

     (2)  For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

     (3)  For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

     (4)  For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

     (5)  For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

     (6)  For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

     (7)  For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace.  For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast;

     (8)  For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2); or

     (9)  For any employer to discriminate against any individual employed as a domestic, in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, or reproductive health decision.

     (b)  For purposes of subsection (a)(1):

     (1)  An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

          (A)  Certified or exemplified restraining orders, injunctions against harassment, and documents from criminal cases;

          (B)  Documentation from a victim services organization or domestic or sexual violence program, agency, or facility, including a shelter or safe house for victims of domestic or sexual violence; or

          (C)  Documentation from a medical professional, mental health care provider, attorney, advocate, social worker, or member of the clergy from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence; and

     (2)  An employer may verify an employee's status as a domestic or sexual violence victim not more than once every six months following the date the employer:

          (A)  Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

          (B)  Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

          (C)  Received verification that the employee is a domestic or sexual violence victim;

          provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer may not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

     (c)  It shall be an unlawful discriminatory practice to engage in any of the actions set forth in subsection (a) in relation to a person because of the perception that the person possesses any particular characteristic or characteristics listed in paragraphs (a)(1) to (a)(9); the perception that the person is associated with a person who possesses, or is perceived to possess, any particular characteristic or characteristics listed in paragraphs (a)(1) to (a)(9); or the intersection or combination of any particular characteristics listed in paragraphs (a)(1) to (a)(9)."

     SECTION 5.  Section 489-3, Hawaii Revised Statutes, is amended to read as follows:

     "§489-3  Discriminatory practices prohibition.  Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race; sex, including gender identity or expression; sexual orientation; color; religion; ancestry; [or] disability, including the use of a service animal[,]; a perception that a person possesses any aforementioned characteristic or characteristics; a perception that a person is associated with a person who possesses, or is perceived to possess, any aforementioned characteristic or characteristics; or an intersection or combination of the aforementioned characteristics in relation to a person, are prohibited."

     SECTION 6.  Section 515-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  It is a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson, because of race; sex, including gender identity or expression; sexual orientation; color; religion; marital status; familial status; ancestry; disability; age; [or] human immunodeficiency virus infection[:]; a perception that a person possesses any aforementioned characteristic or characteristics; a perception that a person is associated with a person who possesses, or is perceived to possess, any aforementioned characteristic or characteristics; or an intersection or combination of any aforementioned characteristics in relation to a person:

     (1)  To refuse to engage in a real estate transaction with a person;

     (2)  To discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (3)  To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

     (4)  To refuse to negotiate for a real estate transaction with a person;

     (5)  To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is available; fail to bring a property listing to the person's attention; refuse to permit the person to inspect real property; or steer a person seeking to engage in a real estate transaction;

     (6)  To offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction;

     (7)  To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for human immunodeficiency virus infection, the causative agent of acquired immunodeficiency syndrome;

     (8)  To refuse to permit, at the expense of a person with a disability, reasonable modifications to existing premises occupied or to be occupied by the person if modifications may be necessary to afford the person full enjoyment of the premises; provided that a real estate broker or salesperson, where it is reasonable to do so, may condition permission for a modification on the person agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

     (9)  To refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an assistance animal, reasonable restrictions may be imposed; provided further that if the disability is not readily apparent, an owner or other person engaging in a real estate transaction may request information that verifies that the person has a disability, defined as a physical or mental impairment that substantially limits a major life activity.  An owner or other person engaging in a real estate transaction shall not request medical records or access to health care providers, and shall not inquire as to the diagnosis, nature, or severity of the person's disability.  If the disability-related need for an assistance animal is not readily apparent, an owner or other person engaging in a real estate transaction may request verification that the assistance animal is needed to alleviate one or more symptoms of the person's disability.  Verification may be provided by a letter or other communication from the person's treating health care professional, mental health professional, or social worker.  Possession of a vest or other distinguishing animal garment, tag, or registration documents that are commonly purchased online and purporting to identify an animal as a service animal or assistance animal shall not constitute valid verification;

    (10)  In connection with the design and construction of covered multifamily housing accommodations for first occupancy after March 13, 1991, to fail to design and construct housing accommodations in such a manner that:

          (A)  The housing accommodations have at least one accessible entrance, unless it is impractical to do so because of the terrain or unusual characteristics of the site; and

          (B)  With respect to housing accommodations with an accessible building entrance:

              (i)  The public use and common use portions of the housing accommodations are accessible to and usable by persons with disabilities;

             (ii)  Doors allow passage by persons in wheelchairs; and

            (iii)  All premises within covered multifamily housing accommodations contain an accessible route into and through the housing accommodations; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; reinforcements in the bathroom walls allow installation of grab bars; and kitchens and bathrooms are accessible by wheelchair; or

    (11)  To discriminate against or deny a person access to or membership or participation in any multiple listing service, real estate broker's organization, or other service, organization, or facility involved either directly or indirectly in real estate transactions, or to discriminate against any person in the terms or conditions of access, membership, or participation."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect upon its approval.

Report Title:

Anti-discrimination; Prohibitions; Certain Characteristics; Intersectionality

Description:

Prohibits discrimination based on:  (1) The perception that a person possesses certain characteristics; (2) The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or (3) The intersection or combination of two or more specified characteristics in relation to a person.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

STAND. COM. REP. NO.  1156-26

Honolulu, Hawaii

                , 2026

RE:   H.B. No. 1878

      H.D. 2

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Madame:

     Your Committee on Judiciary & Hawaiian Affairs, to which was referred H.B. No. 1878, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO DISCRIMINATION,"

begs leave to report as follows:

     The purpose of this measure is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.

     Your Committee received testimony in support of this measure from the Hawaiʻi Civil Rights Commission; Hawaiʻi State Lesbian, Gay, Bisexual, Transgender, Queer Plus Commission; AAUW of Hawaii; Pride at Work - Hawaiʻi; Haʻaheo, ʻOhana, Kaulike, Ui PAC; Indivisible Leeward Oahu; Visibility Brigade Honolulu; Stonewall Caucus of the Democratic Party of Hawaiʻi; ACLU of Hawaiʻi; Fujiwara and Rosenbaum, LLLC; and numerous individuals.  Your Committee received testimony in opposition to this measure from the Society of Human Resources Management – Hawaii.  Your Committee received comments on this measure from the Department of Education.

     Your Committee finds the discrimination faced by an individual is often multifaceted and is not necessarily founded on a single characteristic or basis and can be based on the intersectionality or a combination of multiple factors.

     Your Committee further finds that in Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 14 1994), the United States Ninth Circuit Court of Appeals held that when a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis or combination of those factors, not just on any one protected characteristic by itself.  This measure is to ensure that the protections established in Lam and adopted in legal practice are codified into existing law.

     Your Committee has amended this measure by making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Judiciary & Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1878, H.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as H.B. No. 1878, H.D. 2.

Respectfully submitted on behalf of the members of the Committee on Judiciary & Hawaiian Affairs,

STAND. COM. REP. NO.  485-26

Honolulu, Hawaii

                , 2026

RE:   H.B. No. 1878

      H.D. 1

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Madame:

     Your Committee on Labor, to which was referred H.B. No. 1878 entitled:

"A BILL FOR AN ACT RELATING TO DISCRIMINATION,"

begs leave to report as follows:

     The purpose of this measure is to prohibit discrimination based on:

     (1)  The perception that a person possesses certain characteristics;

     (2)  The perception that a person is associated with a person who possesses, or is perceived to possess, certain characteristics; or

     (3)  The intersection or combination of two or more specified characteristics in relation to a person.  

     Your Committee received testimony in support of this measure from the Hawaiʻi Civil Rights Commission; Hawaiʻi State Lesbian, Gay, Bisexual, Transgender, Queer Plus Commission; AAUW of Hawaiʻi; Pride at Work - Hawaiʻi; ACLU Hawaiʻi; and six individuals.  Your Committee received testimony in opposition to this measure from Society of Human Resource Management Hawaiʻi.  Your Committee received comments on this measure from the Department of Education.

     Your Committee finds that discrimination in Hawaii can occur not only on the basis of a single protected characteristic but also through the combination or intersection of multiple characteristics, as recognized in Hawaii case law.  This measure addresses that concern by expressly prohibiting discrimination based on perceived traits, associations, and intersectional characteristics to ensure that state law fully reflects existing practice and provides comprehensive protections.

     Your Committee has amended this measure by:

     (1)  Changing the effective date to July 1, 3000, to encourage further discussion; and

     (2)  Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Labor that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1878, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1878, H.D. 1, and be referred to your Committee on Judiciary & Hawaiian Affairs.

Respectfully submitted on behalf of the members of the Committee on Labor,