HAR §12-46-1. Definitions

As used in this chapter, unless the context otherwise requires: "Aggrieved person" means any person who shall be adversely affected by an action, decision, order, or rule of the commission or who shall be adversely affected by the action or conduct of any person if the action or conduct is within the commission's jurisdiction. "Ancestry" means national origin; an individual's or ancestor's place of origin; or the physical, cultural, or linguistic characteristics of an ethnic group, or: (1) Marriage to or association with persons of an ancestral group; (2) Membership in or association with an organization identified with or seeking to promote the interest of an ancestral group; (3) Attendance or participation in schools, churches, temples, or mosques, generally used by persons of an ancestral group; or (4) Because an individual's name or spouse's name is associated with an ancestral group. "Arrest and court record" shall be as defined in section 378-1, HRS. "Attorney general" means the state attorney general or any deputy of the state attorney general. "Because of sex" shall be as defined in section 378-1, HRS. "Bona fide retirement, pension, employee benefit, or insurance plan" means any plan, program, or policy of an employer, including any retirement, pension, or insurance plan, which is in writing and has been communicated to eligible or affected employees and which is not a pretext for age discrimination. The plan shall have the intent and purpose of providing an ~6-8 ( employee with insurance during employment or with income upon retirement. "Commission" means the civil rights commission established by sections 368-2 and 368-3, HRS. "Complaint" means a written statement filed with the commission pursuant to this chapter and section 368-11, HRS, alleging an unlawful discriminatory practice within the meaning of chapter 368 or 489 or 515 or part I of chapter 378, HRS. "Complainant" means the person who has filed a complaint pursuant to this chapter. "Conviction" means an adjudication by a court of competent jurisdiction that the defendant committed a crime. A "conviction" does not include confidential final judgments pursuant to section 571-84, HRS, or judgments such as a deferred acceptance of no contest plea that does not ultimately result in a conviction. "Declaratory relief" means the commission's declaration as to the applicability or non- applicability with respect to a factual situation of any rule or order of the commission, or of a statute which the commission is required to administer or enforce. "Demonstrates" means meets the burdens of production and persuasion. "Domestic or sexual violence victim" shall be as defined in section 378-1, HRS. "EEOC" means the United States Equal Employment Opportunity Commission or any of its designated representatives. "Employer" shall be as defined in section 378-1, HRS. "Employment" shall be as defined in section 378- 1, HRS, and includes services performed by an individual for wages or under any contract of hire regardless of whether the common-law relationship of master and servant exists unless it is shown that: (1) The individual has been and will continue to be free from control or direction over the t;6-9 r ( performance of the service, both under the individual's contract of hire and in fact; (2) The service is either outside the usual course of the business for which the service is performed or that the service is performed outside of all the places of business of the enterprise for which the service is performed; and (3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service. "Employment agency" shall be as defined in section 378-1, HRS. "Executive director" means the executive director appointed by the commission pursuant to section 368-3, HRS, or the executive director's designee. "Final order" or "final decision" means an order issued by the commission in accordance with section 368-2(b), HRS. "Gender identity or expression" shall be as defined in section 378-1, HRS. "Harassment" is defined in HAR §§ 12-46-109, 12- 46-175 and includes verbal, visual, or physical condJct relating to an individual's protected basis set forth in chapters 368, 378 part I, 489 and 515 HRS, when the conduct: (1) Bas the purpose or effect of creating an intimidating, hostile, or offensive environment; (2) lias the purpose or effect of unreasonably interfering with an individual's performance; or (3) Otherwise adversely affects an individual's employment, access to state and state-funded services, or full and equal enjoyment of real property or public accommodation. "Fringe benefits" includes medical, hospital, accident, life insurance and retirement benefits, 46-10 r ( profit-sharing and bonus plans, leave, and other terms, conditions, and privileges of employment. "Hearings examiner" means a person, duly appointed by the commission pursuant to section 368-3, HRS, and authorized to hold a hearing for the purpose of taking evidence or oral argument and making a decision in any case or controversy within the jurisdiction of the commission. "Hearings relief" means the determination by the commission of the legal rights, duties, or privileges of specific parties which are required by law to be determined after an opportunity for agency hearing. "HRS" means Hawaii Revised Statutes. "Investigating examiner" means the person designated by the executive director to conduct an investigation of a complaint. "Labor organization" shall be as defined in section 378-1, HRS. "Marital status" shall be as defined in section 3 7 8 - 1 , I-I RS . "Party" means the commission, if named, permitted, or entitled as of right to participate in a proceeding, each person named in a proceeding, or any interested or aggrieved person permitted or entitled as of right to participate in a proceeding before the commission in the capacity of a petitioner, complainant, respondent, intervenor, or in a capacity other than that of a witness. "Person" means individuals, partnerships, corporations, associations, or public or private organizations of any character, other than the commission. "Petition" means an application to the commission by a party which seeks relief pursuant to this chapter. "Petitioner" means a party who files a petition with the commission pursuant to this chapter. "Protected basis" means any category listed in sections 368-1.5, 378-2 (a) (1), 489-3 or 515-3, HRS. 4 6-11 r ( "Religion" includes all aspects of religious observance, practice, and belief. "Religious accommodation" means an affirmative duty to reasonably resolve a conflict resulting from an employee's or prospective employee's religious observance or practice with the terms or conditions of employment. "Religious practice" includes moral or ethical beliefs, which are sincerely held with the strength of traditional religious views. "Remedy" means any remedy in section 368-17, HRS, including any punitive damages award determined pursuant to standards prescribed by the Hawaii Supreme Court. "Respondent" means the party against whom the complaint or petition is filed, the party against whom relief is sought, or any party who contests or controverts a proceeding or petition. "Rule" shall have the same meaning as provided in section 91-1(4), HRS. "Rule relief" means the adoption, modification, or repeal of any regulatory rule by the commission. "Sex" means the state of being male or female and the conditions associated therewith, and gender identity or expression. "Sexual orientation" shall be as defined in section 378-1, HRS. "Single" means the state of being unmarried, divorced, separated, or widowed. "706 agency" means a state or local agency which the EEOC has determined satisfies the criteria stated in section 706(c) of Title VII (42 U.S.C. §2000e- 5 (c)). "Title VII" means Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §2000e-17). "Unlawful discriminatory practice" includes the term "unfair discriminatory practice," or like terms, as may be used in chapters 368, 489, 515, and part I of chapter 378, HRS. [Eff 12/31/90; am 5/1/92; am 46-12 r ( 11/4/93; am and comp 3) (Imp: HRS §368-3) (Auth: HRS §368-