HAR §12-46-101
HAR §12-46-101. General provisions
Cite as Haw. Code R. § 12-46-101
(a)
Chapter
378, HRS, prohibits any employer or other covered
entity from discriminating in employment because of
sex including gender identity or expression and sexual
orientation except where sex is a bona fide
occupational qualification (BFOQ).
Chapter 378, HRS,
and this subchapter apply to all forms of sex
discrimination based on an individual's actual or
perceived gender identity or expression or sexual
orientation, and regardless of whether an individual's
gender-related identity or expression or sexual
orientation is the same as or different from that
traditionally associated with the individual's sex at
birth.
(b)
The principle of non-discrimination requires
that individuals be considered on the basis of
individual capacities and not on the
characteristics generally attributed
12/31/90; am and comp
]
3, 378-8)
(Imp: HRS §§368-3, 378-8)
basis of any
to a group.
[Eff
(Auth: HRS §§368-
§12-46-102
Bona fide occupational qualification
(BFOQ) .
(a)
The burden of proving that sex is a BFOQ
rests upon the employer or other covered entity
seeking the exception.
(b)
The BFOQ exception as to sex shall be
strictly and narrowly construed.
The commission
believes that most jobs can be performed equally well
by persons without regard to sex, and that individual
differences rather than sex differences are the
determining factors.
(c)
An employer or other covered entity may make
an inquiry of the commission as to whether sex is a
46-69
r
(
BFOQ for a particular job.
The commission shall give
informal opinions in response to such inquiries.
(d)
The following situations do not constitute
BFOQ exceptions to chapter 378, HRS:
(1)
The refusal to hire or promote a female
because of her sex based on assumptions of
the comparative employment characteristics
of females in general, e.g., the assumption
that the absence or turnover rate among
females is higher than among males; or
(2)
The refusal to hire or promote an individual
based on stereotyped characterizations of
the sexes, e.g., that males are less capable
of assembling intricate equipment; that
females are less capable of being aggressive
salespersons; or
(3)
The refusal to hire, refer, recommend, or
consider for a position, or promote an
individual because of preferences or sense
of propriety of co-workers, the employer,
client, or customer; or
(4)
The fact that the employer may have to
provide separate facilities because of a
person's sex will not justify discrimination
under the BFOQ exception unless the expense
would clearly be unreasonable.
(e)
The following situations are recognized as
those in which a distinction based on sex may be a
bona fide occupational qualification:
(1)
Where it is necessary for the purpose of
authenticity or genuineness, e.g., an actor
to play a male role or a female to model
feminine apparel; or
(2)
Where public morals demand that one sex be
given preference over the other in
performing a particular function, e.g., a
masseuse to work at a women's health club; a
male to work as an attendant in a man's
washroom; a female to work as a fitter of
feminine apparel.
~6-70
(
(f)
Employers or other covered entities shall
assign job duties and make other reasonable
accommodations so as to minimize the number
for which sex is a BFOQ.
[Eff 12/31/90; am
] (Auth: HRS §§368-3, 378-8)
§§368-3, 378-3, 378-8)
of jobs
and comp
(Imp: HRS