HAR §12-46-193. Defenses

An employer or other covered entity may raise defenses to an allegation of discrimination under this subchapter including, but not limited to, the following: (1) Inability to perform. It may be a defense to a charge of discrimination brought under this subchapter that a person with a disability is unable to perform an essential job function with or without a reasonable accommodation. (2) Business necessity. It may be a defense to a charge of discrimjnation brought under this subchapter that: (A) An alleged application of qualification standards, tests, or criteria used in the selection of employees screens out or tends to screen out or otherwise denies a job or benefit to a person with a disability; or (B) A uniformly applied standard, criterion, method of administration, or policy has a disparate impact on a person with a disability or a class of persons with disabilities; and the challenged standard, test, criterion, method, or policy has been shown by the employer or other covered entity to be job-related and consistent with business necessity in light of the t;6-129 ( Example: factors in the definition of job- related and consistent with business necessity; and performance of essential job functions cannot be accomplished with reasonable accommodation, as required under this subchapter. A job applicant for a field sales representative position, who was not hired, challenges a driver's license requirement as discriminating against persons who cannot obtain licenses because of their disabilities. An employer may be able to defend by showing that driving was an essential job function, no other transportation alternative (i.e. bus or paratransit service) having less adverse effects upon persons with disabilities was available; and any accommodation would cause an undue hardship because field sales representatives had to work alone. (3) Bona fide occupational qualification. It may be a defense to a charge of discrimination that an application of qualification standards, tests, selection criteria, policies, or methods of administration which is applied to a class of persons on the basis of a specified physical or mental impairment, medical condition, or disability has been shown by the employer or other covered entity to be a bona fide occupational qualification. Example: An employer which does not consider for employment a person with hypertension because of a policy against hiring persons with hypertension due to safety concerns must establish that all or substantially all persons with hypertension, 46-13C r regardless of severity, would pose a direct threat to self or others; no reasonable accommodations are possible; and the essence of the business would be undermined if all persons with hypertension were not excluded. (4) Undue hardship. It may be a defense to a charge of not making reasonable accommodation that a requested or necessary accommodation would impose an undue hardship on the operation of the business. Example: An employer would not be required to make unreasonable structural changes or expensive equipment alterations if there is significant difficulty or expense based upon the factors listed in the definition of undue hardship. ( s) ( 6) ( 7) Direct threat. It may be a defense to a charge of discrimination under this subchapter that a person with a disability posed a direct threat to the health or safety of the person or others that cannot be eliminated or reduced by reasonable accommodation. Specific permitted activity. It may be a defense to a charge of discrimination that the alleged discriminatory action is specifically permitted under this subchapter or by section 378-3, HRS. Good faith. If the employer or covered entity demonstrates good faith efforts, in consultation with the person with a disability who has requested an accommodation, to identify and make a reasonable accommodation that would not cause an undue hardship on the operation of the business, the employer or other covered entity may be liable for compensatory 46-131 (8) ( damages and other relief but would not be liable for punitive damages if the good faith offer of accommodation is found to be not reasonable. Claims based on transitory and minor impairments under the "regarded as" prong. It may be a defense to a claim of discrimination by a person claiming coverage under the "regarded as" prong of the definition of disability that the impairment is or would be transitory and minor. A covered entity must demonstrate that the impairment is both "transitory" and "minor." Whether the impairment is or would be transitory and minor is to be determined objectively. An employer or other covered entity may not defeat "regarded as" coverage of a person simply by demonstrating that it subjectively believed the impairment was transitory and minor. [Eff 8/18/94; am 3/5/12; comp ] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2, 378-3) t; 6-132 r ( SUBCHAPTER 20 REAL PROPERTY TRANSACTION DISCRIMINATION