Race and Color Discrimination Under Hawaii Employment Law

Title VII and the Hawaii Revised Statutes (Chapter 378) prohibit employment discrimination on the basis of race and color. The term "race" generally includes all distinctive racial characteristics, such as physical characteristics (color, hair, or facial features), culture (for example, cultural grooming practices or racially distinctive accents such as a "Black accent" or "sounds White"), and race-linked illnesses (for example, sickle anemia, which primarily affects persons of African descent). Discrimination based on someone's name might also constitute race discrimination.

Discrimination and Definition of "Color"

The term "color" has been interpreted to mean pigmentation, complexion, or skin shade, or tone. Although color and race discrimination often overlap, a person may allege color discrimination without alleging race discrimination. For example, a darker-skinned Hispanic person may claim color discrimination when the employer allegedly favored lighter-skinned Hispanics over darker-skinned Hispanics. 

Color discrimination may occur not only between persons of the same race, but also between persons of different races. For example, a discrimination claim may exist where a plaintiff alleges that he and other dark skinned security guards were treated less favorably than lighter skinned minorities and whites.

Possible Defenses to Employment Discrimination

Title VII generally allows employers to establish a bona fide occupational qualification ("BFOQ") as a defense to employment discrimination claims. Under this exception, an employer may make employment decisions based on an employee's or applicant's protected characteristic if it is a BFOQ reasonably necessary to the normal operation of that business. For example, a film or play director might consider only female applicants to play the role of a woman.

Under Title VII, race and color can never be considered a BFOQ. Unlike federal law, however, Hawaii law permits employers to establish race or color as a BFOQ affirmative defense.  

Types of Discrimination at Work

Race or color discrimination, like all Title VII and Hawaii law protected characteristics, may take the form of disparate treatment or disparate impact. In disparate treatment claims, race or color is a motivating factor for the employment decision. Evidence of disparate treatment may include discriminatory statements referring to a person's race or color. While some comments may have overt racial connotations, some statements may have more subtle racial references. In a recent case, the United States Supreme Court ruled that the term "boy", standing alone, may be evidence of racial animus.

In addition to racially tinged statements, evidence of disparate treatment can be presented from a comparison of similarly situated persons of a different race, the company's personnel policies or practices, the decision maker's race, and statistical evidence.

In disparate impact claims, an employment policy that appears neutral has a significant negative effect on a protected group. Disparate impact discrimination because of race or color is defensible if the job requirement or other policy creating the impact is job-related and consistent with business necessity. In one significant case, an appearance policy requiring employees to be clean shaven was found to disparately impact African-American men, who can uniquely suffer from a skin condition that makes shaving very painful. A defense to a disparate impact case may be asserted if the neutral policy is necessary for safety reasons.

In the Hawaii Civil Rights Commission's ("HCRC") Guideline for Pre-Employment Inquiries (Application Forms and Job Interviews), the HCRC expressly identifies certain areas of inquiry that may result in a per se violation of the law. Not surprisingly, an applicant's race, skin color, eye and hair color, and so on, or other questions directly or indirectly indicating race or color, including a person’s height (unless it is a BFOQ), are prohibited areas of inquiry. More surprisingly, such inquiries may result in liability for the employer even if the questions had no impact on the selection process.