December 28th, 2009
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Title VII and Hawai’i Revised Statute 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 (i.e., color, hair, or facial features), culture (i.e., cultural grooming practices or racially distinctive accent such as “Black accent” or “sounds White”), and race-linked illnesses (e.g., sickle anemia primarily affects persons of African descent). ”Race” can also include a person’s name.
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. Read more…
Hawaii employers may require job applicants to undergo a physical examination as part of the hiring process. Employers may also have medical examination requirements for current employees. Whether imposed at the hiring stage or on the current workforce, employers’ physical or mental examination requirements are subject to significant restrictions under federal and state law.
Hawaii’s Employment Practices law and the Americans with Disabilities Act (“ADA”) prohibit employers from discriminating against employees and applicants for employment who have disabilities. As a result, physical examinations cannot be administered or used in a way that unfairly or disproportionately screens out or adversely affects the employment opportunities of disabled individuals. In the hopes of eliminating the unlawful consideration of disabilities in hiring, both Hawaii state and federal law stated that employers may not require medical examinations of job applicants until after conditional offers of employment are made. Employment may be conditioned on the results of the examination only if all entering employees in the same job category are subject to the same examination.
Medical examinations of current employees must be job related and consistent with business necessity. Such examinations must be limited in scope to the employee’s ability to perform specific and essential job functions, or to evaluate an employee’s disability or need for reasonable accommodation. The Hawaii Administrative Rules require the employer to provide the medical examiner with a written job description, including the essential job functions and the Hawaii state regulations defining “reasonable accommodation” and “direct threat.”
All information regarding the medical condition or history of an applicant or employee must be collected and maintained separately as confidential records. If the Company requires an employee to complete a medical examination, the Company should first obtain an authorization form compliant with HIPAA, which prohibits health care providers from releasing protected health information to employers except in limited circumstances.
Moreover, Hawaii law prohibits the release of test results of sexually-transmitted diseases (such as HIV/AIDS) for employment, educational, or housing purposes without the voluntary consent of the tested individual.
Tests for use of illegal drugs are not considered medical examinations.
In a recent decision issued on June 5, 2009, the 5th Circuit Court of Appeals has determined that sleeping and thinking are major life activities the substantial limitation of which caused by a physical or mental impairment can constitute a protected “disability” that requires reasonable accommodation.
The Court also found that a diagnosis of a relapsing-remitting condition like Chronic Fatigue Syndrome “CFS”) may be of sufficient severity and duration to constitute an ADA disability throughout the time period at issue and that a finding of disability was not precluded by the fact that sleep and certain medications relieved to a degree the plaintiff’s symptoms.
Hawaii employers should understand the most critical errors made by the employer in this case. Specifically, the Court found fault in the employer’s argument that the CFS at issue was merely intermittent and therefore did not qualify as a “disability” under the law. The Court also ruled that a reasonable juror could conclude that the employer failed to engage in the legally required “interactive process” once it received from the employee’s physician the request for reasonable accommodation.
Read more…
