INTRODUCTION:

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.

It is clear that Hawaii employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers. Hawaii law also permits individual liability in some cases for violations of the law and unlimited punitive and compensatory damages where appropriate.

FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.

In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer. Specifically, the caps are set by statute as follows:

Number of Employees Cap

015-100 employees $ 050,000

101-200 employees $ 100,000

201-500 employees $ 200,000

500 plus employees $ 300,000

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”

There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.

Second, under federal law individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law. Under state law individuals can be liable for “any person, whether an employee, employer, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices” covered by HRS Chapter 378.

Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.

Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges. Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.

Hawaii law states the employee “shall not be penalized in their terms or conditions of employmentbecause they require time away from work on account of disability resulting from pregnancy, childbirth, or related medical conditions.”

Finally, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.

CONCLUSION:

PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth. Under federal law employers must remember to treat pregnant employees the same as similarly situated employees. However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers often overlook their obligations under state law, especially because of the complexity of the law and the intersection with other statutory protections.

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