New Law in the Brief: Act 34 of the 2011 Hawaii Legislative Session

Act 34: Protecting Gender Expression or Identity in the Workplace

Business Impact: Act 34 prohibits discrimination on the basis of gender identity or expression as a matter of public policy, specifically with regards to employment.  Basically, if you or the work environment you foster is insensitive to gender expression or identity of your employees, you may face enforcement action by the Hawaii Civil Rights Commission for discriminatory practices.  Discriminating against an employee expressing their preferred gender would be the same as discriminating against women, handicapped persons, or people of a certain race.

Specifics of the Law:  This new law amends two parts of Hawaii law, Section 368 and 378.  By amending Section 368, the law gives the Hawaii Civil Rights Commission (HCRC) the enforcement power over gender identity or expression discrimination cases.  In addition, by amending Section 378, the law aims to prevent discrimination in the workplace by making gender expression and identity a protected status similar to other categories, such as disability, race, age, and sexual orientation.

What Does “Gender Identity or Expression” Mean?

As you may already know the State already protects sexual orientation from discrimination.  You may think that sufficiently covers what is known as “gender identity or expression.”  However, that is not necessarily the case.

Sexual orientation is only describing one’s preference based on the gender of the partner.  In terms of gender expression and identity, a transgender person can have any sexual orientation.  Basically, the gender status is not the same as one sexual preference.  Gender identity is one’ internal feelings of being male or female or along those lines.  Gender expression represents all of the social and behavioral characteristics associated with femaleness or maleness.

Example

Consider a male truck driver wishing to make the transition to female.  Their appearance at work continues to be more and more feminine.  Other workers, due to the change, harass the transitioning worker.  The truck driver comes to you to discuss the harassment and gender transition.  If you suspend them for this action, then you would likely  face a visit from the HCRC for discriminating against your employee's gender expression and identity.

Bottom line:  Is your company’s policies and procedures equipped to handle this change in the law?  Does your handbook reflect the changes?  Consider the following situations for reasonable accommodation or to prevent bias in the workplace:

  • Restrooms
  • Self-identification papers, check cards, etc . . .
  • Housing and facilities like locker/dress rooms
  • Dress code

There may be other situations that you may need to safeguard from gender expression or identity discrimination.  You should consider a legal review of your work policies, procedures, and handbooks.

Next law to be covered: Act 37, allowing non-profits to take actions by ballot and electronic voting, use of electronic notice, and conduct of meeting by teleconference. 

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.