Illegal Discrimination in Public Accommodations under Hawaii Law

Under Hawaii law, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

Under HRS Chapter 389, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

The Hawaii Civil Rights Commission (“HCRC”) has established that all owners and operators of public accommodations are liable for the discriminatory acts of its employees and agents, regardless of whether the acts were authorized or even forbidden, and regardless of whether the owners or operators knew or should have known that the act occurred.

The HCRC is responsible for receiving and investigating complaints from the public concerning any alleged Chapter 489 violations. The five-member Commission also conducts hearings, commences civil action in circuit court and orders legal and equitable relief.

The HCRC has held that unlawful discrimination under Chapter 489 can be established by proving:

1.a per se violation by an owner or agent of a public accommodation
2.direct evidence of discriminatory motive or intent
3.circumstantial evidence of discriminatory motive or intent

A per se violation of Chapter 489 is established if a customer shows, by a preponderance of the evidence, that an owner or employee or even agent of a public accommodation made a racial or sexist insult to a customer, or about a customer, in the course of serving that customer. In the HCRC’s view Chapter 489 violations can occur in the course of an employee’s routine dealings with customers or other members of the general public.

The HCRC has held in decisions that any customer who suffers a single, isolated racial or sexist remark in the course of being served has been denied the full and equal enjoyment of that public accommodation’s goods, services, facilities, privileges, advantages, and accommodations on the basis of a protected characteristic.

The HCRC has ruled that owners and operators of a public accommodation may also be liable for acts of third party individuals who are not employees or agents, if the owner or operator knew or should have known of the conduct, had sufficient control over the third party, and failed to take immediate and appropriate corrective action. Corrective action is immediate and appropriate if it: (1) involves a prompt and thorough investigation of the allegations; (2) ends the discriminatory conduct; and (3) deters future discriminatory conduct by the same offender or others.

Although the statutory language and legislative history of Chapter 489 is silent as to whether an owner or employee may be individually liable for violating the law, other provisions within Chapter 489 indicate that penalties may be assessed against individuals as well as public accommodations for prohibited discriminatory practices. The HCRC has also ruled that owners, operators, employees, and agents, may be individually liable for violations of the public accommodations law.

The broad reach of Chapter 489 also applies to successor owners and operators of a public accommodation. A successor will be liable for the discriminatory acts committed by its predecessor if there is a substantial continuity of identity in the entity. In addition, it is a discriminatory practice for two or more persons to conspire to retaliate or discriminate against a person because the person has opposed an unfair discriminatory practice, to aid, abet, incite, or coerce a person to engage in a discriminatory practice; or willfully, to obstruct, or prevent, a person from complying with Chapter 489.

The purposes of Chapter 489 include giving victims of discrimination by public accommodations complete relief. As a method of obtaining restitution for injuries and securing assurances that future discriminatory acts will not occur, Chapter 489 requires the assessment of fines for each violation, and establishes that each day of violation constitutes a separate violation. The civil penalty imposed for each violation is a fine which may range between $500 and $10,000. In addition to a civil penalty, owners and operators of public accommodations found guilty of violating the provisions of Chapter 489 will find themselves obligated to pay compensatory damages, attorney’s fees, and the greater of $1,000 or three times the damages sustained by the plaintiff, whichever sum is the greater.