Public Breastfeeding Law
[PART II.] BREASTFEEDING IN PUBLIC ACCOMMODATIONS
§489-21 Discriminatory practices; breastfeeding. It is a discriminatory practice to deny, or attempt to deny, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodations to a woman because she is breastfeeding a child. [L 2000, c 227, pt of §2]
§489-22 Private cause of action. Any person who is injured by an unlawful discriminatory practice under this part may bring proceedings to enjoin the unlawful discriminatory practice, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees, the cost of suit, and $100. Any action under this part shall be subject to the jurisdiction of the district courts as provided in chapter 604, and may be commenced and conducted in the small claims division of the district court.
Workplace Pumping Law
§378-2 Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:
(7) For any employer or labor organization to refuse to hire or employ or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term “breastfeeds” means the feeding of a child directly from the breast;
[PART VII.] OPPORTUNITY TO EXPRESS MILK
§378-91 Definitions. As used in this part:
“Employee” means an individual who performs a service for wages or other remuneration under a contract for hire, written or oral, or expressed or implied. “Employee” includes an individual employed by the State or a political subdivision of the State.
“Employer” means a person who has one or more employees. “Employer” includes an agent of an employer or of the State or a political subdivision thereof, but does not include the United States. [L 2013, c 249, pt of §2]
§378-92 Opportunity to express milk.
(a) An employer shall provide:
(1) Reasonable break time for an employee to express milk for the employee’s nursing child for one year after the child’s birth each time the employee has a need to express breast milk; and
(2) A location, other than the restroom, that is shielded from view and free from intrusion from coworkers and the public that may be used by an employee to express breast milk.
(b) Every employer covered by this section shall post a notice in a conspicuous place accessible to employees and use other appropriate means to keep the employer’s employees informed of the protections and obligations under this part.
(c) Subsection (a) shall not apply to any employer who has fewer than twenty employees if the employer can show that the requirements under subsection (a) would impose an undue hardship by causing the employer significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer’s business.
SECTION 3. Section 378-10, Hawaii Revised Statutes, is
§378-93 Civil actions for injunctive relief or damages.
(a) An employee who alleges a violation of this part may bring a civil action for appropriate injunctive relief, actual damages, or both within two years after the occurrence of the alleged violation.
(b) A cause of action pursuant to subsection (a) may be brought in the appropriate court in the circuit where the alleged violation occurred, where the plaintiff resides, or where the defendant resides or has a [principal] place of business.
(c) A defendant who violates this part shall be fined $500 for each violation. A civil fine that is ordered pursuant to this section shall be deposited with the director of finance to the credit of the state general fund.
(d) For purposes of this section, “damages” means damages for injury or loss caused by each violation of this part, including reasonable attorney’s fees.
§378-4 Enforcement jurisdiction. The commission shall have jurisdiction over the subject of discriminatory practices made unlawful by this part. Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may file with the commission a complaint in accordance with the procedure established under chapter 368. [L 1981, c 94, pt of §2; am L 1989, c 386, §8]
§368-3 Powers and functions of commission. The commission shall have the following powers and functions:
(1) To receive, investigate, and conciliate complaints alleging any unlawful discriminatory practice under part I of chapter 489, chapter 515, and part I of chapter 378, and complaints filed under this chapter, and conduct proceedings on complaints alleging unlawful practices where conciliatory efforts are inappropriate or unsuccessful;
(2) To hold hearings and make inquiries, as it deems necessary, to carry out properly its functions and powers, and for the purpose of these hearings and inquiries, to administer oaths and affirmations, conduct depositions, compel the attendance of parties and witnesses and the production of documents by the issuance of subpoenas, examine parties and witnesses under oath, require answers to interrogatories, and delegate these powers to any member of the commission or any person appointed by the commission for the performance of its functions;
(3) To commence civil action in circuit court to seek appropriate relief, including the enforcement of any commission order, conciliation agreement, or predetermination settlement;
(4) To issue the right to sue to a complainant;
(5) To order appropriate legal and equitable relief or affirmative action when a violation is found;
(6) To issue publications and results of investigations and research that, in its judgment, will tend to promote goodwill and minimize or eliminate discrimination in employment, housing, and public accommodations;
(7) To submit annually to the governor and the legislature a written report of its activities and recommendations for administrative or statutory changes required to further the purposes of this chapter;
(8) To appoint an executive director, deputy executive director, attorneys, and hearings examiners who shall be exempt from chapter 76, and investigators and other necessary support personnel who shall be subject to chapter 76. Section 28-8.3 notwithstanding, an attorney employed by the commission as a full-time staff member may represent the commission in litigation, draft legal documents for the commission, provide other necessary legal services to the commission, and shall not be deemed to be a deputy attorney general; and
(9) To adopt rules under chapter 91. [L 1988, c 219, pt of §1; am L 1989, c 386, §6; am L 1991, c 80, §1 and c 252, §2; am L Sp 1993, c 8, §53; am L 2000, c 253, §150; am L 2001, c 55, §17(1)]
[§368-12] Notice of right to sue. The commission may issue a notice of right to sue upon written request of the complainant. Within ninety days after receipt of a notice of right to sue, the complainant may bring a civil action under this chapter. The commission may intervene in a civil action brought pursuant to this chapter if the case is of general importance. [L 1989, c 386, pt of §1]
§368-13 Investigation and conciliation of complaint. (a) After the filing of a complaint, or whenever it appears to the commission that an unlawful discriminatory practice may have been committed, the commission’s executive director shall make an investigation in connection therewith. At any time after the filing of a complaint but prior to the issuance of a determination as to whether there is or is not reasonable cause to believe that part I of chapter 489, chapter 515, part I of chapter 378, or this chapter has been violated, the parties may agree to resolve the complaint through a predetermination settlement.
(b) The executive director shall issue a determination of whether or not there is reasonable cause to believe that an unlawful discriminatory practice has occurred within one-hundred and eighty days from the date of filing a complaint unless the commission grants an extension of time to issue a determination.
(c) If the executive director makes a determination that there is no reasonable cause to believe that an unlawful discriminatory practice has occurred in a complaint filed, the executive director shall promptly notify the parties in writing. The notice to complainant shall indicate also that the complainant may bring a civil action as provided under section 368-12.
(d) When the executive director determines after the investigation that there is reasonable cause to believe that an unlawful discriminatory practice within the commission’s jurisdiction has been committed, the executive director shall immediately endeavor to eliminate any alleged unlawful discriminatory practice by informal methods such as conference, conciliation, and persuasion.
(e) Where the executive director has determined that there is reasonable cause to believe that an unlawful discriminatory practice has occurred and has been unable to secure from the respondent a conciliation agreement acceptable to the commission within one-hundred and eighty days of the filing of the complaint unless the commission has granted an extension of time, the executive director shall demand that the respondent cease the unlawful discriminatory practice. The executive director’s determination that a final conciliation demand is to be made shall be subject to reconsideration by the commission on its own initiative but shall not be subject to judicial review. The executive director may demand appropriate affirmative action as, in the judgment of the executive director, will effectuate the purpose of this chapter, and include a requirement for reporting on the manner of compliance. [L 1989, c 386, pt of §1; am L 1991, c 252, §4; am L 2001, c 55, §17(4)]
§368-14 Commission hearings. (a) If, fifteen days after service of the final conciliation demand, the commission finds that conciliation will not resolve the complaint, the commission shall appoint a hearings examiner and schedule a contested case hearing that shall be held in accordance with chapter 91. The case in support of the complaint shall be presented at the hearing by counsel provided by the commission. Following the completion of the contested case hearing, the hearings examiner shall issue a proposed decision containing a statement of reasons including a determination of each issue of fact or law necessary to the proposed decision which shall be served upon the parties. Any party adversely affected by the proposed decision may file exceptions and present argument to the commission which shall consider the whole record or such portions thereof as may be cited by the parties. If the commission finds that unlawful discrimination has occurred, the commission shall issue a decision and order in accordance with chapter 91 requiring the respondent to cease the unlawful practice and to take appropriate remedial action. If there is no finding of discrimination, the commission shall issue an order dismissing the case.
(b) At any time after a complaint is filed, the commission may file a petition in the circuit court in the circuit in which the subject of the complaint occurred, or in the circuit in which a respondent resides or transacts business, seeking appropriate temporary relief against the respondent, pending final determination of proceedings under this chapter, including an order or decree restraining the respondent from doing or procuring any act tending to render ineffectual any order the commission may enter with respect to the complaint. The court may grant the temporary relief or restraining order as it deems just and proper, but no relief or order extending beyond five days shall be granted except by consent of the respondent or after hearing upon notice to the respondent and a finding by the court that there is reasonable cause to believe that the respondent has engaged in a discriminatory practice.
If a complaint is dismissed by final order of the commission or a court after a court has granted temporary relief or a restraining order under this subsection, the respondent is entitled to recover from the State damages and costs, not to exceed a total of $500, sustained by reason of the temporary relief or restraining order in an action in the court that granted the temporary relief or restraining order. [L 1989, c 386, pt of §1; am L 1991, c 252, §5]
§368-17 Remedies. (a) The remedies ordered by the commission or the court under this chapter may include compensatory and punitive damages and legal and equitable relief, including, but not limited to:
(1) Hiring, reinstatement, or upgrading of employees with or without back pay;
(2) Admission or restoration of individuals to labor organization membership, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program, with the utilization of objective criteria in the admission of persons to those programs;
(3) Admission of persons to a public accommodation or an educational institution;
(4) Sale, exchange, lease, rental, assignment, or sublease of real property to a person;
(5) Extension to all persons of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the respondent;
(6) Reporting as to the manner of compliance;
(7) Requiring the posting of notices in a conspicuous place that the commission may publish or cause to be published setting forth requirements for compliance with civil rights law or other relevant information that the commission determines necessary to explain those laws;
(8) Payment to the complainant of damages for an injury or loss caused by a violation of part I of chapter 489, chapter 515, part I of chapter 378, or this chapter, including a reasonable attorney’s fee;
(9) Payment to the complainant of all or a portion of the costs of maintaining the action before the commission, including reasonable attorney’s fees and expert witness fees, when the commission determines that award to be appropriate; and
(10) Other relief the commission or the court deems appropriate.