Employment Law Journal

Hawaii employers must make accommodations to domestic or sexual violence victims

By Bruce D. Voss

All Hawaii employers must now make “reasonable accommodations in the workplace” for employees who claim to be victims of domestic or sexual violence.

Among other accommodations, the employer must consider changing the employee’s contact information; screening the employee’s telephone calls; restructuring the employee’s job functions; changing the employee’s work location; installing locks and other security devices; and allowing the employee to work flexible hours. An employer can avoid making these accommodations only if it can show it would cause “significant difficulty or expense on the operation of an employer”.

To gain the protection of the statute that went into effect in July 2011, the employee need only provide either a signed written statement stating that the employee has sought assistance relating to domestic or sexual violence, or a police or court record supporting an occurrence of domestic or sexual violence. Employers are allowed to verify an employee’s claimed status as a domestic or sexual violence victim not more than once every six months.

A claimed domestic or sexual violence victim denied “reasonable accommodations” can sue the employer for damages, fees, and costs. The term “domestic or sexual violence victim status” has also been added to the list of protected classes under Hawaii’s general anti-discrimination statute, so employees could sue under that part of the statute as well.

The new law is a classic example of good legislative intentions gone awry in the drafting. As a practical matter, employers have no way of confirming or contesting whether an employee is in fact a victim of domestic or sexual violence. With little or no case law to provide guidance, employers will be hesitant to deny requested accommodations to any employee who claims to be a victim. Employers should consult counsel before denying any requested accommodation, and carefully document communications with the employee who claim protection under the law.

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