FEPA Discrimination Charge and Right-to-Sue Procedure — Hawaii

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FEPA Discrimination Charge and Right-to-Sue Procedure (HAWAI'I)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

TO: [CLIENT NAME]
FROM: [COUNSEL NAME]
DATE: [__/__/____]
RE: Eligibility — Hawai'i Civil Rights Commission Complaint

A.1 Hawai'i's Unique Advantages

A.2 Coverage Analysis

A.3 Protected Class Identified (HRS § 378-2)

☐ Race ☐ Color ☐ Ancestry
☐ Sex ☐ Gender identity ☐ Gender expression
☐ Sexual orientation
☐ Pregnancy / childbirth / related medical conditions
☐ Age (no minimum age — broader than federal ADEA's 40+)
☐ Religion ☐ Disability ☐ Marital status
☐ Arrest and court record (subject to conviction exception)
☐ Reproductive health decisions
☐ Breastfeeding
☐ Credit history / credit report
☐ Domestic violence or sexual violence victim status
☐ National Guard participation
☐ Retaliation (§ 378-2(2))

A.4 Strategic Choice — Forum

☐ HCRC administrative complaint (full investigation, conciliation)
☐ Direct court for sexual harassment only (§ 378-3(10), 2-year SOL, no exhaustion)
☐ HCRC + immediate Notice of Right to Sue request (fast track to court)
☐ Cross-filing with EEOC (federal claims dual-tracked)
☐ State circuit court (preferred — easier summary judgment standard than federal)

Part B — Charge of Discrimination (HCRC Filing)

FILED WITH: Hawai'i Civil Rights Commission
830 Punchbowl Street, Room 411, Honolulu, HI 96813
CROSS-FILED WITH: EEOC Honolulu Local Office — 300 Ala Moana Boulevard, Room 4-257, Honolulu, HI 96850

Re: Complaint of Discriminatory Practice — HRS § 378-2 — [CHARGING PARTY]

B.1 Charging Party (Complainant)

B.2 Respondent

B.3 Cause(s) of Discrimination — HRS § 378-2

☐ Race ☐ Color ☐ Ancestry
☐ Sex ☐ Gender identity / gender expression
☐ Sexual orientation
☐ Pregnancy / childbirth / related medical conditions
☐ Age (any age)
☐ Religion ☐ Disability ☐ Marital status
☐ Arrest and court record
☐ Reproductive health decisions
☐ Breastfeeding
☐ Credit history
☐ Domestic / sexual violence victim status
☐ National Guard participation
☐ Retaliation

B.4 Date(s) of Discrimination

B.5 The Particulars

1. I, [CHARGING PARTY], was employed by Respondent [EMPLOYER] from [__/__/____] to [__/__/____] (or am currently employed) as [POSITION] at [$_____].

2. I am a member of a protected class under HRS § 378-2 because [____________].

3. On [__/__/____], [INDIVIDUAL ACTOR, TITLE] [____________].

4. Similarly situated employees outside my protected class were treated more favorably: [____________].

5. I engaged in protected activity on [__/__/____] by [____________].

6. On [__/__/____], Respondent [terminated / demoted / harassed / failed to accommodate / failed to promote] me.

7. I believe I have been discriminated against in violation of the Hawai'i Employment Practices Act, HRS Chapter 378, Part I, and Title VII of the Civil Rights Act of 1964 / ADA / ADEA (as applicable).

B.6 Verification

I declare under penalty of perjury under the laws of the State of Hawai'i that the foregoing complaint is true and correct.

Subscribed and sworn before me this [____] day of [__________], 20[____].

[____________________]
Notary Public — State of Hawai'i
My commission expires: [__/__/____]

Part C — Right-to-Sue Demand Letter (Request for Notice under HRS § 368-12)

[__/__/____]

Executive Director
Hawai'i Civil Rights Commission
830 Punchbowl Street, Room 411
Honolulu, HI 96813
By certified mail, return receipt requested
Email: [email protected]

Re: Written Request for Notice of Right to Sue — HRS § 368-12 — HCRC Docket No. [_______________] — [COMPLAINANT] v. [RESPONDENT]

Dear Executive Director:

Pursuant to HRS § 368-12, the undersigned Complainant in the above-captioned matter respectfully and formally requests issuance of a Notice of Right to Sue so that the 90-day circuit-court filing window may commence.

1. The above-referenced complaint was filed with the HCRC on [__/__/____].

2. ☐ More than 180 days have elapsed since the complaint was filed.
   ☐ The HCRC has issued findings of [reasonable cause / no reasonable cause].
   ☐ Conciliation has [concluded / failed / not occurred].
   ☐ Complainant elects to pursue private civil action.

3. Complainant hereby makes the written request required by HRS § 368-12 that the Commission issue a Notice of Right to Sue.

4. Complainant acknowledges that upon receipt of the Notice, a civil action must be commenced in the circuit court within 90 days as required by HRS § 368-12.

5. Cross-filed EEOC charge (No. [_______]) status: ☐ Open ☐ Notice of Right to Sue received on [__/__/____].

Please send the Notice of Right to Sue by U.S. mail to the addresses below and by email to counsel of record.

Respectfully,

[____________________]
[COMPLAINANT / Counsel]

Part D — Pre-Suit Civil Complaint (Template)

IN THE CIRCUIT COURT OF THE [____] CIRCUIT
STATE OF HAWAI'I

Civil No. [_______________]
COMPLAINT FOR EMPLOYMENT DISCRIMINATION
(HRS Chapter 378, Part I; HRS § 368-17)
JURY TRIAL DEMANDED

Plaintiff [NAME], by and through undersigned counsel, alleges:

I. PARTIES

1. Plaintiff [NAME] is and at all material times was a resident of [____________], Hawai'i.

2. Defendant [EMPLOYER] is a [Hawai'i corporation / LLC] doing business in [____________], Hawai'i, with at least one employee within the meaning of HRS § 378-1.

II. JURISDICTION AND VENUE

3. This Court has subject-matter jurisdiction pursuant to HRS § 603-21.5 and HRS § 368-17.

4. Venue is proper in the [____] Circuit because the unlawful employment practice occurred and/or Defendant resides or does business in this Circuit.

III. ADMINISTRATIVE EXHAUSTION

5. Plaintiff filed a Complaint of Discriminatory Practice with the HCRC on [__/__/____] (Docket No. [_______]).

6. ☐ HCRC issued a Notice of Right to Sue on [__/__/____]; this action is filed within 90 days of receipt as required by HRS § 368-12.
   ☐ This is a sexual-harassment-only claim filed directly under HRS § 378-3(10); administrative exhaustion is not required and the action is filed within two (2) years of the most recent harassing act.

IV. FACTS

7.–[__]. [Detail factual allegations from charge particulars].

V. CAUSES OF ACTION

Count I — Discrimination based on [____________] in violation of HRS § 378-2(1)(a)
Count II — Retaliation in violation of HRS § 378-2(2)
Count III — Hostile work environment / harassment
Count IV — Failure to accommodate (disability / religion) — HRS § 378-2(1)
Count V — Title VII / ADA / ADEA (parallel federal claims, if dual-filed)
Count VI — Punitive damages (intentional discrimination with reckless disregard)

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants for:

a. Back pay, lost benefits, and lost earning capacity;
b. Front pay and/or reinstatement;
c. Compensatory damages for emotional distress, humiliation, mental anguish (no statutory cap under HRS § 368-17);
d. Punitive damages;
e. Reasonable attorney fees and costs under HRS § 368-17;
f. Pre- and post-judgment interest;
g. Injunctive relief including reinstatement and policy reform;
h. Such other relief as the Court deems proper.

VII. JURY DEMAND

Plaintiff demands a trial by jury on all issues so triable pursuant to HRS § 368-17.

Dated: [__/__/____], at [____________], Hawai'i.

[____________________]
[COUNSEL NAME, HSBA #_____]
[FIRM / ADDRESS / PHONE / EMAIL]
Attorney for Plaintiff

Part E — Pre-Filing Checklist

Coverage and Timing

☐ Employer has 1+ employees — HRS § 378-1 (broadest in nation)
☐ Adverse act within 180 days — HRS § 378-5
☐ 180-day HCRC deadline calendared
☐ 300-day EEOC dual-filing deadline calendared
☐ Sexual-harassment-only? 2-year direct-court SOL applies — § 378-3(10)
☐ Continuing-violation doctrine analyzed
☐ Constitutional basis (Haw. Const. art. I, § 5) noted

Protected-Class Identification

☐ Verified protected class against expansive § 378-2 list
☐ Hawai'i-unique categories considered (credit history, reproductive health, breastfeeding, arrest/court record, National Guard)
☐ All applicable protected classes pleaded

Pre-Complaint Questionnaire (PCQ)

☐ PCQ completed and submitted to HCRC
☐ Intake interview scheduled
☐ Neighbor-island access method confirmed if applicable

Charge Drafting

☐ Complaint identifies each protected class with statutory subsection
☐ All actors named with title
☐ Dates of each adverse act stated
☐ Verification notarized
☐ Cross-filing with EEOC indicated

Filing

☐ Complaint filed with HCRC (online / mail / in-person)
☐ Confirmation of filing date received
☐ EEOC dual-filing confirmation
☐ Litigation hold to client
☐ Preservation letter to employer

Investigation Stage

☐ Position-statement response prepared
☐ Witness list compiled
☐ Document evidence collected
☐ Mediation/conciliation evaluated
☐ Administrative hearing prep (if proceeds that far)

Right to Sue

☐ Written request letter under HRS § 368-12 drafted
☐ Election whether to await full HCRC process or fast-track
☐ Sexual harassment direct-filing option preserved (§ 378-3(10))
☐ Notice of Right to Sue received and date docketed
☐ 90-day circuit-court deadline calendared

Court Filing

☐ Circuit selection ([1st = Oahu], [2nd = Maui], [3rd = Hawai'i], [5th = Kaua'i])
☐ State circuit court vs. federal court analysis (Hawai'i state court preferred for SJ standard)
☐ Complaint drafted
☐ Administrative exhaustion paragraph
☐ All HRS § 378 + parallel federal claims pleaded
☐ Punitive damages pleaded if facts support
☐ Jury demand
☐ Filing fee or IFP

Damages

☐ Back pay calculation
☐ Front pay valuation
☐ Mitigation log
☐ Emotional distress evidence (medical, witness, contemporaneous)
☐ Punitive damages — actual malice / reckless disregard evidence
☐ Attorney-fee timekeeping
☐ No statutory cap on compensatory under HRS § 368-17

Sources and References

• Hawai'i Civil Rights Commission — https://labor.hawaii.gov/hcrc/
• HCRC FAQs — https://labor.hawaii.gov/hcrc/faqs/
• HCRC Forms (PCQ) — https://labor.hawaii.gov/hcrc/forms/
• HRS Chapter 378 (Employment Practices) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0378/
• HRS § 378-2 (Discriminatory practices) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0378/HRS_0378-0002.htm
• HRS § 378-5 (Remedies; 180-day filing) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0378/HRS_0378-0005.htm
• HRS Chapter 368 (Civil Rights Commission) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0368/
• HRS § 368-12 (Notice of Right to Sue; 90-day deadline) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0368/HRS_0368-0012.htm
• HRS § 368-17 (Civil action; remedies) — https://www.capitol.hawaii.gov/hrscurrent/Vol07_Ch0346-0398/HRS0368/HRS_0368-0017.htm
• Furukawa v. Honolulu Zoological Soc'y, 85 Haw. 7 (1997)
• Schefke v. Reliable Collection Agency, 96 Haw. 408 (2001) — attorney fees
• Sam Teague Ltd. v. Hawaii Civil Rights Comm'n, 89 Haw. 269 (1999)
• Hac v. Univ. of Haw., 102 Haw. 92 (2003) — sexual harassment direct filing
• Hawai'i Constitution Art. I, § 5 — https://lrb.hawaii.gov/constitution/
• EEOC Honolulu Local Office — https://www.eeoc.gov/field-office/honolulu/location

This template is provided for informational purposes only and does not constitute legal advice. Consult a Hawai'i-licensed attorney before filing any complaint or civil action. Verify all statutory citations against the current Hawai'i Revised Statutes and HAR Title 12.