Haw. Civil Jury Instr. 16.20

Plaintiff(s) claim(s) that defendant(s) wrongfully

discriminated against him/her/them.1 To prevail on this claim of

discrimination, plaintiff(s) must prove all of the following:

1. Plaintiff(s) [are/were employed by/sought employment

with] defendant [employer’s name];

2. Plaintiff(s) was/were [not hired/refused

employment/barred or discharged from

employment/discriminated against in compensation, or

in the terms, conditions, or privileges of

employment];

3. Plaintiff(s) is/are qualified for [his/her/their

position(s)/the position(s) sought];2

1 A plaintiff claiming discrimination has the burden of

establishing either (1) intentional discrimination against a

protected class to which the plaintiff belongs (also known as

“pattern-or-practice” discrimination); (2) unintentional

discrimination based on a neutral employment policy that has a

disparate impact on a protected class to which the plaintiff belongs

(also known as “disparate impact” discrimination); or (3) intentional

discrimination against an individual who belongs to a protected class

(also known as individual “disparate treatment” discrimination). See

Shoppe v. Gucci America, Inc., 94 Hawaiʻi 368, 377-78, 14 P.3d 1049,

1058-59 (2000). The vast majority of discrimination cases are of the

third variety, for which this instruction is appropriate.

2 When the claimed discrimination is on the basis of a

disability, this third 2 element of proof is modified to read as

follows: “Plaintiff(s) is/are qualified, with or without reasonable

accommodation, to perform the essential duties of [his/her/their

position(s)][the position(s) sought]. See French v. Hawaii Pizza Hut,

4. Plaintiff’s(s’) [state protected status—e.g., race,3

age,4 gender,5 disability,6 marital status,7 etc.8] was

a substantial or motivating factor in [the failure or

refusal to hire/the discharge/the discrimination in

Inc., 105 Hawaiʻi 462, 467, 99 P.3d 1046, 1051 (2004); Suzuki v. State

of Hawaiʻi, 119 Hawaiʻi 288, 298, 196 P.3d 290, 300 (App. 2008);

Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999) (overturned

due to legislative action in U.S. Pub. L. 110-325 (September 25, 2008)

§ 5).

3 See Furukawa v. Honolulu Zoological Society, 85 Hawaiʻi 7, 12-

13, 936 P.2d 643, 648-49 (1997). A person may be “discriminated

against” because of race in comparison to other “similarly situated”

employees. Similarly situated employees are those who are generally

subject to the same policies and subordinate to the same decision-maker as the plaintiff, i.e., those whose “relevant aspects” of

employment are similar. See Instruction No. 6.13.

4 See Shoppe v. Gucci America, Inc., 94 Hawaiʻi 368, 378, 14

P.3d 1049, 1059 (2000).

5 See Nelson v. University of Hawaii, 97 Hawaiʻi 376, 387, 38

P.3d 95, 106 (2001) (sex discrimination/sexual harassment); Sam

Teague, Ltd. v. Hawaii Civil Rights Commission, 89 Hawaiʻi 269, 279

n.10, 971 P.2d 1004, 1114 n.10 (1999) (sex/pregnancy discrimination).

6 See French v. Hawaii Pizza Hut, Inc., 106 Hawaiʻi 462, 99 P.3d

1046 (2004); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). A

plaintiff has the burden of establishing that: (1) he or she is an

individual with a “disability” within the meaning of the statute; (2)

he or she is otherwise qualified to perform the essential duties of

his or her job with or without reasonable accommodation; and (3) he or

she suffered an adverse employment decision because of his or her

disability.

7 See Ross v. Stouffer Hotel Co., 76 Hawaiʻi 454, 458-9, 879

P.2d 1037, 1041-42 (1994); Haw. Rev. Stat. §§ 378-1 & 378-2(1)(A). A

plaintiff has the burden of establishing that he or she was qualified

for the position, but suffered an adverse employment action because of

plaintiff’s status as a married or unmarried person, or because of the

identity and occupation of plaintiff’s spouse.

8 Other protected categories are stated in paragraphs (5)

through (8) of Haw. Rev. Stat. § 378-2, as noted in Instruction No.

16.19 at footnote 1.

compensation, or in the terms, conditions, or

privileges of employment];

5. Plaintiff(s) was/were harmed; and

6. The [adverse action] was a legal cause of

plaintiff’s(s’) harm.