Haw. Civil Jury Instr. 16.26

Defendant(s) assert(s) the affirmative defense that

he/she/it/they is/are not liable for discrimination because

defendant’s(s’) [describe employment action, e.g., “hiring of

males only”] was necessitated by a Bona Fide Occupational

Qualification (BFOQ). To establish a BFOQ, defendant(s) must

prove both of the following elements:

1. The [describe employment action] was reasonably

necessary to the normal operation of

defendant’s(s’) particular business; and

2. The [describe employment action] was

substantially related to the functions of the

position in question.

A BFOQ cannot be based on assumptions, stereotypes, or the

subjective preferences of the defendant(s) or of other

employees, clients or customers.

If defendant(s) prove(s) this affirmative defense, then you

must find in favor of defendant(s) on the claim of

discrimination.

PRACTICE NOTE: The Hawaiʻi Administrative Rules recognize a

BFOQ based on sex (Haw. Admin. R. § 12-46-102); marital status

(Haw. Admin. R. § 12-46-122); age (Haw. Admin. R. § 12-46-132);

ancestry (Haw. Admin. R. § 12-46-172); and disability (Haw.

Admin. R. § 12-46-193(3)). However, there are no Rules

recognizing a BFOQ for discrimination based on other protected

classes, including race and color. Haw. Rev. Stat. § 378-2(8)

codifies the 2009 addition of the protected category of credit

history or credit report, subject to bona fide occupational

qualifications, as well as to exceptions stated in Haw. Rev.

Stat. § 378-2.7.

Haw. Rev. Stat. § 378-3(2); Sam Teague, Ltd. v. Hawaii Civil

Rights Commission, 89 Hawaiʻi 269, 280, 971 P.2d 1104, 1115

(1999).