§378-2 Discriminatory practices made unlawful; offenses defined. (a) It shall be an unlawful discriminatory practice:
(1) Because of race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:
(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment.
Guidance on how the law applies to employees/applicants with criminal records is provided by HRS §378-2, which states:
§378-2.5 Employer inquiries into conviction record. (a) Subject to subsection (b), an employer may inquire about and consider an individual's criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment; provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.
(b) Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position.
(c) For purposes of this section, "conviction" means an adjudication by a court of competent jurisdiction that the defendant committed a crime, not including final judgments required to be confidential pursuant to section 571-84; provided that the employer may consider the employee's conviction record falling within a period that shall not exceed the most recent ten years, excluding periods of incarceration. If the employee or prospective employee claims that the period of incarceration was less than what is shown on the employee's or prospective employee's conviction record, an employer shall provide the employee or prospective employee with an opportunity to present documentary evidence of a date of release to establish a period of incarceration that is shorter than the sentence imposed for the employee's or prospective employee's conviction.
In a decision issued in January 2015, Shimose v. Hawaii Health Systems Corporation, the Hawaii Supreme Court overturned the lower court’s decision and the intermediate court of appeals’ affirmation that a radiology technician who was denied employment by a hospital based on his felony conviction for possession with intent to distribute meth amphetamine had no claim for unlawful discrimination due to his criminal record.
Shimose was convicted of possession with intent to distribute crystal methamphetamine on August 28, 2001, and sentenced to 37 months in prison. While in prison, Shimose completed a bachelor's degree in philosophy at the University of Hawai'i, Hilo, and began investigating the radtech associates degree program at Kapiolani Community College (KCC). Shimose was released on March 7, 2003.
Shimose matriculated into KCC's radtech program in August of 2005. As part of the program, Shimose was assigned to HMC to complete a clinical rotation at HMC's imaging department. Shortly after the rotation began, HHSC/HMC initiated a suitability investigation into Shimose's background. HHSC/HMC concluded that Shimose's felony drug conviction disqualified him from participating in a clinical rotation at an HHSC facility, and removed him from the program. Shimose completed his clinical requirements at another medical facility and graduated from the radtech program in the spring of 2007.
Shimose applied for a vacant radtech position at HMC on June 15, 2007, and submitted a second application on July 30, 2007. In August of 2007, HMC verbally indicated that Shimose would not be hired for the radtech position. Shimose submitted a request for administrative review with HHSC/HMC on November 1, 2007. On September 16, 2008, HHSC/HMC sent Shimose a letter indicating that he was disqualified from consideration for the radtech position because of his conviction for possession with intent to distribute a controlled substance.
While in its motion for summary judgment the Hospital claimed there was a “rational relationship” between the job at issue and the plaintiff’s criminal conviction the Court found that every material fact had been sufficiently rebutted by Plaintiff.
For example, the Court stated:
HHSC/HMC has contended that its radtechs "have access to an array of drugs and related materials such as syringes and needles." Specifically, HHSC/HMC asserted that radtechs at its facility have access to crash carts, drug reaction boxes, anesthesia carts, and hospital storage areas. HHSC/HMC also asserted that access to patient charts provides information that can be used to divert drugs.
In this case, HHSC/HMC has not presented undisputed facts that establish a rational relationship between a drug conviction and an HMC radtech's proximity to locked crash carts and drug reaction boxes. Although crash carts and drug reaction boxes at HMC contain syringes and needles, neither syringes nor needles are controlled items. Syringes and needles are readily and cheaply available to the public. Furthermore, an HMC radtech's potential access to the non-controlled substances contained in crash carts and drug reaction boxes does not bear a rational relationship to a drug conviction. There is no reason why an employee with a drug conviction would pose a risk because he or she has access to, among other things, sterile water, Benadryl, sodium bicarbonate (baking soda), Zantac, or the other substances contained in crash carts and drug reaction boxes. None of the drugs in the crash cart or the drug reaction boxes at HMC are regulated by the federal Controlled Substances Act, and HHSC/HMC presented no rebuttal evidence tending to establish that these substances are controlled in any way.
The Hospital did not convince the Court that no genuine issues of material fact existed. This case demonstrates that employers need to be extremely careful and thorough in vetting the “rational relationship” test.