The quick answer is extremely rarely. A bona fide occupational qualification is known as a BFOQ according to the Hawaii Civil Rights Commission.

The Hawaii Civil Rights Commission gives protection from discrimination in the State of Hawaii with regards to sex, race, ancestry, religion, color, handicapped status, age, marital status, assignment of income for child support obligations, arrest and court record, National Guard participation and sexual orientation.

The Hawaii Revised Statutes (HRS 378) prohibit any employer from discriminating in employment because of these factors except where a bona fide occupational qualification rests with the employer.

Let's look as some specific examples. Concerning sex discrimination, it is illegal to refuse to hire or promote a female because of her sex based on assumptions such as "women have a higher absence rate." It is illegal to refuse to hire or promote an individual based on stereotypical characterizations of the sexes such as "males are less capable of assembling intricate parts." It is illegal to refuse to hire or promote an individual based on their sex, even if there is an assumed preference by the co-workers or clients. For example, not hiring a qualified woman as an automobile mechanic or a clerk in a gun supply store because there is a feeling that clients would expect or prefer to work with a man, is an illegal practice.

So when is it okay to discriminate based on sex? When the job requires it. As an example, hiring a female model to model feminine apparel, or where public morals demand that one sex is appropriate for a particular function-such as a male to work as an attendant in a men's rest room.

Be careful! This is not as easy as it may appear. Most people think a male gynecologist hiring only female nurses to attend to patients is a BFOQ. The Hawaii Civil Rights Commission says NO! The logic is that the doctor is protecting himself from potential litigation. Even if it might make the patient more comfortable, it does not qualify as a BFOQ.

What about age discrimination? When is it legal? When as age requirement is specified by law, such as being 21 years or older to serve alcohol. In this case, you don't ask the applicant's age or their date of birth, but rather ask whether they meet the minimum age requirement set by law for the position.

Other things that you should know as an employer:

* An employer may not justify a reduction in the work force on the basis that older employees are paid more than younger workers.

* It is a violation to give different fringe benefits to married employees than to single employees.

* Any rule requiring employees to speak only English or other specified language at all times in the workplace, including work breaks, is a violation. An employer may, however, have a rule requiring that employees speak only English at certain times, where the employer can show that the rule is justified by a business necessity.

* Discrimination on the basis of language, including speech peculiar to a certain ancestry, a foreign accent, vernacular language and dialects within the same national group is a violation unless language is a BFOQ for the particular position involved. n Because height and weight requirements tend to exclude individuals on the basis of ancestry, they cannot be used except in the case of a BFOQ for a particular position.

Protect yourself and your company. Be certain that the hiring and promotion criteria that you use does not discriminate against anyone in these protected classes. If you have or create a BFOQ, play devil's advocate and make certain that you can prove both its validity and necessity for your business.

QUESTION AND ANSWER TIME
By Kevin Shiinoki, Transworld Systems, Inc.

It was great to see how many people responded to the "How much do you know about collections?" quiz that I wrote for this newsletter in August. Many people were doing some things that were not legal without knowing it, and a few others were doing things legally while thinking they were illegal. The main goal was to help you to properly do your own collections, and I am pretty sure we took a step in the right direction.

I received two questions that I wanted to mention because they apply to ALL businesses, and these are the latest concerns for businesses on the mainland as well as right here in the islands.

1) If my collection agency breaks one of the laws regarding collections, can I be sued?

YES, there is a legal risk. As a business owner, you have to know that you will be held responsible for the actions of the agency or credit reporting bureau that you hire. What does this mean to you? If the credit bureau that you use makes a mistake and someone's credit rating is damaged, it opens you up to legal risk. If your collection agency harasses a debtor, you and the agency could be sued. if your collection agency makes a collection call to someone who lives in a "closed state," and they do not have an office in that state, you are at legal risk. Note: A "closed state" is one where you have to be licensed and have an office in order to function as a collection agency or to do collection-type activities. If your agency "subs" out their collection cases to affiliate agencies in those states, you are also responsible if one of those agencies breaks one of the collection laws. What can you do about this? Ask if your agency will give you a Hold-Harmless Agreement, releasing you from legal risk if they inadvertently break a law.

2) What happens if I just write off my A/R as a business expense under "uncollectible accounts?" Everyone else does it.

This is a judgement call on your part. The first question is "Why wouldn't you want to receive money owed to you?" Unless you gain something by taking more of a loss, I would think you would want to be paid for your products or services. Have a third party work on the accounts. There are situations, of course, where you may not want to collect on really small receivables: Why spend $20 to collect on $3.25? This is just common sense.

The problem (or potential problem) that I can see is that in the event you are selected for an audit, the IRS is going to look at your write-off's. I spoke to an IRS agent who works on business related tax questions, and he said that one of the things that are done in an audit is that they call some of the people or companies who did not pay you to find out their reasons for not paying. If they just refused to pay, they may tell you to file a 1099-C (cancellation of debt) on that company or individual so that they can collect taxes on it since that is considered income to the delinquent party. If they tell the IRS that they did pay and can prove it, you could be charged with tax evasion and be responsible for taxes and penalties. What this all really boils down to is that you should use some common sense when looking at your A/R. If the money can be collected, do something about it! In this economic climate, you should be looking at every way you can to improve your bottom line.

If you have any questions you would like answered, please don't hesitate to call me at 524-4740. If your question can help other businesses also, I will be sure to include it in a future article.