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Nelson v. University of Hawaii12/11/2001
(3)) (emphasis added); Meritor Savings Bank, 477 U.S. at 65. Federal case law also adds two requirements to the elements of a HESH claim: (1) that the conduct be severe or pervasive; and (2) that the conduct be evaluated both from the subjective standpoint of the claimant and from the objective standpoint of a reasonable person of the claimant's gender in the claimant's position. See discussion infra. However, the federal courts have used varied and sometimes confusing language to describe the elements of a HESH claim.
The federal court in Ellison affirmed the definition of HESH, set forth in the EEOC regulations, as unwelcome sexual conduct that has "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 924 F.2d at 876 (citing 29 CFR § 1604.11(a)(3)) (emphasis added). In addition, Ellison provided that the claimant must establish that the conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Seeid. at 879; see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The "severe or pervasive" requirement discussed in Ellison and other federal cases must be read in context.
Although not clearly articulated, the court in Ellison discussed the "severe or pervasive" requirement in the context of balancing the need to evaluate the harasser's conduct from the viewpoint of the victim, which often requires an analysis of the different perspectives of men and women, and the need to ensure that employers are not held liable for trivial occurrences. 924 F.2d at 878-79. The court stated that,
n order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Id. at 879.
The court in Ellison found no inconsistency between the "severe or pervasive" requirement and the EEOC regulations. Id. at 877 (citing Meritor Savings Bank, supra). Indeed, there is no conflict between the regulations and the requirement that a claimant show the conduct was "sufficiently severe or pervasive to alter the conditions of employment" because the phrase "alter the conditions of employment" is merely a general reference to the statutory prohibition against discrimination in the "terms, conditions, or privileges of employment," see HRS § 378-2, supra, rather than a reference to the "interference with work performance" element in the regulations.
The addition of the "severe or pervasive" requirement to the regulations did not change the two discrete methods of establishing a claim described in the regulations: showing that the harasser's conduct had the purpose or effect of (a) unreasonably interfering with performance or (b) creating an intimidating, hostile or offensive environment. In other words, by stating that conduct must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment[,]" see, e.g., Ellison, 924 F.2d at 879, we do not believe that the federal case law intended to change the "or" to an "and." Under Ellison, unwelcome sexual conduct that has the effect of "unreasonably interfering with work performance," can, by itself, establish a prima facie case. See 924 F.2d at 877; see also Harris, 510 U.S. at 22 (distinguishing tangible interference with work performance from the creation of an abusive environment, describi
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